A-750 1500 Series
A-750-1501
Index
No. 730.4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May
16,1959
INTERPRETATION
SERVICE- BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Appeal Board Case No. 67-211-58 et al
AVAILABILITY OF NATIONAL
GUARD MEMBER WHILE ON TRAINING DUTY
A member of the National Guard is not available
for employment during his annual active duty for field training at a military
camp for a period such as two weeks, regardless of whether release from such
duty to accept employment is permitted and obtainable.
Referee's Decision: The referee overruled the separate initial
determinations of the respective local offices holding each claimant ineligible
to receive benefits effective for varying periods in each case from August 14
through August 31, 1956, on the ground that he was not available for
employment.
Appealed By: Industrial Commissioner
Findings of Fact: Claimants, factory workers, are members of
various units of the New York National Guard. During the periods in issue they
attended at summer camp and participated in the required field training. They
were at all times subject to military discipline and were not permitted to be
absent from their assigned places of duty without first obtaining official
permission, which may be granted or denied as a matter of discretion. Claimants
could not Look for work during the periods in issue, but might have been
excused from further training had employment been offered to them. It is the
policy of the National Guard to permit such releases from further training in
the individual case, provided that no detriment to the training program is
expected to result on account thereof. Applications to be excused require the
approval of various unit commanders within the military establishment, any one
of whom may deny the request.
Claimants received
payments of cash based upon rank and grade in addition to board and lodging in
return for the time and effort spent in training. Deductions from cash payments
were made for Federal income and Social Security taxes. Claimant CJS. received
a gross cash total of $62, prior to deductions, during the training period.
Appeal Board Opinion and
Decision: We do not agree with
the referee's conclusion, that claimants were available for employment, which
was based on the premise that they would have been released from military
training had employment been offered to them, according to statements from
their, respective company commanders. The evidence shows that approval of the
battalion commander, as well, was required, and in some cases even that of the
Division commander. Since approval was more than a mere formality, resting
within the sound discretion of the commander concerned, it is idle to speculate
as to what the decision would have been in any particular case if a job had
been offered to a guardsman applying for release from further training.
There is, however, a
more serious and fundamental objection to the referee's decision, which
erroneously assumes that availability for employment exists merely because a
claimant is willing to work.
Prior to 1953, there was
no statutory definition of availability for employment. What constituted
availability was decisional law on an ad hoc case by case basis. By Laws of
1953, Ch. 720, effective May 4, 1953, Section 591.2 of the Unemployment
Insurance Law was enacted. This Section reads as follows:
Availability and
capability. No benefits shall be payable to any claimant who is not capable of
work or who is not ready, willing and able to work in his
usual employment or in any other for which he is reasonably fitted by training
and experience. (Underscoring supplied. )
Conceding that claimants
were willing and able to work, there is no doubt that they were not ready to
work during their period of military training. The Law requires readiness to
work, not only in the event a job is offered, but at all reasonable times.
Claimants' military training precluded them from being ready at all times; the
availability requirement was not satisfied merely because there was a
possibility that they might be available on specified occasions when jobs might
be offered to them. Since claimants were at the summer camp for the purpose of
military training, rather than to look for work, they were withdrawn from the
labor market, no matter how praiseworthy or compelling their motives. Besides,
the requirement that a claimant be available for work includes the obligation
to make an independent search, the extent of which will vary with
circumstances; it is not sufficient merely to wait until employment is offered.
Claimants did not, indeed they could not, make an independent search for work
during the period in issue. The foregoing makes it clear that the cases cited in
the Industrial Commissioner's brief (Appeal Board #2387-40, #19,077-49 and
#21,025-49), insofar as they are based on the assumption that claimants engaged
in active military duty are available during such period if their releases may
be effected tor the purpose or accepting an offer of employment, are erroneous
in principle.
The basic precedent was
established in Appeal Board, 2387-40 prior to any statutory definition of
availability. There, the Board found that an enlisted man in the National Guard
was ordered to camp for a two-week training period for which he received
maintenance and one dollar per day for incidental expenses and
that the established policy of the National Guard was to release men promptly
in all cases where an offer of employment was made to an enlisted man
unemployed at the time of entering training duties in camp. On those facts,
mindful of the then precedents which did not require an active search for work.
the Board found such claimant available.
Appeal Board, 52,319-55
was decided after the enactment of Section 591.2 of the Law and after numerous
Board decisions requiring independent search for work in many cases as an overt
act to establish availability. There the Board held that:
* * * The claimant in
the instant case is an officer. His release from active duty was not
established to exist as a matter of right, pursuant to a
predetermined policy prescribed for the benefit of unemployed officers
constituting the officers corps of which claimant was a member. Whether or not
claimant would have been able to effectuate his release from active duty was
dependent upon the approval first obtained from his commanding officer, whose
decision, as to whether an interview for possible job placement constituted a
valid and sufficient reason to relieve claimant from the obligations of his
orders, admittedly was a matter resting solely within the commanding
officer's discretion. Under such circumstances, the availability of
claimant for a timely interview, in the event a job referral were offered to
him, becomes highly speculative, since his application for a release from duty
was subject to the judgment of the person upon whose discretion he was
compelled to rely for a decision, and also to the possible contingency of
delay. This lack of a definite assurance of either an immediate release or
ultimate favorable action on his application makes the question of claimant's
availability at the time in issue highly doubtful. (underscoring supplied )
* * *
We can perceive no
factual distinction between the instant case and Appeal Board, 52,319-55. Since
claimant's release for employment herein depended on the discretion of not only
the commanding officer but in some instances on that of the battalion commander
and regimental commander, there is no definite assurance of either immediate
release or ultimate favorable action. Claimants must be ruled unavailable to
the extent that the cases cited may be in conflict with this opinion, they are
hereby overruled.
Although there is no
initial determination to that effect and although the Industrial Commissioner's
supplemental memorandum on appeal urges, for reasons of policy, that claimants
be found to be unavailable for employment, rather than not totally unemployed,
there is grave doubt whether they were in fact totally unemployed. They
received substantial payments in return for the services which they performed.
They were treated, both by National Guard and Federal government authorities,
for whose account taxes were deducted from their earnings, in a similar fashion,
as employees. Absent the fact that such moneys were derived from military
service, there is no doubt that an initial determination of lack of total
unemployment would ordinarily issue. Decision on such question would appear to
be unnecessary, however, since claimants, by initial determinations of the
local offices were properly found to be not available for employment. (See
Appeal Board, 52,319-55 wherein the Board found lack of total unemployment in
similar circumstances).
The several initial
determinations of the respective local offices holding each claimant ineligible
to receive benefits effective for varying periods in each case, from August 14
through August 31, 1958, on the ground that he was not available for
employment, are sustained. The decision of the referee is reversed. (May 4,
1959)
COMMENTS
1.
Cases of this kind
should be handled exclusively on the issue of availability and
as set forth in the release on "Reservists on Active Duty"
(A-710-36).
2.
The principle is not
limited to members of the National Guard but applies also to members of other
Reserve components.
3.
Release A-750-851; is
now obsolete and should be so marked. It will be deleted from the Service at
the time of the next revision.
Index
1580B-3
STATE
OF NEW YORK DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
29, 1959
INTERPRETATION
SERVICES- BENEFIT CLAIMS
MISREPRESENATIONS AND RECOVERY
OF OVERPAYMENTS
Appeal Board Case Number 68,774-59
Misrepresentation as to Employment in Two Weeks at Same Interview
Falsely certifying
at one interview to total unemployment during two statutory
weeks constitutes a single offense.
Referee's Findings of
Fact:: A hearing was held at
which claimant and representatives of the Industrial Commissioner and of the
employer appeared and testified. Claimant, a taxi driver, filed for benefits
effective December 15, 1958, and refiled effective February 16, 1959. By
initial determination effective December 6, 1958, he was disqualified for 42
consecutive calendar days for voluntary leaving of employment without good
cause. Effective December 22, 1958 through February 15, 1959, he was ruled
ineligible for failure to comply with reporting requirements. By initial
determination amended at the hearing, effective February 21, 28 and March 1, he
was ruled ineligible for lack of total unemployment on those days. His benefits
were ruled to be forfeited for 40 effective days because of a willful false
statement to obtain benefits. Claimant was employed as a taxi driver for about
three or four months to December 5,1958, on a commission basis. He resigned
because he did not believe he was getting sufficient work. He was required to
shape up daily and he was given work whenever there was a taxi available. He
could have remained at his job had he so desired. He had no immediate and
definite prospect of employment elsewhere at the time he left. Claimant
reported to the lnsurance office on December 16 and filed an original claim for
benefits. At that time he was informed by a representative of the insurance
office that he did not have sufficient weeks of employment during his base
period to qualify for unemployment insurance. On December 29 a notice of
determination was mailed to him advising him of his nonentitlement to benefits
because of lack of sufficient weeks of employment in his base period. This
notice informed him that he was to continue to report to the insurance office
as directed in the event he disagrees with the initial determination. Claimant
did not report to the insurance office thereafter until February 16, at which
time he established his entitlement to benefits. He was not misled or
misdirected by any representative of the insurance office. Claimant worked on
February 21 during the statutory week ending February 22. During the statutory
week ending March 1 he worked on February 28 and March 1, earning approximately
$21.30. He reported to the insurance office on March 3 and on that date
certified that he was totally unemployed during the statutory week ending
February 22 and March 1. The insert to his insurance booklet was marked with
letter "N" for the days on which he worked. He made one certification
on March 3 for the two statutory weeks ending February 22 and March 1. The
initial determination of wilful misrepresentation is based upon the falsity of
this certification.
Referee's Opinion and
Decision: Claimant advanced no
meritorious reason for leaving his job on December 5. Although he was not
getting steady work, he was permitted to work when there was a cab available
for him. The Unemployment Insurance Law makes no distinction between part-time
and full-time employment. Since he had no immediate prospect of employment
elsewhere at the time he left, he was correctly disqualified for voluntary
leaving of employment without good cause under the law. Claimant advanced no
meritorious reason for not reporting to the insurance office between December
22 and February 15. The notice of initial determination which was mailed to him
advised him to continue to report as directed wile he was attempting to
establish the validity of his claim. His failure to report to the insurance
office as required during the period in issue was due to his negligence.
Accordingly, he was correctly ruled ineligible for failure to comply with
reporting requirements during the period. Since claimant conceded he worked on
February 21, 28 and March 1, he was correctly ruled ineligible for lack of
total unemployment on those days. I reject his contention that he erroneously
reported total unemployment on those days because of a "mistake". The
credible evidence establishes that he knowingly made a false statement for the
purpose of obtaining benefits. I reject the contention of the Industrial
Commissioner's representative that claimant's wilful misrepresentation must be
treated as two separate false statements, since he certified incorrectly to two
weeks of unemployment. Claimant made one false statement and his benefits
should be forfeited on the basis of one false certification and not of two
certifications. The initial determinations of voluntary leaving of employment and
of failure to comply with reporting requirements are sustained. The initial
determination of lack of total unemployment, as amended is sustained. The
initial determination of wilful misrepresentation is modified to the extent
that the forfeiture is reduced from 40 to 20 effective days, and as modified is
sustained. (April 2, 1959).
Appeal Board Opinion and
Decision: These are cross
appeals from the decision of the referee filed April 2, 1959. The Industrial
Commissioner appeals from the said decision insofar as it modifies the initial
determination of the local office holding that claimant, a taxi driver,
wilfully made false statements to obtain benefits by reason of which a
forfeiture of 40 effective days was imposed as a penalty in reduction of claimant's
future benefit rights, by reducing the number of effective days to be forfeited
as a penalty from 40 to 20. The claimant appeals from said decision insofar as
it sustains the initial determinations of the local office (1) holding claimant
ineligible to receive benefits effective December 22, 1958 through February 15,
1959, on the ground that he failed to comply with reporting requirements, (2)
disqualifying claimant from receiving benefits for 42 consecutive calendar days
effective December 6, 1958 on the ground that he voluntarily left his
employment without good cause and (3) holding that claimant wilfully made false
statements to obtain benefits, by reason of which a forfeiture of 40 effective
days was imposed as a penalty in reduction of claimant's future benefit rights,
as modified by the referee to reduce the number of effective days to be
forfeited as a penalty from 40 to 20 days, on the ground that claimant's wilful
misrepresentation to obtain benefits was a single offense. A hearing was held
before the referee at which all parties appeared and were accorded a full
opportunity to be heard. The Board considered the brief submitted on behalf of
the Industrial Commissioner and the written statement submitted by claimant on
appeal. After a review of the record including testimony and evidence adduced
before the referee and deliberation having been had thereon, and having found
that the referee's findings of fact and conclusions of law are fully supported
by the record 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 the
Board. The Board is of the opinion that the referee made proper findings of fact
and correctly determined the issues involved in this case. The decision of the
referee is affirmed. (May 29, 1959).
Index
No. 1460A-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August 20, 1959
INTERPRETATION
SERVICE-BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without Work
Vacation Period
Appeal Board Case Number 68,256-59
Verbal Designation of Vacation Period
A specific agreement
between the employer and an employee on the time for vacation although not in
writing, satisfies one of the conditions of Section 591.3 so that there may be
a "vacation period" during which a claimant is ineligible for benefits.
Appeal Board Decision: The Board affirmed the decision of the referee
filed October 31,1958, overruling the initial determination of the local office
holding claimant ineligible to receive benefits effective August 4 through
August 17, 1958 on the ground that such interval, as to claimant, constituted a
vacation period during which no benefits were payable to claimant pursuant to
Section 591.3 of the Unemployment Insurance Law
Application to Reopen : By Industrial Commissioner
Findings of Fact: Claimant worked as a piece worker in the
material sales department of a watch manufacturing firm for about 10 years.
Soon after claimant was hired, she was advised that the employer granted annual
vacations to its employees and that vacation pay would be paid in amounts depending
upon seniority. The establishment was not unionized. In the two years preceding
1958, claimant took her vacation during the first two weeks of July and
received vacation pay in accordance with the foregoing arrangements.
In June 1958, claimant's
supervisor asked her to submit her preference for a vacation period. Shortly,
thereafter, claimant advised her supervisor that she had selected the two weeks
commencing August 4, 1958. Claimant had been working on an intermittent basis
at this time and that fact, among other reasons, prompted claimant to advise
her supervisor at that time that she preferred not to take any time off for
vacation but preferred to continue working and to receive the :vacation monies
due to her on the basis of her seniority. The employer refused to grant
claimants request and insisted that she take her vacation during the two weeks
previously designated.
In the week immediately
preceding August 4th claimant worked the full week. She then went on vacation
leave for the two designated weeks. She returned to work on August 18th and in
the week ensuing she worked a full week. On August 1st, the
last payday before the vacation period, she received her pay for the preceding
week and received the sum of $171.48 designated as vacation pay. There was some
discrepancy as to the exact amount of vacation pay and this error was later
corrected but these facts have no bearing on the issue herein.
There was no collective
bargaining agreement in existence at the establishment. There was no written
contract of hire between the employer and claimant. The hiring and the
arrangements and practices flowing therefrom were made orally. The employer did
not designate in writing the claimant's two week vacation period.
Claimant refiled for
benefits effective Monday, August 4, 1958, the first day of her vacation
period. The local office issued an initial determination holding that claimant
was ineligible to receive benefits beginning August 4, 1958 and ending August
17, 1958 on the ground that this was a "vacation period with pay." It
was indicated on the initial determination that the basis therefor was that
"during this period you were on a scheduled vacation paid by your employer
and were substantially fully employed in the week before and in the week after
the vacation." Claimant maintained at the local office and before the
referee that her vacation money was an accrual as a result of her prior
employment and had nothing to do with the abstention from work from August 4
through August 17. She further maintained that due to her lack of full
employment in the five months preceding this vacation period she was en titled
to receive benefits for the two week period.
Appeal Board Opinion and
Decision: The referee overruled
the initial determination on the ground that "One of the conditions
enumerated in Section 591.3(f) had not been met, and that, therefore, the
period at issue was not to be considered a "vacation period." That
provision is as follows:
(f)
The term "vacation period, " as used in this subdivision, means the
time designated for vacation purposes in accordance with the collective
bargaining agreement or the employment contract or by the employer and the
claimant, his union, or his representative. If either the collective bargaining
agreement or the employment contract is silent as to such time, or if there be
no collective bargaining agreement or employment contract, then the time so
designated in writing and announced to the employees in advance by the employer
is to be considered such vacation period.
The referee reasoned
that since there was no collective bargaining agreement, that the employment
contract did not designate any time for vacation purposes and that the vacation
period was not designated in writing and announced by the employer to the
employees in general or to the claimant in particular, either in advance of the
vacation period or at any time by the employer, the time taken by the claimant
did not constitute a vacation period as defined by Section 591.3(f), and
consequently claimant was entitled to benefits for the two week period.
The referee's
interpretation of the provisions of Section 591.3 and particularly subdivision
(f) thereof, nullifies the very purposes of this section of the Law as applied
to this case. The essence of what is deemed to be a vacation period during
which no benefits shall be payable to a claimant is found in Section 591.3(a)
(1), (2) and (3) which reads as follows:
(a) A
"vacation period" during which no benefits shall be payable to a
claimant is a period
1.
during which a claimant
has a temporary respite from work; and
2.
for which entire period
such claimant is given a vacation payment or allowance by his employer directly
even if such payment or allowance be deemed to be remuneration for prior
services rendered as an accrued contractual right; and
3.
where such claimant is
substantially fully employed by such employer both during the last work week
before and the worst week immediately following such period.
The undisputed facts
establish conclusively the application of the provisions above quoted. Claimant
had a temporary respite from work. For this entire period, claimant was given
vacation pay by her employer directly, even if the claimant regarded such
payment as remuneration for prior services rendered as an accrued contractual
right. Claimant was substantially fully employed by the employer both during
the last work week before and the work week immediately following such period.
Section 591.3(f)
encompasses a number of situations some of which do not apply to the facts,
herein. Straining from such provision the language which is inapplicable on the
facts herein, the pertinent words are:
The
term "vacation period, " as used in this subdivision, means the time
designated for vacation purposes… by the employer and the claimant….
The foregoing clear
definition governs the situation here. Claimant's vacation period was the time
designated for vacation purposes by the employer and the claimant. The employer
asked claimant to designate her preferred vacation period. She selected the two
weeks commencing August 4, 1958. Thus there was a mutual designation of time
for vacation purposes by both employer and claimant, which resulted in a mutual
agreement to that effect. Claimant' s subsequent request to withdraw her
designation and for permission to work during the designated two weeks did not
change the original designation and agreement between claimant and her employer
particular]y since such request was denied by the employer.
Claimant has sought to
negate the force and effect of Section 591.3 by urging that her vacation time
was not so designated in writing. The referee accepted this contention
and, on the theory that such omission made inapplicable the statutory
definition of "vacation period, " he ruled claimant to be eligible
for benefits during the precise period which had been mutually agreed upon as
the time during which she would have a paid temporary respite from work.
We hold that such a
construction and interpretation of the statute does violence to its intent and
purpose. The statute is designed specifically to prevent the payment of
unemployment insurance benefits during the period for which the employee
receives vacation monies for the very purpose of refraining from work and
obtaining a temporary respite therefrom.
Section 591.3 was added
to the statute by Chapter 387 of the Laws of 1958 and became effective March
26, 1958. The enactment followed a long period of controversy on the subject of
vacation pay. Thousands of disputes respecting eligibility during so-called
vacation periods were adjudicated and since there was no statutory guide as to
the policy of the State, the varying facts in each case produced different
results. (See e.g Matter of Naylor 306 N.Y. 794 rev'g Appeal
Board, 30,727-52; Matter of Chichipas 3 App. Div. 2d 880 aff'g
UCV217-55 and Matter of Dresher, 286 App.Div.591 rev'g Appeal Board
47,603-54.) After considerable study and consultation with representatives of
labor and management and the Unemployment Insurance Advisory Council, the
Legislature enacted Section 591.3 to systematize and regulate the eligibility
status of unemployment insurance applicants during so-called vacation periods
and to reduce to a minimum the controversies on this subject.
We feel it would do
violence to the purpose and intent of the Law as well as to the public policy
of the State to construe the vacation period provisions of the Law in such
manner as to justify the referee's decision. It is common knowledge that the
vast majority of employing establishments throughout the State, especially the
smaller ones, do not designate vacation periods in writing. Such arrangements
are frequently made orally between supervisors and workers. Typical of these
situations is the usual vacation arrangements for the vast majority of clerical
and executive employees. Rarely is there a written formal designation of the
annual vacation period. If the referee's construction of Section 591.3 of the
Law were accepted such employees would be deemed to suffer "unemployment
for which benefits are payable". It is obvious that the Legislature never
contemplated such a result.
We interpret that part
of Section 591.3(f) which requires a written designation to apply only in those
instances where a contemplated plant shut down or a mass lay off for vacation
purposes makes it reasonable to expect the employer to communicate that fact to
the entire staff in writing in advance. We believe that the Legislature did not
intend to create an escape hatch to allow payment of unemployment insurance
benefits simultaneously with vacation pay in situations as in this case. We
deem it sufficient that the vacation period herein was so designated by the
employer and the claimant in advance and we further hold that the omission of
the writing does not render the section ineffectual. We hold that claimant is
not entitled to receive benefits for the period August 4 through August 17, 1958
on the ground that such interval constituted a paid vacation period and
consequently she was not totally unemployed.
The application to
reopen and reconsider the decision of Isidore Schechter, a member of the Board,
dated January 7, 1959 (Appeal Board, 66,931-58) is hereby granted and the said
decision is hereby rescinded. The initial determination of the local office is
sustained. The decision of the referee is reversed. (August 5, 1959)
Index
No 1610-5
NEW
YORK STATE DEPARTMENT LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September 2, 1959
Interpretation
Service- Benefit Claims
Voluntary Leaving of Employment
Misconduct cases
Appeal Board Case Number 69,737-59
REVOCATION OF LICENSE PRIVATE AUTOMOOBILE
Discharge from
employment requiring the operation of a motor vehicle, because claimant's
drivers license was revoked, is considered a voluntary leaving of employment
without good cause when the claimant should have known that his action
(speeding) could result in such revocation of license, even though he committed
the offense while operating his own automobile in personal business
Referee's Decision: The referee overruled the initial
determination of the local office disqualifying claimant from receiving
benefits for 42 consecutive calendar days effective March 4, 1959 on the ground
that he voluntarily left his employment without good cause by provoking his
discharge.
Appealed by : Industrial Commissioner
Findings of Fact: Claimant, a truck driver and auto-parts clerk,
filed a claim for benefits effective March 9, 1959. Claimant was primarily
employed as a chauffeur and was discharged by his employer on March 3, 1959
because claimants license to operate a motor vehicle had been revoked. After
claimant had been convicted of several traffic violations, he was warned by the
Motor Vehicle Bureau that further infraction of the Motor Vehicle Law might
result in a revocation of his license. Nevertheless, claimant thereafter
operated his own automobile while engaged in personal business at a rate of
speed in excess of that permitted by law. As a result, he was convicted of that
offense and his license was revoked.
By initial determination
effective March 4, 1959, claimant was disqualified from receiving benefits for
42 days for voluntarily leaving his employment without good cause in that he
provoked his discharge. At the time of claimant's discharge
his employer had no work for him other than chauffeur.
Appeal Board Opinion and
Decision: We do not agree with
the conclusion of the referee that the termination of claimant's employment was
not equivalent to a voluntary leaving of employment without good cause.
The referee relied upon
Appeal Board, 59,224-57 wherein a claimant lost his license to operate a motor
vehicle as a result of a violation of the Motor vehicle law while not on
employer's business. In that case the Board did not pass upon the question as
to whether or not such conduct was a provoked discharge, but found that
claimant was unavailable for employment during the period at issue.
Here, the proximate
cause of claimant's discharge was the loss of his license due to an unlawful
and improper operation of a motor vehicle. The claimant had been warned by the
authorities that further infraction of the Motor Vehicle law might result in a
revocation of his license. Nevertheless, claimant thereafter operated a motor
vehicle at an excessive rate of' speed, was convicted and his license was
revoked. Claimant was fully aware that his employment was dependent upon his
right; to operate a motor vehicle and his action, despite the warning, was a
deliberate act of commission with foreseeable consequences. Claimant knew or
should have known that as a condition for the retention of his job, it was
incumbent. upon him to retain his license to operate a motor vehicle. He knew
or should have known that the operation of his motor vehicle at an unlawful
rate of speed was likely to result in the loss of his license and would thus
produce his failure to comply with a reasonable condition of his employment.
Claimant must be deemed
to have voluntarily left his employment without good cause. (Matter of
Malaspina, 309, NY 413, revg. Appeal Board, 42,606-54)
The initial
determination of the local office disqualifying claimant from receiving
benefits for 42 consecutive calendar days on the ground that he voluntarily
left his employment without good cause is sustained. The decision of the
referee is reversed. (August 10, 1959)
Index
No. 1207B-7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 10, 1959
Interpretation
Service-Benefit claims
Refusal of Employment
Wages-prevailing
MATTER of MATUEVICH (15 AD 2nd 387)
Appeal Board Case Number UCFE-284-58
REFUSAL - WAGES: SIMILAR OCCUPATIONS - DIFFERENT INDUSTRIES
Refusal or otherwise
suitable employment as a pipe coverer at a shipyard is without good cause when
the offered wages are those which prevail for such occupation in the marine
industry even though the prevailing wages for pipe coverer in the building and
construction industry are substantially higher and even though the occupational
code classification is the same for pipe coverer in both these industries, when
it can be found as a fact, that the work of a pipe coverer in the marine
industry is different from that in the building and construction industry
Referee Decision: The referee sustained the initial
determination of local office disqualifying claimant from receiving benefits
effective May 28, 1958, on the ground that claimant, without good cause refused
employment for which he is reasonably fitted by training and experience as
modified by the referee to make same effective June 2, 1959.
Appealed by: Claimant
Findings of Fact: Claimant a pipe coverer, refiled for benefits
effective April 2, 1958, and registered for Employment. By an initial
determination he was disqualified from receiving benefits effective May 28,
1958 on the ground that without good cause he refused employment for which he reasonably
fitted by training and experience. He was charged with an overpayment of
benefits in the sum of $45 for the statutory week ending June 1, 1958. Claimant
requested a hearing. The referee modified the initial determination by making
the effective date of the disqualification June 2, 1958, having found that the
refusal of employment occurred on that date rather than on May 28. The referee
held accordingly that claimant was not overpaid. Claimant appealed to the Board
from the adverse portion of the referee's decision.
Claimant is a fully
qualified pipe coverer, having been employed in that occupation for at least 20
years. In that period claimant worked about 50 percent of the time in marine
work at various shipyards and, during the balance of the time he worked in the
building and construction industry. Claimant is not a member of any union. When
he worked in the building and construction industry he worked under a permit
card issued to non-members by the dominant union having jurisdiction over
persons employed in the building and construction industry. During claimant's
base period and from about December, 1956 to October, 1957, claimant was
engaged in marine work at a shipyard operated by the United States government.
Although the duties of a
pipe coverer in the marine industry are substantially similar to duties of a
pipe coverer employed in the building and construction industry, the two are
recognized as separate and distinct. Separate unions have jurisdiction over
persons employed in the marine industry and those employed in the building and
construction industry. Both industries are heavily unionized. The wage rates
paid to persons working in the marine industry are established by the
agreements between the operators of the shipyards and the union having
jurisdiction over workers in the shipyards. The wages paid to persons employed
in the building and construction industry are established by agreement between
the dominant union in the building and construction industry and firms engaged
in that industry.
The prevailing wage
during the period in issue for persons employed as pipe coverers in the
building and construction industry was $4.20 an hour. The prevailing wage
during the period in issue for pipe coverers employed in the marine industry
was no more than $2.75 an hour. Collective bargaining agreements fixed the
terms and conditions of employment of marine pipe coverers employed at the
various privately owned shipyards in the locality. The wages paid to pipe
coverers employed at the shipyard owned and operated by the United States
government although not fixed by the terms of any collective bargaining
agreement, were within 10 per cent of. the wages paid to persons employed at
the privately operated shipyards. During emergency periods, the operators of
the various shipyards occasionally engaged contracting firms to perform pipe
covering services at the shipyards. Pipe coverers employed by such contracting
firms are usually paid a wage which is higher than the prevailing wage for the
marine pipe coverer but lower than the prevailing wage of pipe coverers
employed in the building and construction industry. Only a small minority of
pipe coverers employed in the marine industry are employed by contracting
firms. In the past, claimant has worked at times for such contracting firms and
when he was assigned by them to marine work he received the wage usually paid
to pipe coverers employed by such contracting firms.
Skilled pipe coverers
employed at the government owned shipyards are paid $2.53 an hour at the start
of employment and are advanced by successive steps to an ultimate wage of $2.75
an hour. The second step is $2.64 an hour and is usually paid after the worker
has been in the employ of the government for six months. Based on the seniority
which claimant had acquired as a result of his employment at the government
owned shipyard during his base period, he became entitled to a wage of $2.64 an
hour.
On May 28, 1958 claimant
was referred to the government owned shipyard at which he was employed as
aforesaid for re-employment as a pipe coverer. He accepted the referral and
reported to the New York Naval Shipyard on May 28, but no offer of employment
was then made. He was directed to return to the shipyard on Monday June 2.
Claimant complied with such direction and when he returned on June 2, he was
offered re-employment as a first class pipe coverer at the second wage step,
namely, $2.64 an hour. Claimant refused the employment because he was denied
the top rate of $2.75 an hour which he believed he merited. He subsequently
maintained that he was justified in refusing any employment as pipe coverer at
a wage less than the prevailing wage in the building and construction industry,
namely $4.20 an hour.
Appeal Board Opinion and
Decision: It is contended on behalf
of claimant that the prevailing wage for the work refused by him was that which
prevails in the building and construction industry and that consequently the
wages offered to claimant were substantially less favorable to him than those
prevailing for similar work in the locality. It is contended on behalf of the
claimant that notwithstanding the conditions which actually exist in the marine
industry, no legal recognition may be given to any difference between the
marine industry and the building and construction industry. In effect, it is
contended by the claimant that the referee's decision implies that there may be
two prevailing wage rates for the identical work.
The contentions so
advanced by the claimant lack validity. If the work of a pipe coverer in the
marine industry constituted the same occupation as that performed by a pipe
coverer in the building and construction industry, there might be merit to the
contention advanced by claimant. However, recognition must be given to the
facts that the industries are separate and distinct and, despite the similarity
of the work performed by a pipe coverer in each of the industries, they are ,
in truth, separate occupations. This Board has been called upon previously to
determine whether work in the marine industry was different work from that
performed in the building and construction industry and in Appeal Board,
9,576-43 we answered the query by stating:
A
building and construction electrician is employed in a distinct and
well-recognized trade, namely, the building and construction trade. A marine
electrician is employed in a different and separate trade, that is, the
shipbuilding trade. The two industries are wholly independent of each other. It
is true that many of the skills possessed by building and construction
electricians may be utilized in jobs as marine electricians. However, this fact
alone does not destroy the essential differences between the two occupations.
Each occupation, for long past, has been and still is designated by the United
States Employment Service under separate occupational code classifications to
wit: for building and construction electricians the code is 4-97.010, while;
for marine electricians, it is 4-97.210. The modes and methods of operation and
the types of locale for the performance of the work in the building and
construction field are different from those in the ship building field. Each
trade has its own union. Each has a different union rate of pay, the difference
being a very substantial one, seventy-five cents per hour greater for building
and construction electricians. The difference between the two occupations is
further revealed by the fact that two separate stabilization agreements were
executed between the representatives of the United States Government, management
and labor, one for building and construction defense projects and the other
confined to exclusively to shipbuilding. We believe that when a building and
construction electrician is referred to a job as a marine electrician, he is
being referred to a job in a "different occupation" within the
intendment of said procedure….
To the same effect see
also Appeal Board 9,077-43.
From the foregoing it is
apparent that the work offered to claimant in the marine industry must be
deemed to be different work from that performed in the building and
construction industry. We are not unmindful that unlike the occupation of
electrician the marine pipe coverer is not separate occupationally classified
from the building and construction asbestos worker or pipe coverer. We do not
deem that fact to be significant in or controlling in view of the realities of
the situation as evinced by the practices in the trades and the distinctions
recognized by the unions having jurisdiction over the affected workers.
Consequently, the test with regard to the adequacy of the wage offered to
claimant is that which prevails for similar work in the marine industry. The
record establishes conclusively that the wage offered to the claimant was not
substantially less favorable to him than that prevailing for work similar to
that which was offered him.
We have previously held
that there can only be one prevailing rate for an industry and that such rate
must be determined on the basis of the entire industry (Appeal Board 6,624-41
and Appeal Board 20,872-49). Our conclusion set forth above is not in conflict
with that rule. The fallacy in claimant's argument is that he overlooks the
difference between the two industries and seeks to justify his refusal of the
offered employment on the ground that the wages offered to him are lower than
those prevailing in a different industry, notwithstanding the fact that such
wages compare favorably with the wages paid in the industry in which he was
offered employment.
In view of the fact that
the two industries are separate and distinct, there might be justification for
claimant's refusal of the offered employment on the ground that he was not
reasonably fitted by training and experience for the work offered if he had had
no prior experience in marine work, (see Appeal Board, 9,576-43 and Appeal
Board, 9,077-43 supra). In the instant case however, claimant has experience in
both industries. He, therefore; is reasonably fitted by training and experience
for work in either of the industries. Under these circumstances the following
language of the Appellate Division in the Matter of Delgado"
278 App. 237, reversing Appeal Board, 23,119-50 is applicable:
"Where
a person is reasonably fitted for more than one kind of employment he does not
bring himself within the benefits provided by the statute if he refuses one
kind merely because he prefers the other", also see Matter of
Tucker, 8 App. Div. 2d 859 reversing Appeal Board, 60,507-57
We therefore, hold that
claimant was offered employment for which he was reasonably fitted by training
and experience and that the wages offered to him where not substantially less
favorable to him than the wages prevailing for similar work in the locality.
Claimant's objection to the wage rate offered, therefore, lacks validity and
his refusal of employment was without good cause.
Since the record
establishes that the offer of employment was not actually completed until June
2, claimant' s refusal thereof had not occurred until that day and
consequently, the referee correctly modified the initial determination by
changing the effective date thereof, to June 2 and by ruling that there was no
overpayment.
The final argument
raised on claimant's behalf to the effect that the payment of benefits to
claimant for the-week ending June 1, constituted an initial determination that
there had been no refusal of employment by claimant without good cause and that
the Industrial Commissioner is bound thereby, is entirely without merit.
Section 597.3 of the law specifically authorizes the Commissioner to review determinations
and issue new determinations in accordance with the provisions of Article 18 of
the Law. The initial determination as modified by the referee to be effective
June 2, 1958 is sustained. Claimant was not overpaid. The decision of the
referee is affirmed. (October 16, 1959)
Dissenting Opinion
We respectfully dissent
from the majority decision of our colleagues. We take the position that there
is only a single prevailing wage for pipe coverers whether or not they work in
building construction work or in shipyards. We do not accept the distinction
draw in the majority decision that work as a pipe coverer in a shipyard is in
one industry and that work as a pipe coverer in the building and construction
field is in a separate and distinct industry.
The Dictionary of
Occupational Titles, Volume I, which is concerned with definitions of titles,
published by the United States Department of Labor, Bureau of Employment
Security, has only one occupational listing for pipe coverer
under Code No. 5-33.110. This definition includes work as a pipe
coverer in ship building and boat building and repairs. Under the listing
of pipe coverer there is a cross reference to asbestos worker, general. In
Volume II of the Dictionary of occupational Titles, which is concerned with
occupational classifications, lists Code No. 5-33.110 for asbestos worker,
general (construction). Under the same heading and code number is listed pipe
coverer (ship and boat building and repairs). This latter listing has an
asterisk in front of it which is explained in the introduction of Volume II as
follows: "A few titles contained in the group arrangement are preceded by
an asterisk. The asterisk signifies that such a title receives the same
code as the coded title appearing above it; … All asterisk titles
are of the same occupational significance as the coded titles which they are
associated". The foregoing listings demonstrate conclusively that the
official definition of the title of pipe coverer or asbestos
worker, general, and the occupational classification of pipe
coverers makes no distinction between coverers in construction work and in ship
work.
Convincing proof that
there is absolutely no difference between a pipe coverer working in the
construction field and one who works in the ship field is demonstrated by
claimant's own work experience over a period of 20 years. He worked both in
construction and ship work without any change in the application of his skills.
He moved from one field to the other freely and did exactly the same work whether
he worked in a shipyard or in building construction. It is conclusive to us
that a pipe coverer is in a single occupation regardless of the particular
industry in which his services are employed. This is a common situation in many
occupations, notably in the clerical field. Stenographers, typist, clerks,
messengers, or office boys although constituting distinct and separate
occupations, may be employed in many varied industries. Yet, for unemployment
insurance purposes, refusals of job offers are generally considered with
relations to such occupations rather than to the industries in which offers are
made. The Appellate Division has rejected the industry concept in cases of
refusal of employment and held that a stenographer must accept suitable work in any industry
(Matter of Greaser, 279 App. Div. 702, reversing Appeal Board 26,862-50;
that an Italian baker refuses employment without good cause if he will not
accept an offer to bake bread in an American bakery, Matter of Strazza, 278
App. Div. 1036 reversing Appeal Board, 26,077-50, and that a glassware shipping
clerk refused employment without good cause when he would not accept a shipping
clerks job in another industry with a jewelry concern, Matter of Hinds, 274
App. Div. 959 reversing Appeal Board, 16,842-47).
The majority decision
relies on Appeal Board, 9576-43 to support a conclusion herein that we may
consider the prevailing rate in the ship industry separate and distinct from
the prevailing rate in the building and construction industry. We respectfully
submit that this citation is not in point and does not apply to the facts in
this case.
In Appeal Board,
9576-43, the facts were markedly different. There, the claimant who lived in
The Bronx City of New York had 20 years experience as a building and construction
electrician. He never had performed any ship work. He was offered jobs in
shipyards in Kearney and Port Newark, New Jersey , at a rate of pay about
one-half the union rate in his industry. The Board found that the travel time
from his home to the prospective employers was at least two hours each way and
that the increased travel fare was more than 100 per cent greater than in his
previous job. The electricians in the building and construction industry
belonged to a union separate from the union to which ship electricians
belonged. The Board based its decision in justifying the claimant's refusal of
the offered jobs on many grounds. It found that there was good cause for
refusal because of excessive travel time and excessive travel expense. It also
concluded that the Industrial Commissioner's wartime policy of allowing at
least 30 days for construction workers to find employment in their own
occupation before being subjected to disqualification for refusing work in a
different occupation, had not been followed in that case when the shipyard
offers were made 13 days after claimant filed for benefits. The Board also
concluded that electrical work in building and construction was a distinct and
different trade from that of electrical work in shipyards; that each trade was
independent of the other; that although there were some similarities common to
both there were essential differences between the two occupations; that both
occupations had different classifications in the Dictionary of Occupational
Titles; that the modes and methods of operation and the locale of performance
in each occupation was different and that the wartime stabilization agreements
were made to apply to the ship industry and the building and construction
industry separately.
In Appeal Board,
9077-43, cited in the majority decision which also involved a situation where a
building and construction electrician was offered ship work, the Board arrived
at the same conclusion on the same ground, except the issues of excess travel
and excessive travel expenses were not involved.
Factually and legally,
Appeal Board 9576-43 and 9077-43 are not controlling here. Here, unlike the
claimants in the cited cases, this claimant had extensive experience in ship
work as well as in building and construction work. The job offer herein was not
in a different line of work but called for exactly the same skills which
claimant had used in all of his work as a pipe coverer whether it was in a
shipyard or in a building under construction. In this case, unlike the electricians
in the cited cases a pipe coverer is not employed in a different separate trade
when he works interchangeably in shipyards and in buildings. While the ship
industry may be different from the building and construction industry, the
skills of a pipe coverer are exercised in exactly the same fashion in both of
them. Unlike the occupational classifications in the cited cases pipe coverers
whether they work in shipyards or in building construction, are coded under the
identical listing of 5-33.110. Unlike the facts in the cited cases, the method
of operation for the performance of work in the building and construction field
are the same as those in the ship field. The factor of separate unions in the
respective fields is of no consequence in this case because claimant is not a
member of any union.
Although claimant is not
a union member, he is entitled to refuse employment where the wages offered are
less favorable than those prevailing for similar work in the locality. We said
so in Appeal Board, 20,872-49. That claimant did not belong to a union. She
refused employment in a non-union establishment at the prevailing rate of pay.
However, the referee erroneously based his decision in sustaining the initial
determination on the ground that the pay offered was the usual rate in
non-union establishments. While affirming the referee, we rejected the
reasoning and said:
…There
is no such test in the law. The test is whether or not the rate offered to the
claimant is prevailing for similar services in claimant's locality. ( Section
593.2 of the Labor Law) In Appeal Board, 11,354-44 we defined prevailing rate
as follows:
We
are of the opinion that, for the purpose of unemployment insurance,
"wages. ..prevailing for similar work in the locality are determined by
the rate being paid to employees of comparable skill actually engaged in
similar work. In other words, "wages prevailing for similar work in the
locality" are not the wages employers may be willing to pay to new
employees, but are the wages being paid to employees actually engaged in work
of a like nature in the locality. Webster defines "prevailing" as
"prevalent; most frequent; widespread; generally current; applies
especially to that which is predominant or which generally or commonly obtains."
Nor is there any basis in the Unemployment Insurance Law for
creating two prevailing rates; one for the unionized portion of the industry and the other for
the non-unionized. The prevailing rate must be determined on the basis of the
entire industry. Where the industry is substantially unionized, the union rate
becomes the prevailing rate. (Appeal Board; 6624-41). (Underscoring supplied)
There is no question in
this case that the overwhelming majority of pipe coverers work in the building
and construction industry wherein the prevailing wage during the period in
issue was $4.20 an hour. Within our definition of prevailing wages in Appeal
Board, 20,872-49 there can be no doubt that the prevailing wage for pipe
coverers was $4.20 an hour, and that an offer of $2.64 an hour made to claimant
was rejected by him with good cause as being substantially less favorable to
him.
The majority decision,
by dividing the occupation of pipe coverers into two separate industries
herein, effectually establishes two prevailing rates of pay. We
respectfully submit that not only is this in conflict with Appeal Board
precedents but disregards the specific language of Section 593.2(d), which
provides that a refusal to accept employment is deemed to be with good cause if
the wages are substantially less favorable to the claimant than those prevailing
for similar work in the locality. There can be no doubt that the work
of a pipe coverer in a shipyard is not only similar but identical with
the work with a pipe coverer in the building and construction field. Moreover,
it is patent that the statute speaks of a single prevailing rate and not
multiple ones.
Section 593.2(d) is in
conformity with the requirements of the Federal Unemployment Tax Act wherein it
is provided in Section 3304 thereof that the United States Secretary of labor
shall approve any state law submitted to him which he finds provides, among
other things, that compensation shall not be denied to any otherwise eligible
individual for refusing to accept any work if the wages of the work offered are
substantially less favorable to the individual than those prevailing
for similar work in the locality. Again the clear intent of this
Federal provision is to set up a single standard or prevailing wages involving
similar work and not to encompass multiple standards of prevailing wages for
identical work.
We regard the departure
from the well established concept of a single standard of prevailing wages to
be dangerous. It will tear down the bulwarks erected by the state and federal
statutes to protect claimants from job offers which tend to depress wages.
Although not
controlling, Section 220 of the Labor Law is enlightening here. By this
statute, the state has established a policy that persons employed in public
work shall be entitled among other benefits, to be paid not less than the
prevailing rate of wages as specifically defined and spelled out in the statute
(subdivision 3). In subdivision 5, the "prevailing rate of wage for the
intents arid purposes of that article (Article 8 - public work) shall be the
same rate of wage paid in the locality to the majority of workmen, laborers or
mechanics in the same trade or occupation. Certainly, under Section 220 of the
labor law, no one would argue that a mechanic working interchangeably in the
same trade or occupation in ship work of a municipality field would be paid a
different rate of pay than that paid to a mechanic in another city department.
We respectfully submit
that the citations of the Matter of Delgado; 278 App. Div. 237
reversing Appeal Board, 23,119-50 and Matter of Tucker; 8 App.
Div. 2d, 859 reversing Appeal Board, 60,507-57 are not applicable. There, the
Court ruled that a person reasonably fitted for more than one kind of
employment may not refuse one kind merely because he prefers the other. This
case does not involve two kinds of employment as was involved in the two cited
cases where each claimant had experience in two separate distinct occupations.
Here, the claimant is skilled in but one occupation as a pipe coverer and he is
reasonably fitted by his training and experience for any kind of pipe coverer's
job. The focal point here is that he is entitled to be offered a pipe coverer's
job at the prevailing rate of wage. Since the vast majority of pipe coverers
receive: $4.20 an hour, that is the prevailing wage upon which claimant can
insist and any offer of employment at a substantially less rate of pay is one
which the claimant can refuse with impunity and not suffer disqualification.
In our opinion, the
initial determination disqualifying claimant for refusal of employment without
good cause should be overruled and the referee's decision reversed. (October
16, 1959)
COMMENT
The
principle in this case (that different prevailing wages may exist for
apparently similar occupations in separate and distinct industries) should be
applied restrictively and only when it can be shown that the occupations are,
in fact, different.
Index
No. 1205F-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 13, 1959
INTERPRETATION
SERVICE- BENEFIT CLAIMS
Refusal of Employment
Disqualification
Appeal Board Case Nos. 67,153-58 and 68,640-59
REFUSAL - SUCCESIVE DISQUALIFICATIONS
A claimant who has been
disqualified for refusal of employment without good cause is not subject, to
additional disqualifications for refusing subsequent offers of the identical
job.
Referee's Decision: The referee sustained the initial
determinations of the local office (1) disqualifying claimant from receiving
benefits for 42 consecutive calendar days effective August 9, 1958 on the
ground that she voluntarily left her employment without good cause, (2)
disqualifying her from receiving benefits for 42 consecutive calendar days
effective September 24, 1958 on the ground that without good cause she refused
employment for which she is reasonably fitted by training and experience and
(3), disqualifying her from receiving benefits for 42 consecutive calendar days
effective October 6, on the ground that without good cause she refused
employment for which she is reasonably fitted by training and experience, and
the initial determination of the local office disqualifying claimant from
receiving benefits for 42 consecutive calendar days effective December 1, 1958
on the ground that without good cause she refused employment for which she was
reasonably fitted by training and experience.
Appealed by: Claimant
Findings of Fact: We have reviewed the evidence adduced at the
hearing before the referee and find that such evidence supports the following
findings of fact made by the referee:
Claimant a laundry
worker, filed a claim effective September 1, 1958. By initial determinations
respectively effective August 9, September 24 and October 6, she was, in each
instance, disqualified for 42 consecutive calendar days, the first initial
determination being by reason of voluntary leaving of employment without good
cause, and the others, because of refusal of employment without good cause.
Claimant is 44 years old. She was employed for approximately one year in a
union shop. She was a member of the union. She was paid on a piece work basis
with a minimum of 97-1/2 cents an hour.
Claimant was employed
until August 8. She informed the employer that she was remaining away from work
because of illness. She came for her pay on Monday , August 11, and was
instructed to report back for work when able to do so. Claimant thereafter, did
not report back to work. She was offered re-employment when she was physically
able to work with the same employer, by the insurance office on September 24
and October 6 when that office ascertained from the employer that it was
willing to re-employ claimant. Claimant, in each instance, refused to return to
work for the employer.
Claimant's explanation
for leaving her job and refusing to continue working for the employer was that
a co-worker approximately one month before August 8, had threatened her with
physical violence. Claimant made no complaint to the employer or to the union.
Had she made complaints, the employer would have called in the two workers in
order to adjust any misunderstanding between them.
The Board makes the
following additional findings of fact: Claimant was re-offered the same job
with her former employer on December 1, 1958 and January 28, 1959 respectively
and on each of the said occasions she refused the offer for the identical
reason which caused her to refuse the earlier offers. Additional initial
determinations were issued disqualifying claimant for 42 days beginning with
December 1 and for 42 days beginning with January 28, 1959 for refusal of
employment without good cause. Claimant protested the initial determination
effective December 1, 1958 and the said initial determination was sustained by
the referee in Case 538-550-58R (Appeal Board 68,640-59).The initial
determination with respect to the refusal of January 28 was rescinded as a
result of a policy promulgated by the Commissioner subsequent to the refusal of
December 1, 1958 because she erroneously believed that her pending appeal from
the decision in Case 538-452-58R (Appeal Board, 67,153-58) would review the
adverse decisions of both referees. The Board on its own motion, in accordance
with the provisions of Section 620.3 of the Unemployment Insurance Law, decided
to review the decision in Case 538-550-58R.
The Commissioner's
representatives have advised that, subsequent to the refusal of December 1, but
prior to the refusal of January 8, 1959 the employment office representatives
were instructed to avoid making successive referrals of specific jobs
previously refused by a claimant for the reason that it was concluded that to
do so would be contrary to sound employment and employment service practices.
It was pointed out, however, that notwithstanding such instructions in the
event such successive offers are actually made by the employer to a claimant,
the disqualification provided for in Section 593.2 of the Law must be imposed
separately each time that the offer is refused.
Appeal Board Opinion and
Decision: We agree with the
conclusions of the referee that claimant lack good cause for leaving her
employment and for refusing to accept re-employment. The reasons for such
conclusions as set forth in the decisions of the referees are valid and are
adopted by the Board. However we do not agree that the disqualification
provided for in Section 593.2 of the Law applies to any of the refusals which
occurred subsequent to the first refusal of the offer of re-employment on
September 24, 1958.
The penalty resulting
from a refusal of employment without good cause has been fixed and established
as a result of the amendment to the Law which became effective June 30, 1958
(Laws of 1958, Chapter 387). As a result of such amendment, the disqualification
is no longer a continuing one which can be terminated only by subsequent
employment, but is for a specific period of 42 days commencing with the day on
which the refusal occurred. It was made clear by the inclusion of subdivision 4
in the amended statute that the disqualification period is measured by the
calendar and is not affected by subsequent employment. It is obvious that by
such amendment the Legislature intended to provide for a standard penalty which
would be applied against an applicant for benefits who without good cause,
refused employment and that it was never contemplated that the penalty could be
made more severe or more extensive by the medium of re-offering the same
employment to the claimant repeatedly. If there were any other construction of
the statute in its amended form, the very purpose thereof would be rendered
nugatory, since a claimant could be disqualified permanently merely by the
device of re-offering one specific job to which the claimant has objection even
though such objection be without legal basis.
Prior to the amendment
of Section 593 of the Law, we held that separate disqualifications were
applicable in the instance of successive refusals of the same job offer.
However, the reason which formed the basis for our decision to that effect in
appeal Board, 43,382-54, has no application under the present section of the
Law. We pointed out in our decision that there was no prohibition on the
imposition of successive disqualifications because under the then existing
statute, each of the earlier disqualifications had necessarily become
terminated by intervening employment before the re-offer was made. It was a
facile thing under the prior statute for claimants to engage in work of short
duration and then immediately refile, thus overcoming the disqualification
which resulted from an earlier refusal of employment. This is no longer
possible and consequently, it is our present view that a re-offer of the same
employment followed by a similar refusal thereof is merely a repetition of the
single prior act involving the identical offer and refusal. In such
circumstance the logic we adopted with regard to the repetition of wilful
misrepresentations on separate occasions is applicable. In such instances, we
held that there was but a single offense which warranted the imposition of only
a single penalty rather than successive penalties. Our holding to that effect
in Appeal Board, 9691-43 was affirmed in the Matter of Roberts, 276
App. Div. 845.
Our conclusion is not in
conflict with Matter of Crowe, 305 N.Y. 699 reversing Appeal Board
28,204-51 wherein it was held that the statute authorized a separate
disqualification for the refusal of the identical job which the claimant had
voluntarily left without good cause and for which a disqualification had been
imposed. In accord with the principle enunciated in the Matter of
Crowe, supra, we have here concluded that the disqualification imposed
for claimant's first refusal of the re-offer of employment on September 24,
1958 is proper since her refusal was an act separate and distinct from her
leaving of the employment in the first instance. However, the principle which
requires the application of the disqualifications under Sections 593.1 and
593.2 are not applicable where the successive disqualifications are issued
under the provisions of Section 593.2 based on successive refusals of the
identical job. In the latter event there would clearly be a double or triple or
even greater penalty for the same act. The acts of refusal are not separable in
the statutory scheme.
It is significant that
the Commissioner has recognized that it is contrary to sound employment
practices to refer a claimant repeatedly to the same employment in the instance
where one refusal of such offer has occurred. It would be a harsh rule that
would require the imposition of successive penalties based on acts which are
acknowledged to be contrary to sound employment practices.
We, therefore, conclude
that claimant voluntarily left her employment without good cause and that she
refused employment without good cause and that as a result thereof, she should
be disqualified for 42 days effective August 9, 1958 the day after she left her
job and effective September 24, 1958 the day on which she first refused the
offer of employment, but that she is not subject to any further or additional
disqualifications.
The initial
determinations of the local office disqualifying the claimant from receiving
benefits for 42 consecutive calendar days effective August 9, 1958 on the
ground that she voluntarily left her employment without good cause and
disqualifying her from receiving benefits for 42 consecutive calendar days
effective September 24, 1958 on the ground that without good cause she refused
employment for which she is reasonably fitted by training and experience is
sustained.
The initial
determinations disqualifying claimant from receiving benefits for 42
consecutive calendar days effective October 6, 1958 and the initial
determination disqualifying her from receiving benefits for 42 consecutive
calendar days effective December 1, 1958 on the ground that without good cause
she refused employment for which she is reasonably fitted by training and
experience are overruled. The decisions of the referees are modified
accordingly and, as so modified are affirmed. (October 29, 1959)
COMMENTS
This decision is of
importance because it departs from prior practices leading to multiple
disqualifications for repeated refusals of the same job where claimant had
already been disqualified because of the first refusal.
The Appeal Board makes
it clear that the decision is distinguishable from the principle established
in Matter of Crowe (A750-1101). That case dealt with a refusal
which followed a quit. This differentiation implies that there may still be a
disqualification for the refusal of a job which claimant had quit
notwithstanding a disqualification already imposed because of a quit.
Index
1205 E-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 17, 1959
INTERPRETATION
SERVICE- BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Prior to Registration
Appeal Board Case Number 70,207-59
EFFECTIVE DATE OF CLAIM FILED AFTER REFUSAL OF EMPLOYMENT
An original or
additional claim filed in a week after the day of refusal without good cause in
the same week cannot be predated to a date earlier than the first day of
unemployment following the refusal.
Referee's Decision: The referee overruled the initial
determination or the local office disqualifying the claimant from receiving
benefits for 42 consecutive calendar days effective May 5, 1959 on the ground
that without good cause she refused employment for which she is reasonably
fitted by training and experience.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a secretary, was referred to
employment by the employment service on Monday 4, 1959. She accepted the
referral and commenced work on Tuesday morning, May 5. After working for about
two hours she was discharged by the employer because it deemed claimant's
qualifications insufficient for its purposes. After being discharged at about
11 a.m. she telephoned the employment service and was given a referral to
employment as a secretary with an employer located on 58th street
in Manhattan. Claimant had no objection to any of the terms and conditions of
this offered employment except its location. She is a resident of Brooklyn and
preferred employment in the lower downtown area.
Claimant appeared at the
local office on Thursday, May 7, 1959, which is her regular reporting day and
refiled for benefits. Pursuant to Industrial Commissioner's regulation 40a,
claimant's claim was made effective as of the first day of the statutory week;
namely, Monday, May 4, 1959. On May 21, the local office issued an initial
determination disqualifying claimant from receiving benefits effective May 5,
1959 on the ground that without good cause she refused employment for which she
is reasonably fitted by training and experience and further ruled that claimant
was overpaid $15.50 in benefits. Claimant protested and requested a hearing.
The referee overruled the initial determination as to a refusal of employment
on the sole ground that the case was governed by the ruling of the Court
in Matter of Foscarinis, 284 App. Div. 476 affirming Appeal Board,
35,617-53. The Industrial Commissioner appealed from the decision of the
referee solely on the ground that the referee's decision should be modified so
as to disallow benefits to claimant for the days of May 4 and 5, 1959.
Appeal Board Opinion and
Decision: It is unnecessary on
the facts of this case to decide whether the tryout period during the morning
of May 5, when claimant worked for two hours without remuneration constituted
such employment as would render claimant ineligible to receive benefits on that
day due to lack of total unemployment. The controlling fact is that claimant
did refuse employment without good cause later on May 5. The lack of good cause
for such refusal was virtually conceded by claimant at the referee and Board
hearings.
The problem presented
here arises out of the application of Industrial Commissioner's Regulation 40a
which reads as follows:
Filing of benefit claim. a. A claimant shall file an original claim and register for
employment on any day from Monday. through Friday. Any such claim filed in
accordance with this section shall be deemed filed as of the first day of
claimant's unemployment in the statutory week in which filed, excluding,
however, any prior days on which a disqualifying condition would have existed
if he had actual]y filed on such day.
Under this regulation,
claimant's filing of Thursday, May 7, 1959 was automatically made effective as
of the commencement of the statutory week on, Monday, May 4, which was in fact
a day of unemployment for claimant. At the time claimant refiled her claim on
May 7, the local office had not yet processed the initial determination
disqualifying her from receiving benefits for refusal of employment on Tuesday,
May 5, 1959.
The referee was
technically correct in applying the principle enunciated in Matter of
Foscarinis wherein it was held that a refusal of employment without
good cause which precedes the filing or refiling of a claim for benefits does
not result in disqualification for benefits because the language of Section
593.2 is in the present tense and is intended to refer to refusals of
employment made after the filing for benefits. The Court ruled
that the disqualification cannot antedate the date of filing.
The Industrial
Commissioner argues that the effect of the referee's decision is to negate the
intent and effect of the Matter of Foscarinis decision. It is
pointed out that if the claim is made effective on Monday, May 4, 1959 in
pursuance of Regulation 40a, this would antedate the refusal the refusal of
employment on Tuesday, May 5, and would subject claimant to a 42 day
disqualification.
The regulation of the
Industrial Commissioner providing for the establishment of a claim on an
earlier day in the week than that on which the filing actually occurs is not
intended to, nor should it be so construed, as to negate or nullify the
principle of the Foscarinis case. In view of the fact that a
disqualifying condition had occurred on a day prior to the day on which
claimant actually became an applicant for benefits, it would
be contrary to the purpose an intent of the Law and regulations to predate the
filing and cause claimant to become, in effect, an involuntary applicant for
benefits for days which include the day on which the refusal of employment
occurred. The Commissioner's representatives so concede and urge that a
reasonable interpretation of the provisions of Regulation 40a, under the
circumstances of this case, requires that the filing be made effective
Wednesday, May 6, the first day of the week following that on which the refusal
occurred. Claimant, therefore, is entitled to credit for two effective days
during the statutory week ending May 10, she was not overpaid.
The initial
determination of the local office to the effect that claimant refiled her claim
effective May 4, 1959 and was disqualified from receiving benefits for 42
consecutive calendar days effective May 5 and that she was overpaid $15.50 in
benefits is modified to the extent that it is held that claimant refiled her
claim for benefits effective May 6 and was, therefore, ineligible to receive
credit for May 4 and May 5 and except as so modified, the initial determination
is overruled. The decision of the referee is unanimously affirmed, but only on
the grounds herein above set forth. (October 30, 1959)
Index
No. 795.4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
December
9, 1959
INTERPRETATION
SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY Restriction – Work
Appeal Board Case Number 66,229-58
AVAILABILITY
OF TUGBOAT CREWMEN – PATTERN OF EMPLOYMENT
Tug boat workers who
participate in an arrangement designed to enable them to accumulate their
normal 120 hours of work for a 3 week period in a period of 2 weeks, so that no
work was performed in the 3rd week, are ineligible for benefits
during the 3rd week because of a temporary withdrawal from the
labor market.
Referee’s Decision: The referee overruled the employer’s
objections to the payment of benefits to claimant and sustained the initial
determination of the local office holding claimant eligible to receive benefits
effective June 16 through June 22, 1958 without disqualifying conditions, and
ruled that the employer is not entitled to the return of its statutory deposit
made in connection with its request for a hearing before the referee.
Appealed By: Employer
Findings of Fact: Claimant, a deckhand, works aboard a tugboat
owned by the employer. The employer is a member of an association which is in
contractual relations with a union of which claimant is a member. The contract
provides for an eight-hour workday.
Tugboats are usually in
operation on a 24-hour basis. Consequently, each tugboat is manned by three
separate crews, each of which is required to be on duty during eight hours of
each workday. Because of the nature of their work, tugboat workers are usually
away from home throughout the workweek. To enable them to return to their
respective homes at intervals, the tugboat workers, by agreement among
themselves and with the acquiescence of the tugboat operators, have developed
the practice which prevails in the industry whereby each of the workers is on
duty 12 hours on each work day for two successive weeks and is relieved from
duty during the following week. Thus, in each three-week cycle the worker is on
duty an aggregate of 120 working hours on ten workdays. This practice prevails
notwithstanding the contractual provision fixing an eight-hour workday and
without regard to the activity of the employer’s business. No overtime or
premium compensation is paid for the hours of work in excess of eight hours on
any day in those instances where the additional hours of duty are undertaken by
the worker in pursuance of the practice mentioned, but, in accordance with the
terms of the collective bargaining agreement, workers are compensated at premium
rates for work in excess of eight hours on any day when such work is demanded
by the employer because of illness or absence of a crew member, shortage of
staff or other emergency. Some employers whose employees work in accordance
with this practice pay their employees remuneration for 40 hours of work in
each week, including the week in which the employee is relieved from duty. In
other instances, the employees receive straight hourly wages for the total work
time of 60 hours in each of the weeks during which they are on duty and receive
no wages during the weeks in which they are relieved from duty. In the instant
case, the claimant was paid according to the latter method and hence, he
received no wage payment for the week in issue.
Under the terms of the
collective bargaining agreement, the employer is required to make certain
weekly payments for each of its employees into specific funds to provide death
benefits, non-occupational accident and sickness benefits, hospital and
surgical expense reimbursements and benefits of a pension plan. The employer is
obliged to make such weekly payments only for each employee in its employ
during the week for which the payment is made. Such payments are actually made
by the employer for those of its employees who are relieved from duty in
accordance with the practice herein above mentioned, in the weeks in which such
employees are off duty and perform no services. Additionally, in determining
the vacation credits accrued by employees, the weeks in which they are off duty
are computed as periods of employment.
Crew members who work in
pursuance of the above arrangement are responsible for the proper manning of
the vessel to the extent, at least, of holding themselves in readiness to
resume work immediately during the off duty week in the event that their
opposite number, i.e., the crew member due to perform the work of the absent
member, is unable or unwilling to work in that week. In that event, if the
absent employee is summoned to return to work and fails to make an immediate
return, he is subject to discharge. In the event, however, that an employee is
on a lay off status due to lack of work, he is allowed one week after receiving
notice of recall to report for the resumption of work. If an employee is
recalled to work during his off week because of the absence of his opposite
number, he is paid wages at straight time but the opposite number forfeits
those wages. If, during an employee’s off week, a vacancy occurs on a vessel
other than that to which the employee is regularly assigned, the employer may
provide the employee with the opportunity to work as a replacement so that he
can earn the additional wages, but the employee is under no obligation to
accept that assignment. He may not, during the off week, enter the employment
of any other tugboat operator who is a party to the collective bargaining
agreement, but he is free to accept temporary work otherwise, so long as he
holds himself in readiness to respond to immediate recall should the need
therefor arise.
The foregoing pattern of
employment is permitted by the employer only if there is unanimous consent
among the crew members. Such arrangement was in effect on the vessel to which
claimant was assigned with the result that he was off duty from June 16 through
June 22, 1958. He performed no services whatever in that week. He was not
recalled by the employer nor was he offered assignment by it to any other
vessel. The claimant was at his home during that week and although he made no
search for work, he alleged he was ready, willing and able to accept any other
assignment aboard any of his employer’s vessels if it were offered to him.
Claimant refiled a claim
for benefits effective June 16, 1958. Based on an interview with claimant and
on a report from the employer, the local office issued an initial determination
holding claimant eligible to receive benefits for the week ending June 22,
without disqualifying conditions. The employer objected to the payment of
benefits to claimant, made the statutory deposit and requested a hearing. The
referee overruled the objections, sustained the initial determination of the
local office holding claimant eligible to receive benefits and ruled that the
employer was not entitled to the return of its statutory deposit. The employer
upon making a further statutory deposit appealed to the Board from the
referee’s decision.
Appeal Board Opinion and
Decision: In overruling the
objections of the employer and sustaining the initial determination holding the
claimant eligible for benefits without disqualifying conditions, the referee
followed our decision in Appeal Board, 61,641-57 and ruled that the facts were
distinguishable from Appeal Board, 51,115-55 (affirming Referee Case
531-68-55R) for the reason that unlike the referee’s finding in the instant
case, the claimant in the last cited case "could not accept employment
during the week off on any other vessel subject to the union contract."
We have found in the
instant case that the identical restraint which was placed upon the claimant
involved in Appeal Board, 51,115-55 applied to the claimant herein, so that the
basis for the distinction is absent. However, we have previously considered the
status of tugboat workers during the off week and except for our decision in
Appeal Board, 51,115-55, we have consistently held that the claimants were
eligible for benefits. (See Appeal Board, 38,516-53, 43,058-54 and 61,641-57).
The evidence before us in the earlier cases was not as clear as has now been
presented to indicate the true nature of the arrangement which results in the
pattern of off weeks for tugboat workers. We believe that in view of our
present understanding of the situation gleaned from the evidence adduced
herein, a review of our disposition of these matters is in order.
Significantly, the Commissioner’s view is that the circumstances of claimant’s
unemployment during the off weeks indicate claimant’s ineligibility for such
periods, but, nevertheless, a contrary initial determination was issued only
because the Commissioner deemed himself bound by our decision in Appeal Board,
61,641-57.
We are now convinced
that the tugboat worker who participates in an arrangement whereby, for his own
convenience, he is enabled to accumulate his normal 120 hours of work for a
three-week period in a period of two weeks and thus be relieved of the
necessity for performing work in the third weeks, is not eligible for benefits
within the purview of the provisions of the Unemployment Insurance Law for the
reason that he has temporarily withdrawn from the labor market.
The collective
bargaining agreement between claimant’s union and his employer contemplates
that in each three-week period claimant’s full employment would consist of work
for 120 hours and that his wages would consist of 120 times his basic hourly rate.
Since claimant was provided with work for 120 hours and was paid 120 times his
basic hourly rate during the three-week period which included his off week, it
would not be within the spirit of the Unemployment Insurance Law to award to
him unemployment insurance benefits to supplement his earnings in the week
during which he was idle, only because his arrangements with his fellow workers
enabled him to accumulate his hours of work and remuneration in a shorter time
so that he could enjoy a respite from work during each third week. In so
stating, we emphasize that this conclusion is dictated by the arrangement which
is peculiar to this occupation.
Claimant’s unemployment
during the period here in issue stemmed solely from his participation in the
arrangement designed to enable him to voluntarily temporarily withdraw from the
labor market for that week. Under such circumstances, claimant is ineligible
for benefits.
The worker’s readiness
to respond to recall by his employer and to resume work in that week in the
event of such recall does not alter the result. The restrains placed upon him
by virtue of the arrangement effectively foreclose him from opportunities for
temporary reemployment elsewhere. The pattern of returning home during the off
weeks indicates that the true purpose of the arrangement is to provide those
who participate in the arrangement with a respite from work for their personal
convenience.
It is unnecessary to
consider whether claimant was in fact totally unemployed since his
unavailability produced by his voluntary temporary withdrawal from the labor
market rendered him ineligible.
The initial
determination of the local office holding claimant eligible to receive benefits
effective June 16 through June 22, 1958 without disqualifying conditions is
overruled. The employer’s objection to the payment of benefits to claimant is
sustained. The employer is entitled to a return of its statutory deposits. The
decision of the referee is unanimously reversed. (November 23, 1959).
COMMENTS
- This decision, in effect, overrules A.B. 61,641-57
reported in the Interpretation Service under A-750-1480; which must now be
considered obsolete. The Board points out that their decision in the
earlier case was based upon evidence which was not sufficiently clear to indicate
the true nature of the off-week pattern for tug boat work.
- Somewhat similar facts were involved in A.B. 51,115-55.
The claimant in that case was held entitled to credit for the third week
as a "week of employment" under the authority of Industrial
Commissioner’s Regulation 2(g), as a week of paid leave of absence. That
principle should be applied in determining weeks of employment in the base
period.
Index
No. 1540-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April
28, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
RECOVERY OF OVERPAYMENT
Appeal Board Case Number 73,553-60
OVERPAYMENT – CERTIFICATION AS TO JOB OFFERS
Failure by a claimant to
mention a job offer orally when certifying that "he has notified this
office of all job offers" is not a false statement or concealment when an
entry in the identification booklet which the claimant presented reflects the
referral to the job and an overpayment is non-recoverable under such
circumstances if there are no other facts showing a lack of good faith in
accepting benefits.
APPEAL BOARD DECISION
An initial determination
was issued by the local office on July 7, 1959 disqualifying the claimant for
42 consecutive calendar days for refusal of employment without good cause and
charging claimant with having wilfully made a false statement to obtain benefits
thereby reducing her right to future benefits by 24 effective days to be
forfeited and further charging claimant with an overpayment of benefits in the
sum of $66 which was held to be recoverable. The claimant objected thereto and
requested a hearing. A hearing was thereafter held before the referee on
September 17, 1959. The referee rendered a decision dated September 28, 1959
sustaining those portions of the initial determination which charged claimant
with having wilfully made a false statement to obtain benefits and which ruled
that the overpayment was recoverable. The Industrial Commissioner thereupon
appealed to the Board from the decision of the referee insofar as it overruled
the initial determination of the local office that the overpayment of $66 in
benefits was recoverable, and a decision was rendered in Appeal Board,
71,085-59 dated December 8, 1959 reversing the decision of the referee.
Pursuant to the
provisions of Section 534 of the Law, the Board thereafter, on its own motion,
decided to reopen and reconsider its said decision in appeal Board, 71,085-59.
The Industrial Commissioner, by written consent, waived a hearing before the
Board in accordance with Rule 18 of the Rules and Regulations Governing
Practice and Procedure Before Referees and Appeal Board.
Based upon the entire
record and testimony in this case, the Board makes the following:
FINDINGS OF FACT: On June 15, 1959, the employment office
referred claimant to employment in her usual occupation at prevailing wages and
conditions. Claimant accepted the referral, reported to the employer on June
16, 1959 but refused the employment because she was not satisfied with the
condition of the premises and for other personal reasons which do not
constitute good cause under the Law. The employment interviewer who referred
claimant to the employment made an entry in claimant’s identification booklet,
in the appropriate space provided therefor, indicating that the referral had
after, on claimant’s regularly assigned reporting date in the two succeeding
weeks, claimant reported to the insurance office and certified for benefits for
the week in which the referral had occurred and for the following week. When
she so certified in each instance, claimant presented to the claims clerk, as
part of her certification for benefits, her identification booklet, containing
the entry with regard to the referral as aforesaid. The established procedure
requires a claims clerk to examine the placement section of claimant’s
identification booklets to become aware of all entries therein. Notwithstanding
the entry with respect to the referral of June 16, claimant was not
specifically interrogated until July 7 about the outcome of the referral and
the initial determination disqualifying her for the refusal of employment was
not issued until that day. In the meantime, based on claimant’s certifications
on June 23 and June 30, benefits aggregating $66 were paid to her for the weeks
ending June 21 and June 28. Accordingly, such payments constituted an
overpayment on the basis of the retroactive initial determination issued on
July 7.
When claimant certified
on June 23 and June 30, she signed the usual certification forms which, among
other things, contained printed thereon the statement "I notified this
office of all job offers I received." Claimant had not orally made any
mention of the referral above set forth.
OPINION: In our previous decision we ruled that the
overpayment was recoverable on the theory that since claimant had made no oral
mention of the referral of June 16, her signature on the printed form
indicating that she had notified the office of all job offers, constituted a
false statement which precluded a waiver of the recovery of the overpayment.
Upon consideration we arrive at a conclusion contrary to that previously made.
Our review satisfies us
that the entry with regard to the referral which appeared in claimant’s
identification booklet when she presented it to the claims clerk at the times
of her certifications, was in fact a notification of the job offer made by the
employment office on the date so indicated. Inasmuch as such entry constituted
an integral part of claimant’s certifications, the entry was notification to
the insurance office of such job offer. Viewed in this light, it is apparent
that since claimant did, in effect, give notification of the job offer of June
16 by the presentation of the booklet, she did in truth notify the local office
of the job offer which she had received. Consequently, the certification
contained on the printed form was not false.
There is nothing in the
record purporting to indicate that when claimant certified between the date of
the referral and her certifications on June 23 and June 30 respectively, she
knew that a disqualification would result from her refusal of the employment or
that as a result thereof she would be disqualified from receiving benefits for
the weeks ending June 21 and June 28. It follows that there has been no showing
that claimant lacked good faith in the acceptance of such payments. Similarly,
since as we have found, she affirmatively indicated by the presentation of her
booklet that the offer of employment had been made on June 16, it is apparent
that there was no wilful concealment of that fact. Under these circumstances,
the issuance of the initial determination retroactively does not affect
claimant’s rights to the benefits theretofore paid to her. (Section 597.4 of
the Law)
DECISION: The Board’s decision dated December 8, 1959
(Appeal Board, 71,085-59) is reopened and reconsidered and upon such reopening
and reconsideration, the same hereby is rescinded.
The initial
determination of the local office ruling the overpayment of $66 in benefits is
recoverable is overruled.
The decision of the
referee insofar as appealed from is unanimously affirmed. (March 31, 1960)
Index
No. 1520-10
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
December
22, 1959
INTERPRETATION
SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous Employments
Appeal Board Case Number 67,996-59
TOTAL UNEMPLOYMENT – NOT CONTINUOUS SELF-EMPLOYMENT
Claimant, a full-time
factory worker, who during hours when not so employed performs occasional work
as a beautician at home by appointments, is self-employed but only on those
specific days when actually engaged in such work.
Referee’s Decision: The referee modified the initial determination
of the local office holding claimant, a factory laborer, ineligible to receive
benefits effective December 8, 1958 on the ground that she was not totally
unemployed by holding that claimant was ineligible for benefits only on three
days in each of the weeks ending December 14, 21 and 28, 1958, and on four days
in the week ending January 4, 1959.
Appealed By: Industrial Commissioner
Findings of Fact: After a review of the record including
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 record 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 the Board, except that the Board makes the additional
finding of fact that claimant’s activities in connection with her beauty parlor
were confined to work by appointments only.
Claimant, a factory
laborer, filed effective December 8, 1958. By initial determination effective
the same date, she was ruled ineligible because of lack of total unemployment.
Claimant 58 years of
age, self-supporting, was employed from 1957 through November 18, 1958, by a
manufacturer of coffee at Newport. She worked an 8 a.m. to 4 p.m. shift, five
days a week, up to the winter of 1957, and thereafter worked on the night
shift, 4 p.m. to 12 midnight. Previous thereto, she had been employed for many
years in a shoe factory at Newport and with a manufacturer of underwear at
Herkimer. For many years, claimant, while so employed, operated a beauty shop
in her home and performed the work during hours she was not working and on
Saturdays. Her husband was the original owner of the establishment and a
certificate of Madame Du Barry Beauty Shop was filed by him previous to 1938,
when claimant was separated from her husband.
Following her layoff on
November 18, claimant, at her first interview at the insurance office, notified
it that she was doing her beauty work in her home and, when she certified for
benefits for the weeks ending December 14, 21 and 28, she placed a check in the
box on three days in each of the weeks and reported that she had earnings on
three days in the respective weeks of $13.50, $10.50 and $15.25. During the
week ending January 4, 1959, she worked four days and had receipts of $40.
Claimant had at all times been ready, willing and able to accept employment and
has actively sought employment.
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, except as supplemented herein. The facts in
this case do not differ substantially from those in Appeal Board, 67,201-58 in
which we reached a similar result. In that case we said:
We
cannot accept the referee’s conclusion that claimant’s activities in connection
with his repair shop constituted self-employment and barred him indefinitely
from receiving benefits, within the principle of Matter of Emery,
281 App. Div. 425, affirming Appeal Board, 30,879-52. Claimant did not operate
a steady business venture requiring the daily rendition of services. Unlike the
retail liquor store operated by the claimant in Matter of Emery supra.
Or the bar and grill operated by the claimant in Matter of Schreiber,
5 App. Div. 2nd 745, reversing Appeal Board, 55,345-56,
claimant only did repair work when and if such jobs were brought to him. He was
idle between such orders. He openly revealed to the local office that he had
performed such repair work on specific dates and marked his booklet accordingly.
We conclude that claimant was self-employed and ineligible for benefits only on
those specific days on which he performed such work as set forth herein in the
findings of fact.
The decision of the
referee is affirmed. (April 10,1959)
COMMENTS
This decision points out
"self-employment" may be limited to specific periods and that
activities in self-employment, not of a continuous nature, may not
completely bar a claimant from receiving benefits. Thus, claimants, in
accordance with the facts in a given case, may be "not totally
unemployed" only on those days when actually engaged in self-employment.
Index
No. 910-7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February
17, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Eligibility, Question of
Appeal Board Case Number 69,783-59, et al
ENTITLEMENT – ILLEGAL EMPLOYMENT
Employment in an illegal
enterprise will not establish rights to unemployment insurance benefits if the
specific services which the claimant renders are in violation of the law.
Referee’s Decision: The referee sustained the initial
determinations of the local office holding claimants ineligible to receive
benefits effective various dates in March 1958 and March 1959 on the ground
that they did not file valid original claims for benefits in that they did not
have at least 20 weeks of covered employment in their respective base period.
Appealed By: Claimants
Findings of Fact: Claimant M.A.P. and N.H.G. filed claims for
benefits effective March 10 and March 17, 1958 respectively. Claimants A.J.A.
and M.K.M. filed claims for benefits effective March 2, 1959. Claimant N.E.D.
filed a claim for benefits effective March 16, 1959. All of the claimants were
employed during their respective base periods by the employer who operated an
establishment in which he conducted bingo games exclusively. Claimants worked
at the bingo hall primarily as cashiers, callers, checkers and manager. Each of
them did some incidental work such as cleaning and preparing and serving
refreshments.
The bingo games operated
by the employer consisted of placing markers on cards as numbers were drawn and
called. Winners received cash prizes varying in amounts between $5 and $750 or
articles of merchandise. Chairs were rented to those who participated in the
game. The amount of games in which a patron was entitled to participate varied
in accordance with the amount of rental paid for the chair. It was not
compulsory for a person to rent a chair in order to play.
The services performed
by each of the claimants constituted an integral part of the operation of the
bingo games. The employment of each of the claimants occurred prior to the
recent constitutional amendment authorizing the operation of bingo games under
specified conditions and prior to the effective date of the State Lottery
Control Law. (Constitution Article I, Section 9; Executive Law, Section 430.)
In February 1956, the
employer filed a report to determine liability under the Unemployment Insurance
Law. The employer indicated thereon that it had employed three or more persons
in 1956 commencing with January 27. He gave no indication on the report that
his business consisted of the operation of bingo games but set forth that his
principal activity was "amusement Center." On the basis of such
report, the Commissioner’s representatives ruled that the employer had become
subject to the provisions of the Law effective January 27, 1956 and an employer
registration number was assigned to him. In due course thereafter, the employer
filed wage reports and paid contributions. Such contributions were accepted by
the Commissioner’s representatives. The employer had not indicated on any of
his contribution reports that the wages paid by him on which the contributions
were based represented wages paid to persons who were actively participating in
the operation of bingo games.
Appeal Board Opinion and
Decision: Section 137 of the
Penal Law prohibited the operation of a lottery within the State of New York
during the period here at issue. In People vs. Kiefer, 173 Misc.
300, an indictment against one who was accused of a violation of the lottery
statutes because he had acted as an officer, master of ceremonies and treasurer
for a bingo game operated under substantially similar conditions to those here
involved, was sustained on the theory that, irrespective of the name assigned
to the game and notwithstanding that it may have been conducted for the benefit
of a non-profit charitable organization, it, nevertheless, constituted a
"lottery" and was, therefore, an illegal pursuit. To the same effect,
since People vs. Williams, 202 Misc. 420, and People vs.
Cadle, 7 App. Div. 2d 65. In People vs. Cadle, supra,
it was held that a violation of the lottery statute occurred even though it was
possible for persons to participate in the game without payment of any
consideration. Similarly, in Italian Community Home Federation, Inc.
vs. Kelly, 12 Misc. 2d 33, it was held that bingo games could not be
legally conducted even though such games were "free" following an
entertainment program for which an admission fee was charged.
It is thus amply clear
that the employment with which the claimants herein seek to be credited was
illegal. The nature of the services rendered by each of the claimants was such
that each of them was an active participant in the actual operation of the
illegal lottery. Under these circumstances, there is no merit to the argument
advanced by claimants that the illegality of their employment should be
overlooked because the local enforcement authorities had not disturbed the
operation of the bingo game. Significantly, each of the claimants became
unemployed because in their community "commercial bingo halls" were
closed at the time when charitable organizations were licensed to operate such
games in pursuance of the provisions of the State Lottery Control Law.
Having concluded that
the employment with which claimants seek to be credited was, by its very
nature, illegal, it necessarily follows that the claimants may not be credited
therewith for the purpose of establishing eligibility for unemployment
insurance benefits. Under another social statute, namely, the Workmen’s
Compensation Law, the Courts have held that one who is injured in the course of
illegal employment may not receive the protection afforded to those who are
employed in legal activities. Thus, in Herbold vs. Neff, 200 App.
Div. 244 workmen’s compensation benefits were denied to a bartender who was
injured while employed in a saloon during prohibition. The court said:
"It
is a fact familiar to all that at the time of accident the sale of liquor was
unlawful. The deceased and his employer were, therefore, engaged in an unlawful
occupation. This court cannot lend its aid to the enforcement of any claim
growing out of a contract of employment one of the purposes of which is the
violation of the Law of the land making the sale of intoxicating liquors a criminal
offense."
To the same effect,
see Swihura vs. Horowitz, 242 N.Y. 523, affirming 215 App. Div.
740.
The recent decision
in Matter of Albertson, 8 App. Div. 2d 918, reversing Appeal Board,
60,971-57 is not in conflict with the views hereinabove set forth. Although
unemployment insurance benefits were allowed to the claimant in the cited case,
the Court pointed out that there was no evidence in the record establishing
that all of the employer’s activities were outlawed or that claimant had
engaged in any personal criminal activity. The Court specifically stated:
* * *
nor do we hold that if a particular hiring is itself shown to be criminal in
the actual employment, that the employee is then entitled to benefits for the
period of such employment.
The Court further
stated:
If it
were demonstrated that a specific employment were criminal as distinguished
from a status attaching to the employer itself, a different result might become
permissible as to the claim for benefits arising from such an employment, * * *
In the instant case, the
record amply establishes that the specific services rendered by each of the
claimants were criminal, in that such services were in clear violation of the
provisions of the Penal Law. Consequently, we hold that the claimants may not
be credited with such employment or the remuneration resulting therefrom.
We deem it not
significant that the employer paid contributions. Such contributions were
accepted by the Commissioner’s representatives in reliance upon the employer’s
representation that he was engaged in a legal venture. There is no evidence
purporting to indicate that the contributions were accepted with knowledge that
the remuneration upon which such contributions were based resulted from illegal
employment.
The initial determinations
of the local office are sustained. The decision of the referee is unanimously
affirmed. (February 3, 1960)
COMMENTS
The principle applied in
the here reported case is identical with that stated in Special Bulletin
A-710-18.
Index
No. 1285-8
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March
3, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Union Relations
Appeal Board Case Number 69,980-59
REFUSAL – LOSS OF RETIREMENT RIGHTS
If a claimant who has
reached the retirement age would be eligible for a pension under a union
retirement plan in a few months by having completed two years of continuous employment
exclusively within the jurisdiction of the local union or its affiliates, the
claimant has god cause for the refusal of employment which would have broken
this condition and required another two years of employment in compliance with
the condition in order to reinstate retirement eligibility.
(Use restrictively — see Comments)
Referee’s Decision: The referee sustained the initial
determination of the local office disqualifying claimant, a sewing-machine
operator, from receiving benefits for 42 consecutive calendar days effective
April 17, 1959 on the ground that, without good cause, she refused employment
for which she is reasonably fitted by training and experience and charging her
with an overpayment of $33 in benefits which was deemed not recoverable.
Appealed By: Claimant
Findings of Fact: We have reviewed the evidence adduced at the
hearing before the referee and find that such evidence supports the following
findings of fact by the referee:
* * *
Claimant,
a sewing-machine operator, filed a claim effective April 6, 1959. By initial
determination effective April 17, she was disqualified for 42 consecutive
calendar days for refusal of employment without good cause. She was charged
with an overpayment of $33 which was ruled not to be recoverable.
Claimant
has had 20 years experience as a lining maker. She was employed for
approximately one year to February 7. She worked in a shop associated with
Local 20 of her union. Claimant is a member of Local 117. On April 17 the
employment office offered claimant a job as a lining maker, five days, 35 hours
weekly, to work on a piecework basis in a shop affiliated with Local 98 of her
union. She was instructed to go to the employer on April 20. She accepted the
referral. She went to the employer. She stated she would return and failed to
return back for work.
Claimant
is 63 years old. She became re-employed on May 25 as a lining sewer in a shop
affiliated with Local 20.
Claimant
takes the position that after she was interviewed by the prospective employer,
she called the office of Local 20 to ascertain the effect of accepting
employment with an employer affiliated with another local and that she was told
that if she did so, it would make it necessary for her, after such employment
terminated, to continue working for two additional years in a Local 20 shop in
order to be able to apply for a union retirement pension.
An
official of Local 20 appeared at the hearing. He submitted that Local 98 as yet
did not have a retirement fund so that reciprocity of employment with that
local could not be granted. It was his opinion that if claimant applied for a
pension and the pension committee ascertained that claimant had worked in a
Local 98 shop in the two-year period prior to the application, her application
for retirement might not be granted.
We make the following additional
findings of fact: Claimant’s retirement rights are governed by "The Rules
and Regulations of Local 20 – Local 10 ILGWU (International Ladies Garment
Workers Union) Retirement Benefits Fund." Under Article IV, Section 1B
thereof, claimant would be entitled to reciprocity retirement, if employed in
her industry for at least two years prior to retirement and for 18 years in
other industries covered by the ILGWU which have retirement funds and
reciprocity provisions. Under Article IV Section 1A of said rules, it is
provided that females between the ages of 62 and 65 who meet the employment
requirements may retire and receive reduced benefits. The only interruption of
employment which would not deprive claimant of credit as periods of employment
are interruptions due to disability, lack of work or military service. Claimant
elected to file her application for retirement in September 1959, at which time
she would have had two years continuous employment. She could not obtain
retirement through Local 98 had she accepted the job offer, because Local 98
has no retirement plan. Had claimant accepted the job offer, her two years’
continuous employment prior to her retirement would have been broken and
claimant would be required to work for two more continuous years in a shop
governed by Local 20.
Appeal Board Opinion and
Decision: In his opinion
sustaining the initial determination, the referee relied upon our decision in
Appeal Board, 42,766-54 and concluded that since acceptance of the employment
would not have interfered with claimant’s membership in her union, it
necessarily follows that her refusal of the employment was without good cause.
We do not accept this conclusion.
It is true that
acceptance of the offered employment would not interfere with the retention of
claimant’s membership in her union and she cannot rely upon subdivision (a) of
Section 593.2 of the Law to spell out statutory good cause for her refusal of
the employment. However, the Law does not limit good cause for refusal of
employment to the specific circumstances recited in the several subdivisions of
the above section. On the contrary, it is clearly provided in the statute that
the disqualification shall apply on if the refusal is "without good
cause." There are no limitations in the statute on the particular
circumstances or situations which may be deemed to constitute "good
cause." The Law merely delineates four separate conditions which
shall, as a matter of law, be deemed to constitute "good
cause." If the reasons relied upon by the claimant for the refusal of
employment are not such as to preclude a finding of lack of good cause as
a matter of law, the reasons so advanced must be considered to determine
whether, in the particular case, good cause existed as a matter of fact.
We have held that among many other reasons there is good cause to refuse
employment if acceptance thereof would affect adversely a claimant’s health
(Appeal Board, 10,062-43) or would endanger a claimant’s safety and would be
hazardous to a claimant on account of age (Appeal Board, 10,152-43; 13,221-46)
or handicap (Appeal Board, 16,936-48) or would be in violation of a claimant’s
religious scruples (Appeal Board, 34,048-52). Such conclusions are founded upon
findings of fact supported by credible and convincing evidence. In substance,
the test in such circumstances is whether a reasonably prudent person,
genuinely attached to the labor market, would be impelled to reject the
employment under the conditions which confronted the claimant.
Applying that test to
the facts herein, the conclusion is compelled that claimant’s refusal of the
offer was with good cause because of the substantial detriment which would have
resulted otherwise. In view of claimant’s advanced age, the fact that by her
past labors she had earned the right to retire and receive a pension within
five months after the date of the offer herein, and the fact that she had
already elected to avail herself of that right, claimant had sound and valid
reasons constituting "good cause" to avoid any act which would have
produced a forfeiture of that right or would have interfered with her exercise
thereof. Since acceptance of the offered employment would have immediately
deprived claimant of the right to receive her pension at the time she was due
to retire and would have made it necessary for her to either forfeit the
pension entirely or else postpone her retirement until she could again procure
employment in her industry and continue therein for at least two additional
years, she acted reasonably and with good cause when she refused the offer.
The facts here are
distinguishable from those found in our decision in Appeal Board, 42,766-54,
relied upon by the referee. In the cited case, we specifically pointed out that
there would have been no loss of retirement benefits unless the claimant worked
outside of the industry for a consecutive period of 24 months and that material
prejudice to claimant was unlikely since his retirement benefits remained
unaffected so long as he had 26 weeks of employment with an employer who was a
contributor to the pension fund. Moreover, in the cited case claimant’s
retirement was not imminent and acceptance of the offered employment would not
have compelled the claimant either to forfeit the pension or postpone his
retirement.
Under all of the
circumstances herein, we conclude that claimant’s refusal of the offered
employment with good cause.
The initial
determination of the local office disqualifying claimant from receiving
benefits for 42 consecutive calendar days effective April 17, 1959 on the
ground that, without good cause, she refused employment for which she is
reasonably fitted by training and experience and charging her with an
overpayment of $33 in benefits deemed to be not recoverable, is overruled. The
decision of the referee is unanimously reversed. (February 16, 1960)
COMMENTS
The principle in this
decision should be applied restrictively. The Appeal Board has intimated that a
different result might obtain if the claimant was not of advanced age and
retirement was not imminent. Furthermore, it must be clearly established that
the specific employment would have resulted in a forfeiture of the retirement
eligibility. The offered position in this case was of indefinite duration and
it is doubtful whether a temporary job, for instance, would have the same
consequences.
Index
No. 1460H-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April
5, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Availability – Union Considerations
Appeal Board Case Number 72,802-60 et al
PAYMENT OF STRIKE BENEFITS FROM UNION FUND
The receipt of strike
benefits from a union fund does not render a claimant ineligible for benefits
when the payments are not contingent upon the rendition of services during the
strike.
Referee’s Decision: The referee sustained the initial
determinations of the local office holding claimants eligible to receive
benefits effective August 10, 1959 without disqualifying conditions and
overruling the employer’s objections thereto.
Appealed By: Employer
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:
* * *
Claimants,
machinists, toolmakers and pattern makers, filed clams for benefits effective
August 10, 1959. By initial determinations, they were ruled eligible for
benefits, in that they filed valid original claims. The employer requested a
hearing and duly made the statutory deposits therefore, contending that
claimants were not available for employment, were not totally unemployed, and
that payment of benefits to these claimants would constitute an unreasonable
and arbitrary taking of property without due process.
The
employer operates a factory for the production of iron and brass valves at
Binghamton. It was in contractual relations with a local of the International
Association of Machinists and with the Patternmakers League of North America,
both labor unions. Effective June 22, 1959, the local of the International
Association of Machinists commenced a strike at this plant and established a
picket line. The strike continued until August 26, 1959, at which time the
employees returned to work. The claims herein followed the seven-week
suspension period set forth in the Unemployment Insurance Law for loss of
employment due to strike; 183 of the employees of the employer herein filed
claims for benefits. All of these employees were also required to file
applications for employment at the employment office. One of these employees
was referred by the employment office to a job and was thereafter disqualified
for refusal of employment. That is not in issue herein.
The
constitution of the International Association of Machinists provides (Article
19) for the method of declaring a strike and for the payment of strike benefits
to members of a local union. After describing therein the method of payment of
such strike benefits, it further provides, in part: (section 7 of Article 19),
"No benefits shall be paid to members who refuse to do the duties assigned
to them by those in charge of the strike." The union strike fund from
which payments are made is accumulated by a per capita tax. Payments from their
fund were made to the strikers commencing with the second week of the strike.
The first payment was $35 and thereafter, $10 weekly. Most of the workers
picketed several hours a week. Pursuant to the constitution only those
employees who were members of the union for six months could qualify for the
strike-benefit payment from the union. Although the union sought to have all
the members picket during the strike, payments were made to some of the members
who did not picket. Several members of the union who were ill received strike
benefits. One member was on parole and he received strike benefits, although he
did not picket the employer’s establishment.
Between
June 22 and August 26, the employment office referred five of these strikers to
other employment. Three workers accepted referrals for temporary work.
Two
officers of the local of the International Association of Machinists ordinarily
receive a monthly allowance for duties performed by them on behalf of the
local, but, during the period in question, did not receive such payments. Seven
employees of the employer herein were members of the Patternmakers League.
Their agreement with the employer provided that they were not required to cross
a picket line in the event of an industrial controversy. Their local did not
call a strike at this establishment. They received a $20 weekly payment from
the Union for subsistence. The patternmakers were not required to do anything
to receive such payments. Although there are employers in Binghamton and its
vicinity that employ machinists and tool makers, there is apparently no other
employer there employing patternmakers.
From
1956 to 1959, the employer’s contribution rate established pursuant to the
experienced rating formula of Section 581 of the Unemployment Insurance Law was
less than one percent of all wages paid by the employer under this Law.
It
was stipulated by all parties that the facts herein apply to all employees and
claimants similarly situated, and that the decisions in the cases chosen for
the hearing would likewise apply to the others so similarly situated.
Appeal Board Opinion and
Decision: Since the referee has
rendered a well-reasoned opinion, we adopt it as the opinion of the Board:
Claimants
herein were available for employment within the meaning of the Unemployment
Insurance Law and were totally unemployed. A voluntary picket line does not
establish that a claimant is unavailable for employment or that he is not
totally unemployed. (Appeal Board, 46,075-54.) In that case, the Board stated
that
***a
claimant who seeks through recognized means to obtain better working conditions
on his job from his employer, strongly suggests an attachment to the labor
market (See appeal Board, 27,617-51). Likewise, the claimants’ attempt to
return to their former jobs by requesting re-employment was a further
manifestation of their attachment to the labor market and their availability
for work.
In
the cited case, the workers were on strike, spent considerable time picketing
employer’s premises, and received $25 a week from a fund. The time spent on the
picket line there was arranged among the strikers. The Board in ruling these
claimants eligible for benefits, also stated,
***claimants
were willing and ready to accept work without unreasonable restrictions.
***Claimants reported as required to the state employment office; they were
interviewed and satisfied the authorities that they were genuinely desirous of
work and had maintained their attachment to the labor market. They were exposed
to the reservoir of employment opportunities afforded by that office and none
of them ever refused to accept a referral to employment. ***Their inability to
find work cannot be used as a basis to establish that they were unavailable for
work.
A
similar situation prevailed herein.
In
Appeal Board, 58,900-57, it was held that picketing for two hours a day was not
sufficient to establish unavailability for employment.
The
payments to the strikers herein from a fund created by the members of the union
were in the nature of subsistence and did not constitute wages. These claimants
were not hired by the union to picket. No proof was interposed to establish
that weekly payments to the strikers were made pursuant to a contract of hire,
either expressed or implied, or that these payments were contingent upon the
rendition of services by the claimants. Some of the strikers who did not picket
received these payments. Therefore, these payments were in the nature of strike
benefits designed to assist the strikers financially. The Industrial
Commissioner’s interpretation has promulgated a regulation with respect to the
status of pickets. The interpretation provides as follows:
2.
Status of Pickets (Section 511, 12, 517, 592, Unemployment Insurance Law).
1.
A. All persons engaged
by a labor union for the purpose of picketing are employees of the union
provided remuneration is paid for such services. The fact that a person so
engaged for the purpose of picketing is a member of the union, is on strike, or
is or was an employee of the employer whose business is picketed does not
affect his status as an employee of the union.
B.
Payments made by labor union to persons performing picket services are not
‘remuneration’ within the meaning of the unemployment insurance law.
1.
if they represent
reimbursement for expenses which are either separately accounted for to the
union by the person performing picket services or fixed in a reasonable amount
by agreement between the parties before the services as a picket are rendered
or
2.
If they represent strike
benefits. "strike benefits’ are payments made by a labor union, pursuant
to union rules and regulations, because of a strike to its members
participating in the strike, to assist them financially during the strike,
provided such benefits are not conditioned in fact or in amount upon the
rendering of services during the strike.
In
citing that interpretation, the Appeal Board, in 32,350-52, held that a $35
weekly payment paid by a union to strikers did not establish that such strikers
were employed during a claim for benefits. Further support for this position is
found in Radice et al v. Department of Labor and Industry, Division of
unemployment Compensation, Board of Review and Trenton Times Corporation,
decided in the Superior Court, New Jersey, and reported in the Unemployment
Compensation Interpretation Service, Benefit Series, Vol. 12, No. 10, page 124
(13,786 N.J. Ct. ), wherein the Court in passing upon payments made to striking
newspaper workers by a union held (p. 126):
We do
no believe that the strike benefits were in any real sense in payment of the
services to the Trentonian, (A newspaper established by the strikers). They
came from a fund to which the appellants had contributed and might be
analogized to savings funds or to private insurance for which they had paid the
premiums. The amount of benefits, although dependent on marital status, had no
relation to the nature or extent of their Trentonian services. If they were at
home sick or were fulfilling other strike duties, such as picketing, they
received the same benefits. ***It is true, as the Board indicated, that the
strikers were required to perform assigned duties and would not receive their
benefits if they declined without reason. That, however, would appear to be
simply an exercise of union discipline rather than an indication that the
benefits were paid as wages or remuneration for services rendered. ***This
construction is fully consonant with the broad remedial objectives of the
statute which have been frequently recognized by our courts. See Bergen
Point Iron Works v. Board of Review, 137 N.J. L. 685 (E.& A. 1948)
Strike
benefits are not regarded as wages under the taxing provisions of the Federal
Social Security Act. Cf. Israelite House of David v. United States,
58 Fed. Supp. 862 (D. Mich. 1945), cited in Matter of Radice, supra.
The
employer contends that during the period in question, there was a steady demand
in the community for machinists and tool makers, and that these claimants did
not "accept" new employment. It has not been established that
such jobs were offered to these claimants, and while they did not accept such
employment, neither did they refuse it. A realistic appraisal of the situation
indicates that the other employers in the locality may have been reluctant to
engage these strikers. The fact that they were out of work was known to the
community. The employment office, where these claimants had registered for
work, apparently did not receive orders from employers in the community for
these machinists and toolmakers.
With
respect to the employer’s contention that payment of benefits to these
claimants is unconstitutional, in that it would increase its contribution rate
and thereby constitute an unreasonable and arbitrary taking of property without
due process, it is sufficient, at this point, to cite Appeal Board, 12,116-45,
wherein it stated,
We
are not competent to pass upon appellant’s contentions that part of section
516-B *** is unconstitutional because it is discriminatory. The Unemployment
Insurance Appeal Board is not a court of general jurisdiction. It is an
administrative body charged with the adjudication of disputes arising under the
Unemployment Insurance Law. It is well settled that an administrative body may
not question the constitutionality of legislation under which it operates; it
must obey the mandate of the statute. (Mortgage Commission of the State of
New York v. Harmon, 249 App. Div. 25, affirmed 274 N.Y. 598.)
See also Niagara
Falls Power Company v. Halpin, 267 App. Div. 236, affirmed 292 .Y. 472.
We add the following: In
answer to the employer’s contention that the payment of benefits to claimants
after the expiration of the seven-week suspension is in violation of
constitutional guarantees of due process, we point out that such contention was
expressly rejected by the Court of Appeals in Chamberlin v. Andrews,
271 N.Y. 1, which upheld the constitutionality of the Unemployment Insurance
Law (affirmed 299 U.S. 515, reargument denied 301 U.S. 714).
The initial
determinations of the local office are sustained. The employer’s objections are
overruled. The employer is not entitled to the return of its appeal deposits.
The decision of the referee is unanimously affirmed. (March 3, 1960)
COMMENTS
This is an employer’s
appeal and the decision is in accordance with Administrative Interpretation No.
2, quoted in the decision.
Index
No. 1290B-6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April
18, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
PREVAILING WAGES
General
APPELLATE DIVISION DECISION
Berta Shotkin (1960); 10 AD 2d 738
Appeal Board Case No. 63,045-58
PREVAILING WAGES: UTILIZATION OF WAGES IN ALL INDUSTRIES
Generally, in
determining the prevailing wage of an occupation common to all industries
(Ass’t. Bookkeeper), surveys of wages paid to such workers in the various
industries should be taken into account rather than considering only wage
surveys in a particular segment of industry (utility establishments).
Appeal Board Decision
A decision was rendered
by this Board on April 20, 1956, (Appeal Board, 53,998-56) affirming the
decision of the referee dated December 29, 1955, overruling the initial
determination of the local office disqualifying claimant from receiving
benefits effective November 23, 1955 on the ground that, without good cause,
she refused employment for which she is reasonably fitted by training and
experience. The Industrial Commissioner appealed from the Board’s decision to
the Appellate Division handed down its decision reversing the decision of the
appeal Board, and directed that the matter be remanded to the Appeal Board for
further proceedings in accordance with the opinion of the Appellate Division (4
App. Div. 2d 924). On October 22, 1957 an order was entered in the office of
the clerk of the Appellate Division of the Supreme Court for the Third
Department reversing the decision of the Appeal Board and remanding the matter
to the Appeal Board for further proceedings in accordance with the opinion of
the Court.
The opinion of the
Court, insofar as is herein material, reads as follows:
* * *
Per Curiam:
Furthermore,
the classification of the claimant was a matter of controversy and the Board
should have given the Industrial Commissioner full opportunity to present proof
on that subject. It is true that the claimant’s skills were somewhat above
those required for an assistant bookkeeper, as that position is defined in the
Industrial Commissioner’s survey, but, as the Board recognized in its opinion,
the claimant did not "possess all of the stated experience or various
qualifications" for the position of Accounting Clerk, Senior, which the
Board thought "more nearly match(ed)" the claimant’s previous
experience and qualifications. The Commissioner offered additional proof on the
question of the proper job classification but the Board declined to hear it.
Pursuant to the
provisions of 624 of the Law, the Appeal Board on January 3, 1958 entered an
order dated December 27, 1957, making the order of the Appellate Division, the
order of the Appeal Board. In compliance with the provisions of the said order,
the Appeal Board after giving due notice to all parties, placed this matter on
its hearing calendar for disposition in accordance with the directions
contained in the order of the Court.
A hearing was held
before the Board at which claimant and representatives of the Industrial
Commissioner appeared and were accorded a full opportunity to be heard.
Based on the record and
testimony in this case and upon all of the proceedings had heretofore herein,
the Board makes the following
Findings of Fact: Claimant has had more than 13 years experience
maintaining the records and books of her employers’ businesses. Prior to filing
for benefits, she was employed in her last job by a public utility concern for
two years and seven months to September 30, 1955, at a terminal salary of $73 a
week. Claimant lost this job when the firm was reorganized.
Claimant filed an
original claim for benefits effective October 3, 1955 and was registered for
employment. She was classified by the employment service as a bookkeeper III.
On November 23, 1955 the employment office offered claimant referral to
employment as an assistant bookkeeper (bookkeeper III) at a salary of $65 a
week. She refused on the ground that the salary was too low. She desired at
least $70 per week.
Claimant’s prior
experience involved working independently. Her work was in accordance with
standardized accounting practices and procedures. Her duties were those
customarily performed by an accounting clerk, class A, entailing a minimum of
supervision. Claimant prepared reports, both regular and special. Specifically,
she prepared quarterly payroll reports for tax purposes, sales reports,
accounts payable and accounts receivable. Claimant also analyzed and adjusted
involved utility company reports dealing with rates and schedules. She audited
all accounts payable, invoices and prepared payrolls in her last employment at
the public utility establishment.
A survey made by the
Bureau of Labor Statistics of the United States Department of Labor, of wages
and salaries paid in various occupations in New York City in March 1955,
covering manufacturing and non-manufacturing establishments employing 3057
workers in the category of clerks, (female) accounting, class A, reveals that
the average weekly earnings in the claimant’s locality for public utility
establishments was $76.50.
We find that the
prevailing wage for similar work in the locality at the time of the offer was
$76.50 per week as indicated in the Federal survey. On December 16, 1955
claimant, through her independent efforts, obtained employment at an initial
salary of $75 per week.
Appeal Board Opinion and
Decision: On the basis of
claimant’s previous work record she was classified incorrectly as an assistant
bookkeeper (bookkeeper III). In our opinion claimant’s experience and duties
which she performed in her previous employments indicate that she should be
classified as a clerk, accounting, class A (public utility). In any even
claimant’s skills gained by wide experience are higher than those used as a
standard in determining the occupational classification of assistant
bookkeeper, (bookkeeper III). The employment service’s representative conceded
at the last hearing before the Board that claimant’s skills gained by wide
experience could fit the occupational classification of clerk, accounting,
Class A, as set forth in the wage survey made by the Bureau of Labor Statistics
of the United States Department of Labor in which the standard weekly earnings
in public utility establishments were found to be $76.50. It is significant to
note that the Industrial Commissioner contended (through the testimony of the
Employment Service representative) that the classifications of bookkeeper III
and clerk, accounting, class A are comparable. The Federal survey covers a much
wider field as to the number of employees involved than does an occupational
wage survey used by the insurance office as a guide made in October 1955. It
covers 2072 employees and indicates that the median salary for bookkeeper III
was $65 per week. We choose to rely on the Federal survey as our guide in
determining the prevailing wage in the locality for a person with claimant’s
training and experience. Had claimant accepted the offered employment, the
maximum wage she could have expected to receive was $65 per week. This is at
least 15 percent less than the rate prevailing in the locality for similar
work, according to the Federal survey. In our opinion, the salary offered was
substantially less than the prevailing rate. (Appeal Board 37,695-53)
Appellate Division
Opinion and Decision: Appeal by the
Industrial Commissioner from a decision of the Unemployment Insurance appeals
Board which affirmed the decision of an unemployment insurance referee,
overruling an initial determination by the Industrial Commissioner,
disqualifying the claimant from receiving benefits on the ground that she had,
without just cause, refused employment for which she was reasonably fitted by
training and experience.
The facts appear in our
memorandum decision on an appeal (4 A.D. 2d 924) from an earlier board decision
which held that the claimant had good cause to refuse an offer of employment as
an assistant bookkeeper at $65 per week since, on the basis of her training and
experience, she was entitled to classification as an accounting clerk, senior,
the prevailing wage for which the board found to be $76.50 to $80 per week. We
held that the "position of assistant bookkeeper tendered to the claimant
was not unreasonably remote from the highest position for which her training
and experience fitted her"; that the board should have received certain
additional proof offered by the Industrial Commissioner on the question of the
proper job classification; and we thereupon reversed the decision and remitted
the matter to the board for further proceedings.
Upon remittal,
additional proof was taken upon which the board found that claimant
"should be classified as a clerk, accounting, class A (public
utility)" for which the prevailing wage was found to be $76.50. This
classification was of a grade lower than the classification of "accounting
clerk, senior" to which the board’s previous decision had assigned her.
The decision now appealed from overruled the initial determination of
disqualification from benefits on the ground that the $65 salary offered
"was substantially less than the prevailing rate." Clearly the board
intended to quote the statute but there the prevailing rate referred to is that
of "the wages *** offered", that is, in the new position;
and a claimant may properly refuse if the wages are "substantially less
favorable *** than those prevailing for similar work in the locality".
(Labor Law §593, subd. 2, d.) The board seems to have reached the conclusion
that the wages for the position offered were less than those prevailing for
similar work on grounds which seem to us tenuous at best. First, it cites and
finds "significant" certain testimony that the classification of
assistant bookkeeper and of clerk, accounting, class A (without the addition
"[public utility]") are "comparable" and then refers to a
Federal survey indicating earnings in the latter position of $76.50 in
public utility establishments, while ignoring the fact that the same survey
indicated a prevailing wage of $66.50 for Class A accounting clerks in service
institutions (such as the hospital in which the disputed position was offered)
and an average of $69.50 for such clerks generally. While claimant had indeed
been employed by a utility and had been paid $73, certainly in a case such as
this, involving work of a nature utilized in all industries, the determination
of prevailing rate under subdivision "d" is not to be reached upon
the application of so narrow a test as that afforded by a particular industry;
absent proof of some unusual or exceptional factor or condition.
Our conclusion on the
prior appeal that the position tendered claimant "was not unreasonably
remote from the highest position for which her training and experience fitted
her" applies with even greater force to the slightly down-graded
classification found by the present board decision; and is fortified, rather
than the contrary, by the testimony cited by the board to the effect that the
positions are "comparable".
We find no substantial
evidence supportive of the decision.
Decision reversed and
the initial determination of the Industrial Commissioner reinstated, without
costs. (March 18, 1960)
Index
No. 810-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May
25, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION & REPORTING
Filing and Certification Requirements
APPELLATE DIVISION DECISION
(MATTER OF JOHN OMOLINO; 11 AD 2d 553
Appeal Board Case Number 67,648-58
FILING ADDITIONAL CLAIM – "OFF DAY" APPEARANCE
Reporting at the
insurance office on a day of the week which precedes his regular assigned day
and in which his additional claim is not accepted does not entitle a claimant
to any credit for benefits in that week when he was instructed to return on his
regular day but because of negligence, failed to do so.
Referee’s Decision: The referee sustained the initial
determination of the local office holding claimant ineligible to receive
benefits effective September 29, though October 5, 1958 on the ground that he
failed to comply with registration requirements.
Appealed By: Claimant
Appeal Board Findings of
Fact: Claimant, a setup man,
filed a claim for benefits effective December 30, 1957. He returned to work on
January 5, 1958 and worked to Friday, September 26, 1958 when he was laid off
for one week. Claimant appeared in the local office on Monday, September 29,
1958 for the purpose of filing an additional claim for benefits His claim was
not accepted and he was instructed to return on Friday, October 3 because that
had been his assigned reporting day on his original filing. Claimant did not
report at the local office on October 3. Claimant reported at the local office
Monday, October 6. He returned to work that evening.
An initial determination
was issued holding claimant ineligible for benefits effective September 29
through October 5, 1958 on the ground that he failed to comply with
registration requirements.
Appeal Board Opinion and
Decision: Our decision in Appeal
Board, 65,918-58 is decisive of the issue in this case. There also the
claimant’s attempted refiling on a day of the week preceding his regular
reporting day was not accepted and the claimant failed to return to the local
office in the week in question. The Board’s decision holding that claimant was
entitled to have his claim made effective as of the date of the attempted fling
reads in part as follows:
* *
*In the instant case, it is undisputed that in the week for which claimant
seeks to be credited with a refiling of his claim, he did visit the insurance
office and applied for such refiling. He was at the insurance office on
Tuesday, April 29, for that specific purpose. Notwithstanding the fact that
claimant did not again report to the insurance office in that same week in
accordance with the instructions given to him when he visited the insurance
office on April 29, claimant may not be denied the right to refile his claim,
nor may he be deprived of credit for his registered days of unemployment in
that week. Under the provisions of the statute (Section 596), the
Commissioner’s representatives are required to credit an applicant for benefits
with the filing of his claim when application therefore is made. The
Commissioner is authorized to promulgate regulations with respect to
registration and reporting requirements but such regulations are valid only
insofar as they implement the statutory provision. The regulations may not be
so construed as to deprive an applicant for benefits of a right conferred upon
him by statute. In pursuance of his authority, the Industrial Commissioner
promulgated Regulation 40 pertaining to the filing of claims. It is provided in
such regulation that an applicant for benefits shall file an additional claim
"in the week for which he expects benefits if his claim has lapsed because
of intervention of any week in which he accrued no effective days.* * *"
It is further provided that such additional claim should be filed on the
regular report day assigned to the applicant and that a claim so filed shall be
deemed filed as of the first day of his unemployment occurring in that week and
that if he is employed on his regular reporting day, the additional claim shall
be filed on the next day of unemployment occurring in that week. The regulation
specifically provides that a claim so filed "shall be deemed filed as of
the first day of his unemployment occurring in such week," and that
"if such requirement is not met, but an additional claim is filed
subsequently in the same week, the claimant may not be credited with any days
of total unemployment preceding the day on which such additional claim was
filed." It is obvious from the language used in the quoted
regulation that a claimant’s failure to file an additional claim on his
regularly assigned reporting day does not result in his ineligibility to claim
credit for all effective days in that week. The only effect of the regulation
is that his failure to file on his regularly assigned reporting day deprives
him of credit for the days of the week which precede his actual visit to the
insurance office. The regulation makes reference to the filing of an
additional claim on a day "subsequent" to the reporting day, but
makes no reference to the effect of a report on a day prior to
the assigned reporting day. Under these circumstances, there is not authority
to deny to the claimant the refiling to which he was entitled when he reported
to the insurance office on Tuesday, April 29. Since that was not his regularly
assigned reporting day, he is not entitled to have his claim made effective on
any day prior to the day of his actual visit. His visit on April 29 entitled
him to a refiling effective April 29. (Underscoring supplied).
The initial
determination of the local office is overruled. The decision of the referee is
reversed. (February 18, 1959)
Appealed By: Industrial Commissioner
Appellate Division
Opinion and Decision: Appeal by the
Industrial Commissioner from a decision of the Unemployment Insurance Appeal
Board which reversed the decision of a referee and overruled the initial
determination of the Industrial Commissioner holding claimant ineligible to
receive benefits for a six days’ period for failure to file his additional
claim on the day assigned by the commissioner.
For the purposes of
administering the Unemployment Insurance Law, the commissioner is given
"power to make all rules and regulations." (Labor Law §596, subd. 1)
and "such time" has been prescribed by the commissioner by
regulations 40 and 41. Regulation 41 provides: "each claimant shall report
and certify to his unemployment, at specified days and hours established for
him by the unemployment insurance office"; and regulation 40 provides that
any additional claim by a claimant "shall be filed on his regular
reporting day assigned to him in accordance with regulation 41" and
further provides that compliance therewith "may" be excused.
Respondent does not contest the validity or reasonableness of the regulations
which, indeed, and in view of the vast number of claims presented, appear
necessary in order to assign times evenly through this week and to avoid the
burden and confusion which would attend the appearance of an undue proportion
of claimants on one particular day to be received by a staff provided for, and
geared to a more equal distribution.
After a claim for
benefits effective December 30, 1957, claimant worked from January 5, 1958 to
Friday, September 26, 1958 when he was laid off for one week and in order to
file his additional claim appeared at the local office on Monday, September 29.
His claim was not accepted and he was instructed to return on Friday, October
3, since Friday had been his assigned reporting day upon his original filing.
Claimant "forgot" to return on that day (the initial determination
later finding this to be "negligence") and did not return on Monday,
October 6, before returning to work on that evening. Under regulation 40 any
claim timely filed, i.e., "on his regular reporting day", would
"be deemed filed as of the first day of his unemployment occurring in such
week." It seems clear that claimant’s appearance on Monday, September 29,
was of no effect and that his failure to appear and file on Friday, October 3
deprived him of benefits for the otherwise effective days in that week; and
that it would, of course, have been pointless for him to have appeared on the
next succeeding Friday to file "as of the first day of his unemployment
occurring in such week" since he was employed during that week. Decision
reversed, without costs, and case remitted. (May 5, 1960)
Index
No. 1580B-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
28, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
MISREPRESENTATION
Penalty Period
Appeal Board Case number 74,176-60
ONE OR TWO OFFENSES, QUESTION OF
Wilful misrepresentation
at the time of filing as to last day worked and the reason for termination of
employment represents two offenses, each carrying a separate forfeiture.
Referee’s Decision: The initial determination of the local office
holding that claimant wilfully made false statements to obtain benefits, by
reason of which a forfeiture of 48 effective days was imposed as a penalty in
reduction of claimant’s future benefit rights is modified by reducing the
forfeiture to 24 effective days.
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, a
sewing-machine operator, refiled effective February 3, 1960. By initial determination,
effective February 3 he was ruled ineligible for one day because of lack of
total unemployment. Effective February 4 he was disqualified for 42 consecutive
calendar days for voluntary leaving of employment without good cause. His
rights to future benefits were ruled to be forfeited for 48 effective days
because of wilful false statements made for the purpose of obtaining benefits,
and he was ruled overpaid $22.50, which was deemed recoverable.
Claimant was employed on
a seasonal basis for 27 and a half years by one employer. He has filed claims
for unemployment insurance annually since the inception of the Law. He was laid
off in December 1959, because of lack of work. He is a union member and
customarily works at union piecework rates. He was referred to work by his
union to another employer who was in contractual relations with his union at a
union piecework rate, pending recall by his regular employer.
Claimant worked on
February 1, 2 and for two hours on February 3 and voluntarily left his employment
because he did not wish to continue working. He concedes that he could have
continued working until the end of that week, through February 5. He
anticipated that he would be recalled by his regular employer on February 8. He
was not recalled until subsequent to February 18.
On February 4 claimant
refiled his claim, at which time he contended that the last day that he had
worked was February 2 and that he had left or lost his job on February 2
because of "temporary replacement." Claimant knew that he had last
worked on February 3 and he knew that he had quit the job. On February 11 he
certified to employment on February 1 and 2 only, and to total unemployment on
every other day in the statutory week ending February 7.
Appeal Board Opinion and
Decision: Although we have
adapted the referee’s findings of fact, we conclude as a matter of law that the
reduction of forfeiture days from 48 to 24 was erroneous.
We agree with the
conclusion of the referee that claimant worked on February 3 and was,
therefore, not totally unemployed on that day. We further agree with the
referee’s conclusions that claimant voluntarily left his employment without
good cause; that he wilfully made false statements for the purposes of
obtaining benefits, when he stated, on February 4 and again on February 11 that
the last day that he had worked was February 2; and when he further stated that
the termination of that employment was involuntary. However, we do not agree
with the referee’s conclusion that although claimant made three false
statements on two different occasions, all related to the same offense and only
one forfeit penalty of 24 effective days should be imposed.
The claimant made false
statements with regard to two different facts. He falsely reported the reason
for the termination of his job. He also falsely reported his employment status
on February 3. These separate and disassociated acts resulted in two separate
offenses committed for two different purposes; one to avoid disqualification
for voluntary leaving of employment without good cause and two, to obtain
benefits for total unemployment for a day on which claimant was employed. Each
offense carried a separate forfeiture. Under the standards established by the
Division of Employment and approved by the Board, the forfeiture is 24
effective days in an instance where a benefit payment results from the wilful
misrepresentation and 20 effective days where no payment is actually made. In
the instant case the two separate offenses resulted in a single benefit payment
and therefore, the aggregate forfeiture should be 44 effective days.
The initial
determination of the local office holding that claimant wilfully made false
statements to obtain benefits, by reason of which a forfeiture of 48 effective
days was imposed as a penalty in reduction of claimant’s future benefit rights,
is modified by reducing the forfeiture to 44 effective days and, as so modified
is sustained. The decision of the referee is modified accordingly and, as so
modified is affirmed. (June 29, 1960)
Index
755D.9
760A.2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JULY
1960
INTERPRETATION
SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Restrictions of Employment
Days - Hours
COLLEGE STUDENT - RESTRICTION TO PART-TIME EMPLOYMENT
Claimant with a prior
history of full-time employment who restricts himself to part-time employment
because of college attendance is unavailable for employment within the meaning
of the law.
A.B. 74,013-60
Referee's Decision: The initial determination of the local office
holding claimant ineligible to receive benefits effective February 8, 1960 on
the ground that he was not available for employment is overruled.
Appealed By: Industrial Commissioner.
Findings of Fact: Claimant, a laboratory technician and college
student, filed for benefits effective December 28, 1959. Claimant had attended
a college in 1958 for one year. During his second year, he secured daytime
employment and attended college in the evenings. Between January and June,
1959, claimant had worked full-time as a laboratory technician. During the
summer of 1959 he had worked as a counselor in a summer camp. Following this
employment, he became re-employed as a laboratory technician and worked for two
months until December 24, 1959. For three or four months during 1958, claimant
had worked as a part-time luncheonette counterman in the evenings while
attending college in the daytime.
Claimant re-entered
college as a fully matriculated day student commencing with February 8, 1960.
His school hours are Mondays and Wednesdays, 10: a.m. to noon, Tuesdays and
Thursdays, 9:00 a.m. to 1:00 p.m., and Fridays, 11:00 a.m. to 3:00 p.m.
Claimant admits that he cannot accept full-time employment in his usual
occupation because it would conflict with his school program. His sole
employment since February 8, 1960 was a temporary job as a part-time theatre
usher for three days. Claimant's sole efforts to secure employment was to read
the ads in the New York Times and to inquire of friends regarding work.
Appeal Board Opinion: We do not agree with the conclusions of the
referee that claimant demonstrated a sustained attachment to the labor market
by making reasonable and diligent efforts to secure work and that there was no
proof that there are no opportunities for employment at hours which would not
conflict with claimant's scheduled courses.
Since claimant restricts
himself to the hours which will not interfere with his attendance at college,
whatever work he may engage in, is subordinate to his purpose of completing his
education. His major employment history is in full-time employment. His
restriction to less than such full-time employment renders him unavailable for
employment within the Unemployment Insurance Law. Our decision in Appeal Board,
12, 627-46 controls here.
The initial
determination of the local office holding claimant ineligible to receive
benefits effective February 8, 1960 on the ground that he was not available for
employment is sustained. The decision of the referee is reversed. (7/8/60)
Index
No. 1320A-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
28, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Employment Subsequent to Dispute
Appeal Board Case Number 73,708-60
LOSS OF EMPLOYMENT DUE TO INDUSTRIAL CONTROVERSY, QUESTION OF
Claimant who has two
jobs, one a full-time split shift and the other a daily part-time job, who
loses his full-time job because of an industrial controversy and one month
later after being laid off from his part-time job files a claim, is not
disqualified for loss of employment because of an industrial controversy since
claimant was employed daily and ineligible until he filed for benefits after
being laid off from his last job.
Referee’s Decision: The initial determination of the local office
suspending the accumulation of benefit rights by claimant during a period of
seven consecutive weeks effective July 15, 1959 on the ground that he lost his
employment due to an industrial controversy in the establishment in which he
was employed is sustained.
Appealed By: Claimant
Findings of Fact: Claimant became employed as a porter in a
restaurant in January 1959. He worked part-time hours on six days in a week and
his wages were $30 weekly. In February 1959, claimant obtained employment in
the open-hearth department of a steel manufacturer on a split shift basis. He continued
to work at the restaurant six days a week during hours which did not conflict
with his other employment. Claimant lost his employment at the steel mill on
July 14, 1959 due to the national steel strike. He continued his employment at
the restaurant until August 8, 1959 when he was laid off due to lack of work.
Claimant filed a claim
for benefits effective August 10, 1959. His benefit rights were suspended for
seven weeks effective July 15, 1959 on the ground that he lost his employment
at the steel mill due to a strike.
Appeal Board Opinion and
Decision: In sustaining the
initial determination of the local office, the referee concluded that claimant
was employed on July 15, 1959, because of the industrial controversy, and that
the fact that he had other employment does not affect the result. We do not
agree with the referee’s conclusion.
Despite the loss of his
employment as a steelworker on July 14 claimant remained continuously employed
through August 8, 1959. Had claimant suffered an ordinary layoff by the steel
mill on July 14 his continued employment at the restaurant would bar any claim
for unemployment insurance benefits on the ground that under the law he would
not be totally unemployed. Had claimant at the time of such lay off left his
restaurant employment, he would be chargeable with a disqualification for a
voluntary leaving without good cause of the restaurant employment. By the same
logic, claimant’s rights as of the date of his filing on August 10, 1959 must
be determined on the basis of his employment up to the time of his loss of the
restaurant employment. Section 592.1 of the Unemployment Insurance Law provides
for a suspension of seven weeks for loss of employment due to a strike.
Claimant continued to be employed after the strike began. When he filed for
benefits on August 10, he was (totally unemployed) only because he lost his job
in the restaurant. We, accordingly, hold that under the circumstances herein
claimant did not lose his employment due to the steel strike. The initial determination
of the local office is overruled. The decision of the referee is reversed.
(July 8, 1960)
COMMENTS
The principle herein
stated should be limited in its application to cases containing identical
facts. That is, to cases where claimant worked simultaneously on two
"every day" jobs and was not eligible for benefits until a layoff
from his last employment. Such cases occur infrequently.
Index
No. 1410C-1
1750.3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
28, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Eligibility, Question of
Appeal Board Case Number 73,779-60
LEAVING EMPLOYMENT ON DAY OF TERMINATION PRIOR TO QUITTING TIME TO
KEEP WITHIN STATUTORY REMUNERATION LIMITATION
A claimant who
deliberately foregoes the opportunity of earning additional wages during the
balance of his last day of employment to keep within the statutory limitation
for partial unemployment benefits, places himself without the scope of the
provisions authorizing the payment of partial benefits and hence renders
himself ineligible for benefits in that week.
Referee’s Decision: The revised initial determination of the local
office disqualifying claimant from receiving benefits for 42 consecutive
calendar days effective December 16, 1959 on the ground that he voluntarily
left his employment without good cause is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, an automobile worker, worked eight
hours on Monday, December 14, 1959 and earned $22.93. He was scheduled to work
eight hours on December 15 on the shift which ended at midnight. That evening,
claimant was told that he would be laid off temporarily at the end of his
shift. Claimant requested and was given permission to leave at 11:42 p.m., 18
minutes before quitting time. As a result, his earnings for December 15 were
$22.07, making a total of exactly $45 for the week. Claimant conceded that he
would have continued to work until midnight on December 15 but he realized that
had he done so, his gross earnings for the week would have been in excess of
$45, the weekly limit prescribed for entitlement to benefits under Section 523
of the Unemployment Insurance Law.
Claimant refiled a claim
for benefits effective December 16, 1959. His benefit rate was $45 weekly. He
returned to work on December 21, 1959. If claimant’s earnings for the statutory
week involved would not have exceeded $45, he would have been entitled to
credit for two effective days that week, and a check at half his benefit rate.
The local office issued
an initial determination disqualifying claimant from receiving benefits
effective December 16, 1959 on the ground that he voluntarily left his
employment without good cause. This determination was based upon the following:
Your
leaving of employment prior to the end of the work shift on December 15, 1959
so that your earnings would not exceed $45 in the week ending December 20,
1959, thereby attempting to make yourself eligible for partial unemployment
insurance benefits, is considered a leaving without good cause.
The referee overruled
the initial determination. The Industrial Commissioner appealed.
Appeal Board Opinion and
Decision: We agree with the
referee’s conclusion that since claimant’s employment was definitely due to
terminate, in any event, at the close of the work day on December 15, due to
lack of work, his failure to complete the work day did not result in a
voluntary leaving of employment without good cause within the purview of
Section 593.1 of the Law (See Appeal Board, 61,771-59). However, the facts
herein compel a modification of the initial determination.
Since it is conceded by
the claimant that there was work for him during the balance of his last day of
employment, which would have enabled him to earn more than $45 during that
week, and that he deliberately refrained from earning such additional wages for
the sole purpose of attempting to qualify for benefits for which otherwise he
would be ineligible, the issue presented is whether the Law contemplates that a
claimant may manipulate his employment and earnings to deliberately bring
himself within its benefit provisions. We think not.
Section 501 of the Law
to which we turn for guidance in the interpretation of its provisions,
specifically provides that the unemployment insurance fund is to be used
"for the benefit of persons unemployed through no fault of their
own." Section 523, during the period here at issue, provided, in effect,
that a person who had partial employment and earned more than $45 in any
calendar week was neither totally nor partially unemployed, during that week,
within the purview of the Law. Hence, such a person may not be credited with
the accumulation of any effective days and is ineligible to receive even a
partial benefit check. To countenance that which the claimant herein has
attempted would negate and frustrate the entire scheme under which benefits
have been provided for involuntary partial unemployment. The amendment of the
Law to provide for partial benefits to those who meet the conditions set forth
in Section 523 was designed to encourage workers to engage in whatever partial
employment was open to them and to earn as much wages as possible. One who
deliberately foregoes the opportunity of earning additional wages to keep
within the limitation for partial unemployment thereby places himself without
the scope of the provisions authorizing the payment of partial benefits and
hence renders himself ineligible for benefits in that week.
The revised initial
determination of the local office holding that claimant voluntarily left his
employment without good cause is modified so as to hold claimant ineligible to
receive benefits for the week involved. The decision of the referee is
reversed. (July 5, 1960)
COMMENTS
- Since claimant left his job with permission 18 minutes
before quitting time on the day that he was laid off temporarily, a
voluntary leaving disqualification is not proper. Similarly, a claimant
cannot be held unavailable for employment on that day.
- In every case where claimant voluntarily leaves his
employment during the day on which he is to be terminated, local offices
should ascertain whether the principle herein stated is applicable.
Index
No. 740.4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
August
22, 1960
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Compulsory Retirement
Appeal Board Case No. 71,117-59 et al
AVAILABILITY: COMPULSORY
RETIREMENT—UNION AGREEMENT
A union contract
requiring compulsory retirement at a specified age does not represent a
withdrawal from the labor market of workers "retired" under the
contract and does not render them ineligible for benefits if they are ready,
willing and able.
Referee’s Decision: The referee sustained the initial determination
of the local office ruling claimants eligible to receive benefits effective
various dates without disqualifying conditions, except as modified by the
referee to make the initial determinations effective July 7, 1959 as to all
claimants except claimants Hal, Maione and Peterson, and to that extent
overruling the objections of the employer thereto. The employer further appeals
from the decision of the referee filed February 3, 1960 sustaining the initial
determinations of the local office holding the three claimants there involved,
Strawberg, Armeli and Raucci, eligible to receive benefits effective various
dates without disqualifying conditions and overruling the objections of the
employer thereto. Claimant Gust Johnson appeals from the decision of the
referee filed September 17, 1959 insofar as it modifies the initial
determination of the local office holding claimant eligible to receive benefits
effective June 1, 1959 without disqualifying conditions by making it effective
July 7, 1959. Claimant Hitchcock appeals from the decision of the referee filed
September 17,1959 insofar as it overrules the initial determination of the
local office holding claimant eligible to receive benefits effective June 1,
1959 without disqualifying conditions and sustaining the objections of the
employer.
Appealed By: The employer who made the statutory deposits.
Findings of Fact: The employer is a manufacturer of metal
products in Jamestown. Claimants were employed at the employer’s factory in
various capacities as production workers, metal workers, etc. The employer is
in contractual relationship with a union representing claimants.
In June 1958, following
negotiations between the employer and the union, an agreement was entered into
for the establishment of a retirement plan. The agreement provided that
employees were to be eligible for voluntary normal retirement at age 65, but
must accept compulsory retirement at age 68. The matter was submitted to a
union vote and was ratified by a majority of the members. On May 23,1959, a
formal pension and retirement plan was promulgated to be effective June 1,
1959. Section 2, paragraph 3, of such agreement provides, in part, that
"an employee must retire no later than the first day of the month
following his 68th birthday." On June 1, 1959, when the
plan was ready for operation, thirty-three employees who had already attained
the age of 68 were compulsorily retired. Included among these were claimant,
Falvey, who had last worked for the employer on April 17,1959 and who had been
absent thereafter due to illness. Included also were claimants, Hall, Maione
and Peterson who had been laid off by the employer for lack of work on March 2,
1959, September 4, 1958 and July 24, 1958, respectively. These layoffs were
prior to the effective date of their compulsory retirement.
Twenty-one claimants
here involved filed claims for benefits. Each of them receives a company
pension. Nine of the claimants receive company pensions at the maximum rate of
$30 monthly. The other claimants receive monthly pensions in varying amounts
from $9.50 to $29.25.
The claimants who were
retired as of June 1, 1959 filed claims for benefits, effective about June 1,
1959. Claimants, Strawberg and Armeli who were retired as of the first day of
the month following their 68th birthdays filed claims for
benefits, effective October 5, November 2 and November 9, 1959, respectively.
Claimant, Raucci, who is 72 years of age had not worked for the employer since
4/24/59, due to illness. He file a claim for benefits, effective November 9,
1959. Initial determinations were issued by the local office holding claimants
eligible to receive benefits effective the dates of their filing without
disqualifying conditions. The employer protested on the grounds that claimants
had voluntarily withdrawn from the labor market and it requested hearings. With
respect to claimants, Hall, Maione and Peterson who had filed previous claims
and were in benefit status prior to June 1, 1959, the employer protested the
payment of further benefits after June 1, 1959 on similar grounds.
After counseling by the
employment service, claimants sought employment at various factories and
industrial establishments in Jamestown and adjoining areas. They applied for
work not only in their usual occupations but for other types of employment,
which they were capable of performing. No offers of employment were made to
claimants by the employment office except in the case of claimant, Howard, who
accepted referral as a paint sprayer but was not hired by the prospective employer.
Claimants were unsuccessful in obtaining employment due to the factors of age
and local employment conditions, except as stated below.
Claimant, Gust Johnson,
obtained employment in the weeks ending September 27,1959 and the weeks ending
January 3, January 10, January 17 and March 6, 1960. The last of such
employment was in Tuxedo, New York. He receives a monthly pension of $13.
Claimant, Nyman, was
employed from January 11 to February 9, 1960 on a temporary job provided by the
employer herein on a non-union basis. He was compelled to give up such
employment due to a temporary illness. He receives a monthly pension of $30.
Claimant, Falvey, has
been employed steadily since March 15, 1960 as an automobile salesman on a
commission basis. He receives a monthly pension of $11.75.
Claimant, John E.
Anderson, obtained work in the weeks ending September 13 and September 20, 1959
as a carpenter’s helper. He has sought odd carpentry jobs continuously. He
receives a monthly pension of $30.
Claimant, Hall, obtained
one day’s work painting windows and doors. He continued to seek work until
sometime in April 1960 when he was hospitalized due to an accident. He receives
a monthly pension of $30.
Claimant, Hitchcock,
worked two weeks in July 1959 picking cherries, during four weeks in September
and October 1959 picking grapes and apples and one week in November on a farm.
This claimant receives a monthly pension of $10.75. Since filing for benefits,
he had diligently sought employment on farms and in factories in both the
Pennsylvania area where he resides and in the adjacent New York areas.
Appeal Board Opinion and
Decision: The referee, in his
decision filed September 17, 1959, disposed of the respective claimants’ cases
as follows: He modified the initial determinations as to all claimants except
Peterson, Maione and Hall, by ruling that such remaining claimants were
eligible for benefits effective July 7,1959 instead of effective June 1, 1959.
As to claimants Peterson, Maione and Hall, the referee sustained the initial
determinations of the local office holding them eligible to receive benefits
effective the respective dates of their filing therefor because they had been
laid off from employment by the employer prior to their attaining the
compulsory retirement age and had manifested their attachment to the labor
market upon filing for benefits following such layoffs. In addition to
modifying the initial determination affecting the claimant Gould by ruling him
eligible for benefits effective July 7, 1959, the referee modified the initial
determination of the local office by holding claimant Gould ineligible for
benefits from July 27 through August 2, 1959 on the ground that he was not
available for employment because he was absent from the area for personal
reasons. Finally, the referee overruled the initial determination of the local
office which held claimant Hitchcock eligible for benefits effective the date
of his filing therefor and ruled that claimant was not available for benefits
because he did not seek work diligently. The referee’s conclusion as to the
claimant Hitchcock was justified by the testimony given by that claimant before
him. However, at the hearing before the Board additional testimony was received
from claimant Hitchcock who established that, not only did he seek work
diligently, but he actually obtained work outside of his job classification for
an appreciable period of time.
The basis of the
referee’s modification, changing the effective date of eligibility from June 1
to July 7, 1959, of all of the claimants involved in his decision filed
September 17,1959 as recited above was that each of such claimants did not
commence to exert efforts to seek employment until after they had been
counseled by the local office to do so.
In his decision filed
February 3, 1960 the referee ruled that claimants Strawberg, Armeli and Raucci,
who reached the compulsory retirement age of 68 after June 1, 1959, and filed
claims for benefits effective October 5, November 2, and November 9, 1959,
became eligible for benefits upon filing therefor because immediately
therewith, they exerted efforts to obtain employment.
The employer appeals
from the decision of the referee filed September 17, 1959 insofar as the
referee ruled that each claimant, except Hitchcock and Gould, was eligible for
benefits effective July 7, 1959 and thereafter. The employer appeals from the
decision of the referee filed February 3, 1960 ruling that claimants Strawberg,
Armeli and Raucci, were eligible for benefits effective the respective dates of
filing therefor on October 5, November 2, and November 9, 1959.
In support of its
appeals, the employer maintains that it was required to bargain collectively
with is employees under the provisions of the National Labor Relations Act and
that pursuant thereto, the pension and retirement plan was effectuated in a
written contract after collective bargaining therefor by the employer and the
union representing all of the claimants herein. The employer contends that the
legal effect of the consummation of this collective bargaining agreement is
that the claimants, through their union representatives, agreed, in advance,
that upon reaching the age of 68 each would voluntarily withdraw
from the labor market and from the employment by the employer. The employer
argues that when the several claimants were released from its employ in
accordance with the provisions of the collective bargaining agreement, they
withdrew from the labor market.
The employer relies
upon Matter of Naylor, 306 N.Y. 794 affirming 281 App. Div. 721, reversing
Appeal Board, 30,727-52, Matter of Rakowski, 276 App. Div. 625,
reversing Appeal Board, 18,773-49, Matter of Gerlach, 284 App. Div.
1081, affirming Appeal Board, 40,803-53, and Matter of Chichipas, 3
App. Div. 2d 880, affirming Appeal Board, UCV217-55. Each of the foregoing
cases involved eligibility during a "vacation period," wherein the
Courts construed the union’s consent to the shutdown of the respective
employers’ plants during a vacation period, as consent in advance by each employee
in the bargaining unit to his temporary withdrawal from the labor market,
notwithstanding that he might not receive any vacation pay during such shutdown
because of the lack of sufficient seniority to qualify for vacation pay.
In each of the cited
cases, there was involved, only a limited withdrawal from the
labor market during a vacation shutdown, while the employer-employee
relationship continued during and after such period. The facts involved in such
cases are markedly different from the facts in the instant case, wherein the
employer contends that there was a permanent withdrawal from the labor market
from the time the employee attained the mandatory retirement age of 68. Here
the compulsory retirement had the effect of completely severing the
employer-employee relationship. Upon such severance the "retired"
employee became eligible to accept immediate employment elsewhere, on a
permanent basis. Unlike the instance of temporary unemployment produced by a
shutdown for vacation purposes, the claimants herein were not due to resume
work for this employer at any subsequent time.
The employer’s
contentions, if accepted, would have the effect of adding to the Unemployment
Insurance Law, basis for ineligibility or disqualification not now included in
the Law. No agreement, even one between a union and an employer can change,
modify or add to the statutory provisions. A claimant’s eligibility for
benefits is spelled out by the provisions of the Law and cannot be bargained
away. Among other requisites to establish eligibility for benefits, a claimant
must prove that he is ready, willing and able to work in his usual employment
or in any other for which he is reasonably fitted by training and experience.
Section 591.2 of the Law so provides. The employer’s contention that all of
these claimants withdrew from the labor market implies that the claimants were
not ready, willing and able to work. We have repeatedly ruled that proof of
readiness, willingness and ability to work may be manifested by diligent
efforts to find work. In these cases, the local office has satisfied itself
that each claimant came within the provisions of the Unemployment Insurance Law
by demonstrating availability for employment. The evidence herein as to some of
these elderly claimants actually obtaining work in a highly competitive labor
market is most significant in proving their availability for work. Moreover,
the employer’s contention that none of the claimants made a bona fide return
to the labor market is negated by the credible and convincing proof adduced
herein which establishes that a number of these claimants obtained subsequent
employment at various trades and occupations after diligent search therefor.
This employer’s rehiring of claimant Nyman to work at a job other than the one
at which he previously worked establishes that the employer recognized that
this claimant had not withdrawn from the labor market.
It is understandable
that these elderly claimants, having worked for a long span of years (Many of
them for this very employer for the major portion of their working lives), did
not know how to go about seeking employment until they received the counseling
which the local office is required to give to elderly workers. See Matter
of Bourne, 282 App. Div. 1, affirming Appeal Board, 31,741-52, where the
Appellate Division, in its interpretation of availability affecting older
workers, said:
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.
It is a matter 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.
In the instant cases, we
find that there were no restrictions which kept claimants "aloof from the
market" and we further find that each claimant was, in fact, ready,
willing and able to work.
To accept the employer’s
contention that the pension and retirement plans must be construed as an
agreement by claimants, through their union, in advance, to withdraw from the
labor market upon reaching the age of 68, would do violence to the purposes of
collective bargaining as they affect rights to unemployment insurance. The
union cannot, by its act, deprive the individual member thereof of rights
granted by social legislation, such as unemployment insurance to which he is
entitled upon satisfying the statutory requirements therefor.
The most that can be
said in the employer’s behalf is that the claimants agreed through their union
to retire from its employ upon reaching 68 years, but the
claimants did not agree in their collective bargaining
agreement to withdraw forever from the labor market.
We hold that these
claimants did not surrender their rights to unemployment insurance by reason of
the provisions of the collective bargaining agreement executed on their behalf
by their union Section 595 of the Unemployment Law provides that a claimant’s
benefit rights are inalienable, that waiver agreements are void, and that no
agreement, by an employee, to waive his rights to unemployment insurance shall
be valid.
Moreover, we hold that
the cases cited by the employer concerning vacation shutdowns are not
controlling herein. Significantly, following the rendition of such decisions,
the Legislature enacted specific legislation concerning vacation periods in
Chapter 387 of the Laws of 1958, effective March 26, 1958. A new subdivision 3
was added to Section 591 of the Unemployment Insurance Law. Paragraph 5(e) of
Section 591.3 provides
Any agreement express or
implied by a claimant or by his union or other representative to a plant or
department shut down for vacation purposes is not of itself to be considered
either a withdrawal by such employee from the labor market during the time of
such vacation shut down or to render him unavailable for employment during the
time of such vacation shut down. (underscoring supplied)
The reasoning underlying
this statutory provision affecting vacation shutdown, pursuant to union
consent, is applicable to the facts in this case. Paraphrasing the portion of
the statute cited, we say that the agreement by claimants or by claimants
union, to compulsory retirement at the age of 68 is not, of itself, to be
considered either a withdrawal by such claimants from the labor market
following their compulsory retirement, or to render them unavailable for
employment following such retirement.
In Campbell Soup
Co. v. Board of Review (100 A (2d) 287), the New Jersey
Supreme Court considered whether a compulsory retirement, pursuant to a union
agreement, was a voluntary leaving of employment without good cause for the
purposes of unemployment insurance. Judge Brennan (now Justice of the United
State Supreme Court) said:
If the inquiry is
isolated to the time of termination, plainly none of the claimants left
voluntarily in the sense that on his own he willed and intended at the time to
leave his job. On the contrary, each claimant resisted his termination and left
against his will only upon his employer’s insistence that the contract
obligation gave neither of them any alternative but to sever the relationship.
* * *
The Legislature plainly
intended that the reach of the subsection was to be limited to separations
where the decision whether to go or to stay lay at the time with the worker
alone and even then, to bar him only if he left his work without good cause.
The claimants here did not choose of their own volition to leave the employ of
Campbell Soup Company when they were separated. They left because they had no
alternative but to submit to the employer’s retirement policy, however that
policy as presently constituted was originated. Their leaving in compliance
with the policy was therefore involuntary for the purposes of the statute.
In Warner Co.
v. Board of Review and Gianfelice, 153 A (2d) 906, the
claimant Gianfelice had been continuously employed by the employer since
January 1, 1918. The collective bargaining agreement between the employer and
claimant’s union provided an employee retirement plan. Under this plan, when an
employee reached the age of 68, he could remain in the service of the company
only with the employer’s consent. The claimant became 68 on January 14, 1956.
Although he wished to continue working for the employer, the employer refused
its consent and he was retired. Both issues of voluntary leaving and availability
were involved. The Pennsylvania Supreme Court, in reversing its Superior Court,
which by a 3-2 decision had denied benefits to the claimant, said:
The major premise of the
Superior Court that an employee is bound by his union’s agreement with his employer
as expressed in a collective bargaining agreement, is unexceptionable on its
face. However, in the present context the Superior Court has used this premise
to disqualify persons for benefits under the Unemployment Compensation Law who
otherwise would be eligible. We do not believe that this result is correct.
Were Gianfelice not
covered by the collective bargaining agreement involved here, the company could
have dismissed him at its pleasure. NLRB v. Jones and
Laughlin Steel Corporation, 301 U.S. 1, 45 (1936); Polk v. Steel
Workers Organizing Committee, 360 Pa. 631, 634, 62 A 2d 850 (1949). Were he
so discharged, however, he would be entitled to unemployment compensation.
Conversely, absent the agreement, Gianfelice could have quit at his pleasure
but would have been ineligible for unemployment benefits as a "voluntary
quit." This latter situation led to a proper denial of benefits in Campbell
Unemployment Compensation Case, 180 Pa. Superior Ct. 74, 117 A. 2d 799
(1955).
Does the fact that a
collective bargaining agreement is present change these considerations under
the Unemployment Compensation Law? Such agreements usually restrict the
employer’s right to dismiss at will until the employee reaches a certain age;
they thus protect the employee from arbitrary dismissal. It would be anomalous
to say that, in gaining this protection against his employer, an
employee has lost a
benefit which he otherwise would receive from the State – the right to receive
unemployment benefits if dismissed – on the theory that he has voluntarily
agreed to quit. The pressures of the collective bargaining process are too
complex to permit this over-simplified theory to govern a determination here.
They would require and inquiry into each case to determine the position of each
side at the bargaining table, and even then a clear cut answer would
undoubtedly not be forthcoming.
This is one reason why
the collective bargaining agreement should not control in determining the
eligibility of a retired employee for unemployment compensation; rather,
the factual matrix at the time of separation should govern. This was the
position taken by Judge (Now Justice) Brennan in Campbell Soup Co.
v. Board of Review, 13 N.J. 431, 100 A 2d 287 (1953) wherein the
New Jersey Supreme Court found the claimant eligible for benefits. Viewed in
this light, the questions here become simply (1) did Gianfelice cease working
voluntarily as a matter of fact, and (2) was Gianfelice available for work
thereafter? Since the answers on the record as (1) no, and (2) yes, Gianfelice
is entitled to benefits.
The Court then pointed
out that similar to our Section 595, the Pennsylvania statute provides that no
agreement by an employee to waive, release, or commute his rights to
compensation or any other rights thereunder shall be valid and concluded that
a statutorily expressed public policy cannot be modified by private
agreement. The opinion continues:
These analogous examples
illustrate the principle we here apply. Where a statute of the Commonwealth
expresses a public policy designed to alleviate a condition of possible
distress among the public or a segment thereof and explicitly
proscribes waiver of the benefits of the act, no private agreement, however
valid between the parties, can operate as such a waiver. The provision of the
agreement under which Gianfelice had to retire, while legitimate conditions of
employment and binding between Gianfelice and the Warner Company, cannot thwart
a clearly expressed state statute under which Gianfelice is entitled to
benefits.
These decisions of the
highest Courts in New Jersey and Pennsylvania, support our conclusions and
reasoning herein. There are no Appeal Board precedents on the precise question
involved herein. However, in a parallel situation, we arrived at a conclusion similar
to that reached here.
In Appeal Board,
64,956-58, claimant had worked as an inspector for her employer for about five
years. She obtained a maternity leave effective July 23, 1957. The contract
between the employer and the union, which was the certified bargaining
representative of the employees, including claimant, provided that maternity
leaves or absences would be granted to women employees who have credited
service with the employer and that such leaves are granted for a period not
less than nine months or not more than one year. Claimant’s baby was born
December 9, 1957. Claimant thereafter requested that she be permitted to return
to work before the expiration of the leave fixed in the union agreement. The
employer refused to accede to her request and indicated it had no objection to
claimant accepting work elsewhere. Claimant did seek work elsewhere following
her filing for benefits on February 3, 1958. The local office ruled her
eligible for benefits without disqualifying conditions. The employer objected
thereto pursuant to the union agreement. The claimant returned to work with the
employer on April 23, 1958 which was the earliest date she could do so under
the union agreement. The period in issue was that between February 3,1958 when
she filed for benefits and her return to work on April 23, 1958. In our opinion
affirming the decision of the referee we said:
* * *
The employer urges that
the union contract is a condition of the employment and that it precludes
claimant’s receipt of unemployment insurance benefits during the period of the
maternity leave. This is not a case of vacation shut-down such as occurred
in Matter of Naylor, 306 N.Y. 794, aff’g. 281 App. Div. 721 rev’g.
appeal Board, 30,727-52. Thus, claimant’s eligibility for benefits must be
determined in the light of the statutory provision that "No benefits shall
be payable to any claimant who is not capable of work or who is not ready,
willing and able to work in his usual employment or in any other for which he
is reasonably fitted by training and experience." (Unemployment Insurance
Law, Section 591.2) This section does not bar the payment of benefits to
claimant. She was capable of working during the period in issue. She was ready
and willing to work in her prior employment, but was prevented from doing so because
the employer would not take her back before the expiration of the leave. She
was ready, willing and able to work in other employment. She was available for
employment.
On appeal, the employer
contends that implicit in the granting of the leave of absence to claimant
under the union contract, was the understanding that claimant would be replaced
on her job. It is argued that by requesting the leave of absence claimant
effected her withdrawal from the labor market for a period of at least nine
months, the minimum period of the leave and that her attempt to return to its
employ prior to the end of her leave was of no avail as it was contrary to the
provisions of the union agreement.
We hold that the referee
was correct. The fallacy of the employer’s argument is that it seeks to
condition claimant’s right to unemployment insurance benefits solely on her
employability with it and no other employer. There is no dispute that claimant
was willing to work elsewhere and that she sought such work. In the absence of
any showing that the bar against working for the employer until April 23, 1958
adversely affected claimant’s availability for employment, the employer’s
objection has no validity.
The right to benefits is
governed by the Unemployment Insurance Law and not by private agreement. To
sustain the employer’s position here would be to violate Section 595 of the Law
wherein it is provided that "no agreement by an employee to waive his
rights…shall be valid." Claimant left her employment with good cause on
July 23, 1957 on maternity leave but withdrew from the labor market. She
returned to the labor market and so certified when she filed for benefits,
February 3, 1958. She met the statutory tests of capability and availability
then and thereafter and was eligible for benefits.
The local office
determination that claimant was eligible for benefits, was correct.
Upon their compulsory
retirement, the claimants herein were awarded company pensions ranging from
$9.50 per month to $30 per month, which is the maximum. While it is immaterial
for unemployment insurance purposes to consider the amount a retired employee
receives pursuant to a company pension plan, the fact that these claimants were
entitled to so little monies upon their retirement must be taken into consideration
in determining whether or not claimants would, in fact, withdraw from the labor
market in reliance upon the monies they would receive under this pension plan.
The answer is obvious. The mere receipt of these meager sums did not convert
claimants’ compulsory retirement into a withdrawal from the
labor market.
We find the employer’s
objections without merit and we hold that the claimants are entitled to
unemployment insurance benefits subject to the modifications herein.
The initial
determinations of the local office holding claimants, Hall, Maione, Peterson,
Hitchcock, Strawberg, Armeli and Raucci eligible to receive benefits, effective
the dates of their respective filings, without disqualifying conditions, are
sustained. The objections of the employer are overruled.
The initial
determinations of the local office holding claimants, Gust Johnson, Gould,
Nyman, Gullotti, Shepard, Falvey, Axel C. Carlson, Albert Carlson, Edstrom,
Jones, Howard, Adolph Anderson, Nelson, Benson, Lowell, John E. Anderson, and
John Anderson eligible to receive benefits, effective dates of their filing,
without disqualifying conditions, are modified to make such determinations,
effective July 7, 1959, and only to the extent of the period from June 1 to
July 6, 1959, the employer’s objections are sustained.
The initial
determination of the local office holding claimant, Gould, ineligible to
receive benefits effective July 27 to August 2, on the ground that he was not
available for employment is sustained.
The employer is not
entitled to the return of its appeal deposits.
The decision of the
referee fled September 17, 1959 as to the claimant Hitchcock is reversed,
otherwise that decision is affirmed and the entire decision is modified
accordingly and as so modified is affirmed. The decision of the referee filed
February 3, 1960 is affirmed. (July 26, 1960)
Index
No. 1505C-2
1540.4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September
15, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
MISREPRESENTATION
Refusal of Employment
Appeal Board Case Number 74,809-60
WILFUL
MISREPRESENTATION, QUESTION OF
Falsely certifying to
the Insurance Office that no employment was refused constitutes a wilful
misrepresentation even though claimant had previously informed the Placement
Office of the refusal.
Referee’s Decision: The initial determination of the local office
holding that claimant wilfully made a false statement to obtain benefits by
reason of which a forfeiture of 24 effective days was imposed as a penalty in
reduction of claimant’s future benefit rights is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a general office clerk, filed a
claim for benefits effective July 13, 1959. Claimant reported regularly
thereafter and certified weekly to total unemployment through the week ending
January 17, 1960. On January 4, 1960 the employment office referred claimant to
employment. At first claimant indicated her willingness to accept the job but
later in the day she telephoned the employment office and advised that she had
decided not to pursue the referral because of the travel time involved. A form
was prepared on January 4 by the employment office setting forth claimant’s
refusal of the employment; the form was forwarded to the local office on
January 29.
Claimant next reported
at the local office following her refusal on January 15, 1960. Claimant was
asked at that time whether she had refused any offer of employment and she
replied in the negative. Claimant was aware that such statement was false. She
did not reveal her refusal of the January 4 offer because she felt that she had
good cause for rejecting the offer on the ground of its location. Claimant
contended further that her statement to that effect given to the employment
office on January 4 was sufficient notice to the local office.
Appeal Board Opinion and
Decision: We do not concur in
the conclusion reached by the referee that claimant did not wilfully make a
false statement to obtain benefits because the Industrial Commissioner, through
the employment office, was in full possession of the information concerning the
refusal and because claimant was justified in her belief that she had made a
full disclosure.
Claimant was under an
obligation to furnish true and correct information to the local office. On
January 15, 1960 she knowingly gave false information to such office in
connection with her claim. Claimant’s previous notification of her refusal made
to the employment office does not excuse the false statement at the insurance
office, which statement resulted in the payment to her of benefits to which she
was not entitled (Appeal Board, 53,475-55). Claimant thus wilfully made a false
statement to obtain benefits.
The initial
determination of the local office holding that claimant wilfully made a false
statement to obtain benefits by reason of which a forfeiture of 24 effective
days was imposed as a penalty in reduction of claimant’s future benefit rights,
is sustained. The decision of the referee, insofar as appealed from, is
reversed. (August 30, 1960)
COMMENTS
This case should be
differentiated from cases where an entry in the identification booklet, which
the claimant presented, reflects the referral to the job. (A.B. #73,553-60;
Serial A-750-1512 (revised)).
In the instant case, the
claimant did not submit to the Insurance Office an identification booklet with
such an entry. Thus, the Insurance Office was not furnished any information,
except the claimant’s oral statement which was false. In the other case it can
be said the claimant furnished conflicting information, one false and one
correct, and the Insurance Office had the opportunity to resolve that conflict.
Failing to have done so, the false statement cannot be seized upon to impose a
forfeiture penalty.
Index
No. 1715-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
October
11, 1960
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Attendance at School or Training Course
Appeal Board Case Number 75,953-60
VOLUNTARY LEAVING EMPLOYMENT TO ATTEND SCHOOL
Leaving employment to
enter college or school or to otherwise improve one’s education is without good
cause within the meaning of the Unemployment Insurance Law.
Referee’s Decision: The referee overruled the initial
determination of the Out-of-State Resident Office disqualifying claimant from
receiving benefits for 42 consecutive calendar days effective March 31, 1960,
on the ground that he voluntarily left his employment without good cause.
Appealed By: Industrial Commissioner
Findings of Fact: We have reviewed the evidence adduced before
the referee and find that the following findings of fact made by the referee
are amply supported by the evidence and are hereby adopted as the findings of
fact of the Board:
* * *
Claimant,
classified as a spray painter, filed effective April 11, 1960, in Santurce,
Puerto Rico. By determination effective March 31 he was disqualified from
receiving benefits for 42 consecutive calendar days because of voluntary
leaving of employment without good cause.
Claimant
last worked in his customary occupation for a New York employer from February
1958 through March 30, 1960, when he voluntarily left available work to return
to Puerto Rico for the purpose of receiving religious training.
Claimant
is a believer in a new religious creed founded in Puerto Rico. He was required
to return to Puerto Rico if he desired to receive training because there is no
available school in New York. Upon arriving in Puerto Rico, claimant commenced
his training to become a preacher.
Appeal Board Decision
and Opinion: Although we have
adopted the findings of fact of the referee, we do not agree with the
conclusion reached by him based thereon that claimant left his employment
voluntarily with good cause. We have consistently held that the leaving of
employment to enter college or school or to otherwise improve one’s education
is without good cause within the meaning of the Unemployment Insurance Law (UCV-322-58;
UCV-276-57; Appeal Board, 30,538-52 and Appeal Board, 44,915-54). Consequently,
notwithstanding that claimant’s purpose in returning to Puerto Rico may have
been commendable, he was not provided with good cause to leave his job. The
initial determination of the Out-of-State Resident Office disqualifying
claimant from receiving benefits for 42 consecutive calendar days effective
March 31, 1960, on the ground that he voluntarily left his employment without
good cause, is sustained. The decision of the referee is reversed. (September
22, 1960)
COMMENTS
This decision makes it
quite clear that as a general principle a claimant who leaves employment to
enter school does so without good cause. Some exceptions in the past and
reported in the Interpretation Service – leaving to undertake a national
defense course; veterans who upon discharge enter a school under the
Readjustment program – are now largely a historical interest only.
Index
No. 780A.1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
January
19, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
At Time of Unavailability
Appeal Board Case Number 77,331-60
REFUSAL DISQUALIFICATION NOTWITHSTANDING UNAVAILABILITY EFFECTIVE
PRIOR THERETO
An unavailability
disqualification for self-imposed non-compelling reasons does not preclude the
imposition of an additional disqualification for refusal of employment even if
the unavailability predates the refusal.
Appeal Board Decision
This is an application
by the Industrial Commissioner, pursuant to Section 534 of the Unemployment
Insurance Law, to reopen and reconsider the Board’s decision dated October 24,
1960 and filed in the Department of Labor on November 1, 1960 (Appeal Board,
76,101-60), which modified the decision of the referee filed August 17, 1960
sustaining the initial determination of the local office disqualifying claimant
from receiving benefits effective June 20, 1960 and on the ground that without
good cause she refused employment for which she is reasonably fitted by
training and experience.
Findings of Fact: Claimant filed for benefits effective April
11, 1960. Her work history was as follows: For about 15 years she worked as a
packer in a candy factory in Hoboken, New Jersey. Her terminal earnings were
about $80 per week, on a piecework basis. She decided to give up factory work
for reasons of health. She then worked for about five and one-half years in the
auditing department of a department store. Performing clerical work. She earned
$60 per week for a 40-hour week. Claimant is single. She lives with her married
sister. When her sister moved from New York City to Mount Vernon, claimant was
compelled to change her residence also. After commuting from Mount Vernon to
Manhattan for several months, her employer released her.
On June 2, 160, claimant
was offered employment as a laborer doing assembling work in a greeting card
establishment in White Plains. The job paid $1.30 per hour, as in her last
employment. Finally, she objected to the cost of transportation which was 84
cents per day. Claimant has been and is under medical care for conditions
attending a change in life and for a nervous condition.
The evidence at the
Board hearing, established that claimant’s physician had advised her to avoid
factory work, because it had an adverse affect upon her health and increased
her nervousness and tension. Claimant relied upon the advice of her physician
and therefore preferred to continue office work. However, she did little to
seek such employment in Mount Vernon. She preferred not to seek employment in
other areas in Westchester because she was a stranger there. Moreover, she imposed
a restriction of a minimum of $60 per week for clerical work in Mount Vernon.
The prevailing wages for such work in Mount Vernon are substantially less than
$60 per week. Through the employment service, claimant obtained employment on
November 27, 1960 as a sales clerk in a department store in Yonkers at $1.10
per hour. However, after one days’ employment she was unable to resume work
because of illness
Appeal Board Decision
and Opinion: In our original
decision (Appeal Board, 76,101-60), we concluded that because claimant was not
available for employment from a date prior to her refusal of the job offered to
her, she should not be charged with an additional disqualification for refusal
of employment without good cause. We therefore modified the referee’s decision
by sustaining the initial determination of unavailability and overruling the
disqualification for refusal of employment without good cause. We cited Appeal
Board, 54,519-56 in support of our position.
The basis of the
application by the Industrial Commissioner to reopen and reconsider the Board’s
decision is that it was not consistent with precedents of the Appeal Board on
the subjects involved.
We believe there is
merit to the Commissioner’s contentions. In Appeal Board, 54,519-56 the
claimant was a part-time worker who, because of the need for caring for her
children, could not commence work before 9:30 a.m. She refused an offer of
employment which required her to report to the employer at 9:00 a.m. We
modified the initial determination there disqualifying claimant from receiving
benefits on the ground that she had refused employment without good cause by
holding that the proper determination was that claimant was not available for
employment, effective the date of the refusal of employment. This cited case is
distinguishable from the present case as will be developed below.
Appeal Board, 72,033-59
is directly in point here. There the claimant refused an offer of employment
without good cause. The local office issued two initial determinations on the
two separate grounds of unavailability and refusal of employment both effective
the date of refusal of employment. We held that claimant’s unavailability
stemmed from conditions which were self-imposed in connection
with her job-seeking efforts and wage demands. We concluded that under such
circumstances, the paramount issue was that of refusal of employment,
notwithstanding that the disqualification therefor was made effective
simultaneously with the ruling of unavailability.
In an instance where a
claimant refuses employment for reasons which indicate unavailability for
employment, it is necessary first to examine the facts which produce the
condition of unavailability, irrespective of whether a ruling of ineligibility
is made effective the date of the refusal or prior thereto. If, as in Appeal
Board, 54,519-56, the unavailability arises because of compelling domestic or
personal circumstances then, availability is the paramount issue and the
refusal of employment provides further evidence of such unavailability.
However, a claimant who
refuses employment without good cause may not avoid the disqualification
provided for in Section 593.2 of the Law for refusal, merely because the
claimant has produced her unavailability by conditions self-imposed by her in
connection with seeking and obtaining employment.
Where the unavailability
is caused by compelling domestic or personal circumstances, there is a
situation over which the claimant may not have complete control. Such claimant
may be willing to work in the normal labor market but is
not ready or able to work because of such domestic or personal
circumstances. Such claimant remains unavailable until the situation which
caused her inability to work is cured. But, a claimant who renders herself
unavailable by imposing conditions or restrictions, which prevent her obtaining
employment cannot with impunity refuse an offer of employment which meets the
statutory requirements. Such claimant has control of the situation which
produces her unavailability. If it served her purpose, she could avoid work by
imposing conditions to produce her unavailability whenever suitable work was
offered and then re-establish eligibility for benefits by removing the
conditions at times when no specific offers are made. The statute permits no
such manipulation. The clear mandate of the statute is that one who refuses
employment without good cause shall be disqualified until he meets the specific
conditions of subsequent employment set forth in the Law. It is not
contemplated that one who refuses suitable employment solely because the offer
does not meet his self-imposed, unrealistic or unreasonable conditions shall be
eligible to reinstate his claim without the required subsequent employment.
In the instant case, the
record clearly establishes that claimant was not available for employment
because of the self-imposed restrictions which we regard as unrealistic and
unreasonable. This status of unavailability continued from June 20, 1970 until
claimant removed her restrictions as to wages and location of employment as
evidenced by her acceptance of a job as a sales clerk in Yonkers at $1.10 an
hour.
Now, in view of the
circumstances which produced claimant’s unavailability, it becomes necessary to
determine whether claimant refused employment without good cause. Since
claimant left factory work because it had an adverse affect upon her health,
and the proof indicates that claimant had received competent medical advice to
avoid such work, she had good cause to refuse the offered job. Moreover, the
offered work was not similar to claimant’s substantial employment of five and
one-half years as a clerical worker. Therefore, we hold that this was not a
suitable job offer in the light of claimant’s work history and because of
claimant’s physical condition. Under all of the circumstances herein, claimant
had good cause to refuse the offer of employment.
The application of the
Industrial Commissioner is granted and the decision rendered in Appeal Board,
76,101-60 is rescinded.
The initial
determination of the local office holding claimant ineligible to receive
benefits on the ground that she was not available for employment effective June
20, 1960 is sustained. The ineligibility continued until claimant removed her
restrictions as evidenced by her accepting employment on November 2, 1960.
The initial
determination of the local office disqualifying claimant from receiving
benefits on the ground that without good cause she refused employment for which
she is reasonably fitted by training and experience is overruled. The decision
of the referee is modified accordingly. (December 21, 1960)
COMMENTS
- This decision is important. It changes concepts
regarding refusal disqualifications during unavailability non-compelling
reasons. Previously a refusal disqualification was not made while a prior unavailability
determination was still in effect on the date of the refusal.
There
is no change from prior practices of issuing two primary disqualifications,
unavailability and refusal, when both disqualifications are effective the same
day.
This
decision, therefore, clarifies the following two points:
a. It
is proper to impose, effective simultaneously, two primary disqualifications
one for refusal and another for unavailability when the unavailability results
from non-compelling reasons.
b. A
disqualification for refusal of employment is proper under such circumstances,
even though the unavailability determination is effective prior to the date of
the refusal.
The
new principle reflected in this release renders obsolete special bulletin File
No. A-710-40.
- There is no change if the unavailability results from
compelling reasons. No disqualification can be imposed for a refusal even
if it occurs on the first day of unavailability.
Index
No. 1195-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February
6, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
MISCONDUCT
Criminal Acts
Appeal Board Case Number 76,294-60
QUESTION OF FELONY; EFFECT OF SIGNED STATEMENT IN LOCAL OFFICE
A document prepared by a
claims examiner and signed by a claimant in connection with his claim for
benefits does not represent a signed "statement admitting that he
(claimant) has committed" a felony within the requirement of Subdivision
four of Section 593 of the law, and a disqualification as provided in that
subdivision can, therefore, not be imposed on the basis of such document.
Referee’s Decision: The referee overruled the initial
determination of the local office disqualifying claimant from receiving
benefits for a period of 12 months effective May 27, 1960, on the ground that
he lost his employment as a result of an act constituting a felony in connection
with his employment.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant was employed as a butcher in a
meat-packing plant for about 18 months until he was discharged on May 26, 1960.
On the day mentioned, some of his fellow workers were making sport of claimant
and ridiculing him. He pleaded that they stop teasing him. When they refused to
do so, claimant, who was then holding a butcher’s steel hone, became enraged
and struck one of his fellow workers with the tool. The co-worker who received
the blow suffered a cut on his chin, which required sutures. No criminal
charges were preferred against claimant by reason of the aforesaid incident.
Claimant filed a claim
for benefits effective May 30, 1960. On June 15, 1960, he signed the following
statement at the local office with respect to the circumstances under which his
employment was terminated:
The
Boss fired me 5/26/60 because I was fighting with another man. This man would
always called (sic) me names. I had warned him a number of times to stop before
I lost my temper. And the foreman warned us about this. The last day this man
(the other worker) started calling me names again. I got angry and I hit him on
his face. The foreman heard the commotion, told the boss and he fired me. He
did not fire the other man. On 5/31 I put in a complaint to the union – Frank
the delegate. I worked there 16 months and never had any arguments before. I
hit the man with a steel knife sharpener and he hurt his chin. He was sent to
the hospital. The police were called.
The local office
construed the above statement as a signed statement by claimant admitting that
he had committed a felony.
Appeal Board Opinion and
Decision: The referee overruled
the initial determination on the theory that the statement signed by claimant
did not contain an admission of all of the elements necessary to establish the
commission of felonious assault. While we are in accord with the result at which
the referee arrived, we do not accept this reasoning.
The question which is
here presented is whether a statement prepared by a local office
representative, and signed by the claimant, purporting to contain a summary of
an insurance interview, with respect to the circumstances surrounding the
termination of the employment, is sufficient to subject claimant to the drastic
penalty of denying benefits for an entire year. We think not.
As the referee pointed
out in his decision, the Governor, in approving the enactment of Section 593.4
of the Law, explained its purpose by stating that:
(4
"provides that a convicted or admitted felon who has lost his employment
as a result of a job connected act constituting a felony shall not receive
unemployment benefits" (McKinneys’ Session Laws, (1960) page 2040).
In our view, a claimant
who has neither been indicted nor convicted should not be characterized as a
"felon" solely on the basis of a statement signed by him in
connection with his claim for benefits, particularly since there is no
provision for, according to the claimant, the usual constitutional safeguards
against self-incrimination. To hold otherwise would imply that the Legislature
contemplated that unemployment insurance claims examiners who are authorized to
issue initial determinations, should be charged with the responsibility of
indictment. We believe that such was not the intention of the Legislature and
that it was not contemplated that those charged with the responsibility of
administering the Unemployment Insurance Law or adjudicating disputes arising
thereunder should pass judgment with respect to whether an applicant’s recital
of the circumstances surrounding the termination of his employment contains all
of the various elements necessary to sustain a charge of a felony under the
Penal Law of this State or of any other state in which the claimant may have
been employed. The difficulty of determining whether a particular statement is
sufficient to establish the commission of a felony as distinguished from
another degree of the same crime, which would be merely a misdemeanor,
emphasizes the conclusion at which we have arrived.
The initial
determination disqualifying claimant from receiving benefits for 12 months
effective May 27, 1960, on the ground that he lost his employment as a result
of an act constituting a felony in connection with his employment, is
overruled. The decision of the referee, insofar as appealed from, is affirmed.
(December 16, 1960)
COMMENTS
The rule should be
strictly limited to admissions in a "Summary of Insurance Interview"
or other document prepared by a Division staff member. The decision does not
necessarily hold that other signed statements made by a claimant cannot be considered.
It follows that, if the claimant has neither been convicted nor indicted and
the Summary of Insurance Interviews the only "admission," the case
need not be referred for advice whether the disqualification applies.
Index
No. 1605C-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March
1, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Last Employment, Question of
Appeal Board Case Number 77,075-60
VOLUNTARY LEAVING WITHOUT GOOD CAUSE ONE OF TWO SIMULTANEOUS
EMPLOYMENTS
Claimant is subject to
disqualification when she leaves employment without good cause (to avail
herself of pension rights) even though she continued to work at a part-time job
two or three nights a week since, under such circumstances, the part-time
employment was not her last "terminated" employment for the purpose
of a voluntary leaving disqualification.
Referee’s Decision: The referee overruled the initial
determination of the local office disqualifying claimant from receiving
benefits effective May 23, 1960 on the ground that she voluntarily left her
employment without good cause.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, 63 years of age, filed a claim for
benefits effective June 13, 1960. She was employed full-time for 36 years until
April 29, 1960 as a switchboard operator. For the last 15 years, she had a
second job at which she worked two nights a week. On April 29, 1960, claimant
voluntarily retired from her full-time employment because she found that her
duties had become too difficult. She filed a claim for and is receiving social
security benefits. Claimant continued to work at her part-time job for two or
three nights a week.
Appeal Board Opinion and
Decision: The referee concluded
that claimant did not voluntarily leave her last employment because she had
other employment (the part-time job) before filing for benefits. However, he
concluded, claimant’s leaving her full-time employment to retire indicated a
withdrawal from the labor market. We are not in accord with the referee’s
disposition of this case.
We have held that a
claimant has good cause to leave his employment in order to retire and avail
himself of his pension rights or of his social security benefits. However, as
we pointed out in Appeal Board, 61,891-57:
* * *
where a claimant has not withdrawn fully from the labor market, but has left
his job to collect social security benefit or to protect his pension rights and
is willing to accept employment which will not jeopardize his rights to such
benefits we have held that such leaving of employment was without good cause.
Here, claimant has filed
a claim for benefits and indicated that she is available for employment. She
has also continued to work at the part-time job subsequent to leaving her
full-time employment, all of which may be construed as some proof of claimant’s
availability for employment. Accordingly, claimant has not fully withdrawn from
the labor market. Under these circumstances and in accordance with our prior
rulings, we hold that claimant’s leaving of the full-time employment was
without good cause.
The initial
determination of the local office disqualifying claimant from receiving
benefits effective May 23, 1960 on the ground that she voluntarily left her
employment without good cause is sustained. The decision of the referee is
reversed. (January 27, 1961)
COMMENTS
In cases covered by this
principle a question is presented as to whether the continuing part-time
employment may be used in determining whether claimant "has subsequently
worked in employment of not less than three days in each of four weeks or
earned remuneration of at least two hundred dollars" (Section 593.1). As a
matter of policy it has been decided that such continuing work is the type of
employment that may be used in terminating the disqualification within the
meaning of the law.
Index
No. 1260F-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April
13, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Part-time, Offer of
Matter of Scranton, 12 NY 2d 983
PART-TIME WORK YIELDING LESS THAN BENEFIT RATE
Refusal of part-time
employment (18 hours) spread over a four-day period in a statutory week is with
good cause when claimant’s earnings for such work is less than the benefit rate
to which he is entitled for a full statutory week of unemployment.
Appeal Board Decision Case No. 79,057-61
On January 10, 1961, the
Board rendered a decision reversing the decision of the referee, which
overruled the initial determination of the local office disqualifying claimant
from receiving benefits effective August 8, 1960, on the ground that without
good cause she refused employment for which she is reasonably fitted by
training and experience. The decision of the Board was filed in the Department
of Labor on January 17, 1960. (Appeal Board, 76,952-60).
Thereafter the Board, on
its own motion, determined to reopen and reconsider its decision pursuant to
the provisions of Section 534 of the Labor Law. The Board considered written
statements submitted by the claimant and by the Industrial Commissioner.
Findings of Fact. Claimant, a claims clerk, had worked full-time
for the Division of Employment from February 17, 1958 to May 18, 1960 in a
temporary position. Her final salary was $3,780 per annum. She was released
because of a reduction in staff.
Claimant filed a claim
for benefits effective May 16, 1960. On August 8, 1960, claimant was offered
re-employment on a part-time basis for the same work at $2.11 per hour, for 18
hours a week. She was to work four and one-half hours on each of four days and
could select morning or afternoon work. Claimant refused the offered
employment. Several other claims clerks were recalled for part-time work in
addition to claimant.
Claimant’s net pay for
18 hours of work would have been less than her benefit rate of $35 per week.
Appeal Board Decision
and Opinion: In our original
decision, we reversed the decision of the referee on the authority of Matter
of Krieger, 279 App. Div. 681, reversing Appeal Board, 25,001-50. In that
case and in Matter of Gadd, 278 App. Div. 1035, reversing Appeal
Board, 23,389-50, it was held that refusal of part-time employment solely
because of a desire for full-time work is without good cause. In each of such
cases, however, the employment offered would have enabled the claimants to
accumulate credit for partial unemployment benefits. Accordingly, in Matter
of Krieger, supra, the Court adverted to the provisions for
partial benefits.
Upon further review of
the matter, we are satisfied that the facts in the instant case, are
distinguishable from each of the foregoing cases in that here, claimant could
not qualify for any partial unemployment benefits. By working for part of each
of four days in a week, claimant could not accumulate any effective days and,
therefore, her earnings from the part-time employment would not be supplemented
by any unemployment compensation. Moreover, in the absence of any partial
benefits, acceptance of the offered employment would result in the receipt by
claimant of less money than she would have received if she were totally
unemployed. In view thereof, that which we said in Appeal Board, 69,000-59 is
here applicable. In that case we held that a claimant had good cause to leave
part-time employment which, even when supplemented by partial unemployment
insurance benefits, would result in a total weekly income in an amount less
than his benefit rate. In so holding, we said:
* * *
Of
course, not everyone may, with impunity, quit a job because it is part-time
work. Due notice must be taken of the provisions of the Law for partial
benefits. (See Matter of Krieger, (supra), but this
claimant’s part-time employment, even when supplemented by partial benefits,
was not enough to maintain him. He realized less money while keeping his job
that he would have received if totally unemployed. In this connection it is
noteworthy that in Connecticut the Law provides that:
. .
.work or self-employment shall not be deemed suitable unless the administrator
finds that it may reasonably be expected to yield remuneration at a rate
greater than the individual’s benefit rate for total unemployment. . . (General
Statutes Section 7508(1)).
The
absence of such a statute in this State does not require disqualification. In
appeal Board, 10,242-43, the Board discussed what is now Section 593.2(d) of
the Law. This section provides that wages substantially below prevailing
furnish good cause for refusing work. The Board called the section "a
shield against the unreasonable disqualification of benefit claimants,"
and quoted with approval from the Social Security Year Book, 1940, Page 42,
issued by the U.S. Social Security Board as follows:
. .
.It marks an area within which claimant is protected from disqualification and
does not operate to disqualify a worker who finds himself beyond its
boundaries. Even though a worker cannot find refuge within that area, a
tribunal must consider all other relevant factors in determining whether the
work refused is suitable work, if, for example, the question is whether the
wages are so low as to make the work unsuitable for the claimant, the fact that
the rate offered may not be below the rate prevailing for similar work in the
locality is not necessarily conclusive against the claimant; there is still a
duty upon the tribunal to determine whether other factors, such as the
difference between claimant’s prior earnings and the wage offered, caused the
work to be unsuitable for the claimant.
In
Appeal Board, 60,566-57, a claimant whose hours were cut so that her earnings
were reduced to $40-a-week take-home pay was held to have quit with good cause.
The Board said:
To
have remained in the employment for an indefinite period would have resulted in
extreme hardship. The employment was unsuitable for claimant in view of her
normal earning capacity, current living expenses and obligations, and history
of full-time employment. (See Appeal Board, 65,489-58)
In
the instant case, for claimant to have remained in his part-time employment
would have resulted in extreme hardship to him in view of his earning capacity,
expenses and obligations and history of full-time employment. It was no longer
suitable employment. . .
* * *
We recognize the fact
that the intent of the unemployment Insurance Law is to assure that involuntarily unemployed
workers will receive a weekly amount commensurate with their average weekly
earnings (Section 590.7). It is apparent that the Legislature recognized that
the benefit rates established by Law represent the minimum amounts required to
effectuate the purposes for which the Law was enacted. Thus, to disqualify a
person from receiving benefits because of his refusal to accept employment
which would result in a diminution of the amount which has been established as
his minimum requirements, would serve to defeat the purposes of the Law.
Upon our reconsideration
of the facts and circumstances herein, we conclude that, for the reasons set
forth above, claimant had good cause to refuse the offer of part-time
employment.
The decision of the
Board dated January 10, 1961 (Appeal Board, 76,952-60), is rescinded.
The initial
determination of the local office disqualifying claimant from receiving
benefits effective August 8, 1960, on the ground that without good cause she
refused employment for which she is reasonably fitted by training and
experience is overruled. The decision of the referee is affirmed. (March 16,
1961)
COMMENTS
- In some instances the offered part-time employment may
be for less than 4 days a week in which event claimant may be entitled to
a partial benefit payment. In such cases, if claimant’s potential partial
benefit payment and part-time earnings exceed his weekly benefit rate, a
refusal of the part-time employment under this principle is without good
cause.
Index
No. 1690-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April
13, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Pension or Retirement
Appeal Board Case Number 78,477-61
ELECTION TO RETIRE IN ORDER NOT TOFORFEIT SUBSTANTIAL RIGHTS
An elderly claimant, who
exercises an option to retire so that he does not forfeit substantial benefits
in life insurance arrangements, leaves with god cause when continuance on the
job would result in a substantial financial sacrifice to him and would
drastically reduce the protection afforded to his family.
Referee’s Decision: The referee overruled the initial
determination of the local office disqualifying claimant from receiving
benefits effective September 1, 1960, on the ground that claimant voluntarily
left his employment without good cause.
Appealed By: Employer
Findings of Fact: Claimant worked as a general warehouseman for
a large chain of grocery stores from July 1, 1939 to August 31, 1960. His final
pay was $102.40 per week.
Under the employer’s
employment practices, claimant was eligible to retire as of September 1, 1959,
as of which date, he had reached his 65th birthday. Claimant
was then asked by his employer if he desired to continue to work for another
year. Claimant elected to remain in employment with the provision that he could
retire on the first day of any month during the ensuing year. On February 9,
1960, the employer requested claimant to postpone his retirement from September
1, 1960 to September 1, 1961. Claimant then elected to retire as of August 31,
1960.
Claimant made this
election for a very compelling and economic reason. Prior to September 1, 1960,
the life insurance arrangements affecting the claimant were as follows. He was
covered by a $5000 policy under group insurance. Claimant paid for this
insurance at a group rate, which was $3 per month. In addition, claimant had
the protection of a $2000 life insurance policy for which the employer paid the
premium in full and without contribution from the claimant.
Effective September 1,
1960, the insurance arrangements were changed by the employer drastically. From
that date on, claimant would have lost the benefit of the $5000 policy under
the group rate but would have been permitted to convert it to an individual
premium rate at age 66. Furthermore, the $2000 life insurance protection
furnished by the employer was reduced to a $1500 death benefit. The employer’s
representative conceded that the cost of converting the $5000 policy from a
group rate to an individual rate would have been prohibitive at claimant’s age.
In summary, if claimant retired before September 1, 1960, he would have the
benefit of $7000 worth of life insurance, out of which sum he would receive the
protection of $2000 worth of insurance without payment of any premium and would
have the further protection of a $5000 policy at a very low group rate. Had he
continued to work after August 31, 1960, and then lost his employment by
discharge or otherwise, his insurance protection might have been reduced by as
much as $5500 because he would then only be entitled to the protection of the
reduced policy amount of $1500.
Under these
circumstances, claimant decided to retire as of August 31, 1960. He thereupon
became entitled to a monthly pension of $34.69, out of which $3 was deducted
each month to pay for the group insurance on the $5000 policy. Claimant also
applied for old age benefits and is entitled to $119 per month. When
interviewed at the local office, he evidenced a willingness to forego the
social security benefits if he obtained a full-time job. After filing for
benefits, effective September 19, 1960, claimant diligently sought employment.
No issue has been raised by the local office, the employer or the Industrial
Commissioner on appeal that claimant was not available for employment.
Appeal Board Opinion and
Decision: The referee in
overruling the initial determination disqualifying claimant from receiving
benefits because he voluntarily left his employment concluded that claimant had
good cause to leave his employment. The referee reasoned that by remaining with
this employer, claimant would have forfeited substantial benefits in the
protection afforded him by the life insurance arrangements. The referee further
held that in view of claimant’s advanced age, the relinquishment of his rights
to such substantial insurance protection would have worked a great hardship on
him and that the continuation of the full insurance coverage after leaving the
job would have necessitated a substantial and excessive outlay of premiums. We
concur with the decision of the referee on these specific ground and we add the
following:
Claimant indicated
clearly that he wanted to work by not exercising his option to retire at the
age of 65. He continued to work beyond that age for a year and only left his
employment when to continue therein would have resulted in a substantial
financial sacrifice to him and would have drastically reduced the protection
afforded to his family.
We observed in many
decisions that Section 593.1(a) does not spell out in detail what constitutes
good cause to voluntarily leave employment. It is, therefore, our
responsibility to interpret and construe the legislative intent by considering
each case on its own facts to determine whether or not good cause exists.
Thus in Appeal Board
69,980-59 we held that a claimant had good cause to refuse employment which
would have broken her record of continuous employment in establishments under
the jurisdiction of her local union and would therefore have prevented her from
availing herself of the benefits of the retirement plan of her local union five
months later and would have required additional employment for two more years.
Our reasoning in the
aforesaid case applies to the facts herein. Also see Appeal Board 60,566-57 and
75,489-59, wherein we held that leaving of employment was with good cause when
the situations resulted in a drastic reduction in earnings to amounts which did
not constitute a living wage.
We, therefore, conclude
that claimant had good cause to leave his employment when he did, because
continuation therein would have worked extreme hardship on claimant to the
detriment of himself and his family.
The initial
determination of the local office disqualifying claimant from receiving
benefits effective September 1, 1960, on the ground that he voluntarily left
his employment without good cause is overruled. The decision of the referee is
affirmed. (March 8, 1961)
Index
1460G-3
NEW
YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
May 4, 1961
Interpretation
Section- Benefit Claims
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without work Work- Other
Appeal Board Case Number 78,848-61
RECEIPT OF PAYMENT FOR "SHAPING-UP" OR
"STANDING-BY"
A claimant who does not
render actual services is totally unemployed although he receives
"shape-up pay" or "stand-by pay" for reporting or standing
by at the employer's premises for possible work assignment.
Referee's Finding of
Fact: A hearing was held
at which claimant and representatives of the Industrial Commissioner appeared
and testified. Claimant, a cement mixer, refiled a claim effective October 17,
1960. By initial determination he was ruled ineligible for the day October 19
because of lack of total unemployment and his rights to future benefits were
reduced by 20 effective days because of wilful false statements to obtain
benefits.
Claimant is a member of
a labor union. In employment subject to the union agreement claimant receives
$3.50 an hour or $28 for eight hour day, and paid at time and a half rate for
overtime work. In addition thereto, the agreement provides for a shape-up and
stand-by payment in the event claimant is called for work in the morning but is
not assigned to any work. In the latter event, he receives $5.25 for standing
by. On October 19, claimant was requested to stand by. On October 21, he worked
a full day plus two and a half hours overtime. On October 26, claimant mailed a
certification for benefits for the week ending October 23, and therein stated
he had only worked on Friday, October 21, and that his earnings for that entire
week were $33. He received his wage check on October 27. His earnings for the
week ending October 23 were $46.38. Claimant did not look at the wage check and
turned it over to his wife without knowing what his earnings were for that
week. He forgot the stand by wage for October 19 when he made the certification
and that he estimated his earnings to be $33 for the one day he certified that
he had been employed in that week. When interviewed at the insurance office on
November 10, claimant again contended that he had only worked on October 21 in
the week ending October 23 and that he had earned about $33 for the day.
However, later that day after claimant had called the employer, he communicated
with the insurance examiner and conceded that he earned over $46 in that week.
Referee's Opinion and
Decision: Claimant was not
employed on October 19, 1960, and the stand by payment to him for that day did
not constitute remuneration for employment. Appeal Board, 60-159-57, 58,936-57,
58,053-56. Therefore, claimant did not make a wilful false statement to obtain
benefits. The initial determinations are overruled.
Appealed By: Industrial Commissioner.
Appeal Board Opinion and
Decision: After a review of the
record including 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 opinion are fully supported by the record, and that no
errors of fact or law appear to have been made, the Board adopts the findings
of fact and the opinion of the referee as the finding of fact and the opinion
of the Board. The decision of the referee is unanimously affirmed. (March 23,
1961)
COMMENTS
The
principle as reflected in this decision applies to cases where a claimant
"shapes up" at the employer's establishment or "stands by"
for a limited length of time for possible work assignment and receives a
payment which does not exceed a few hours wages. It does not apply to other
situations such as, for instance, the case of an actor who is engaged as an
understudy, receiving therefor a stipulated amount of money, and who
"stands by" without rendering actual services.
Index
1010-5
NEW
YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
May 10, 19661
Interpretation
Service-Benefit Claims
HEARINGS AND APPEALS
Hearing, Right to
Appeal Board Case Number 79,949-61
TIMELY APPEAL, QUESTION OF-EMPLOYERS OBJECTIONS TO LOCAL OFFICE
DETERMINATION AS A RESULT OF RECEIPT OF FORM IA 96
An employer who failed
to request a timely hearing upon receipt of the original local office
determination allowing benefits, is not entitled to a hearing on the same issue
upon receipt of a determination in the form of a Notice of Experience Rating
Charges (Form IA 96)
Appeal Board Decision
This is an application
by the employer herein, pursuant to Section 534 of the Unemployment Insurance
Law, to reopen and reconsider the Board's decision filed in the Department of
Labor on February 15, 1961, affirming the decision of the referee filed in the
Department of Labor on December 2, 1960, ruling that an initial determination
holding that claimant was eligible to receive benefits without disqualifying
conditions remained in effect because of the employer's failure to make a
timely protest thereto (Appeal Board, 78,037-60).
On March 31, 1961, the
employer made its application herein and in connection therewith the Board
considered the reasons advanced by the employer in support of its application
and a memorandum submitted in behalf of the Industrial Commissioner and after
deliberation, the Board determined to grant the application of the employer for
a reopening and reconsideration of its decision in Appeal Board, 78-037-60.
Findings of Fact: claimant, a punch press operator, refiled for
benefits effective July 4, 1960 after having been separated from his employment
by the employer herein. The insurance office representatives inquired into the
facts and circumstances surrounding the termination of such employment and in
connection therewith, the employer notified the insurance office
representatives that it had discharged the claimant "because of high rate
of absenteeism." The insurance office representatives were satisfied,
after investigation of facts, that claimant's absences were due to compelling
circumstances and that claimant did not deliberately provoke his discharge.
Accordingly, on August 4, 1960 an initial determination was issued holding that
the claimant was eligible to receive benefits without disqualifying conditions.
On the date of the issuance of such initial determination, a notice of the
issuance thereof was mailed to the employer herein. Endorsed on such notice to
the employer was a statement that "the evidence submitted fails to show
that the claimant by any wilful act provoked his discharge." The employer
gave no indication of any disagreement with the aforesaid initial determination
within the period of 30 days from the date notice of the issuance thereof was
mailed to it. Accordingly, benefits were paid to the claimant and, upon the
issuance of benefit checks to the claimant, notices of the charges to the
employer's account were mailed to it.
On September 23, 1960,
the employer received a notice of a charge against its account for the benefits
paid claimant. Thereafter, on October 12, 1960, the employer protested the
charge and, for the first time, indicated disagreement with the initial
determination holding that claimant was eligible for benefits without
disqualifying conditions. It contended that claimant should have been
disqualified for having voluntarily left his employment by provoking his discharge.
It further contended that it had failed to request a referee's hearing within
30 days following the mailing of the notice of the initial determination on
August 4, 1960 due to "reasons which were strictly clerical in
nature."
OPINION: The referee held that the initial
determination of eligibility without disqualifying conditions remained in
effect because the employer failed to protest the initial determination within
the time allowed by law and, therefore, it was barred from raising the issue
for the first time after the charge was made against its account. Upon the
employer's appeal, we adopted the referee's findings of fact and opinion and
affirmed the decision. In its application for a reconsideration of our
decision, the employer points out that our decision is in conflict with a prior
decision of the Board in Appeal Board, 51,745-55.
The contention of the
employer that our decision which is being reviewed (Appeal Board, 18,037-60) is
in conflict with Appeal Board, 51,745-55 is correct. However, upon our review
of the law, particularly in the light of the decisions of the Court in Matter
of Ferraioli, 7 App. Div. 2d 819, reversing Appeal Board, 59,665-59
and Matter of Adinolfi, 10 App. Div. 2d 393, reversing Appeal
Board, 61,241-57, we are constrained to abandon the principle enunciated in
Appeal Board 51,745-55.
In the last cited case
the Board held that an employer was not bound by the limitation set forth, in
Section 620.1(a) of the Unemployment Insurance Law and was not precluded from
contesting an initial determination of claimant's eligibility without
disqualifying conditions notwithstanding its failure to make protest until
after the issuance of a notice of experience rating charge against its account.
That decision was predicated on the theory that Section 581.1(e) of the Law
superseded the time limitation contained in Section 620.1(a) of the Law and, in
effect, extended the employer's time to protest such an initial determination.
At the time of rendition of the aforesaid decision, the Law required a deposit
by an employer who protested such an initial determination but no deposit was
required when the employer's protest related to an experience rating charge.
Significantly, the requirement for such mandatory deposits has been repealed by
the Laws of 1959, Chapter 223, effective April 1, 1959. Thus, from the
effective date of the amendment to the statute an employer need merely request
a hearing in order to obtain a review of the initial determination ruling on
the claimant's immunity from disqualification.
In Matter of
Ferraioli, supra, the Court held that a referee was without jurisdiction to
inquire into the merits of a case if the protest were not made within the time
limited under the provisions of Section 620.1(a). In effect, the Court ruled
that that section of the Law provided for a "statute of limitations"
and that the failure to make a timely protest could not be excused. The Court
held that the initial determination of the Industrial Commissioner becomes
final if the claimant does not request a hearing within the time prescribed in
Section 620.1(a) of the Law. (also see Matter of Adinolfi, supra)
The cases reviewed by
the Court involved late protests by claimants. However, the same rule applies
with respect to employers. An employer whose account is subject to an
experience rating charge for benefits paid to a claimant is a party who is
affected by the initial determination. Section 620.1(a) specifically provides
that "a claimant…or any other party affected by such determination may
, within 30 days after the mailing or personal delivery of notice of such
determination, request a hearing." Accordingly, if there is no protest to
an initial determination within 30 days following its issuance, it becomes
final and an employer who is a party affected by the initial
determination becomes bound thereby and may not attack that initial
determination when the experience rating charges which flow as a matter of
course are made against its account. A contrary ruling would enable the
employer to unduly impede or delay the administration of the Law and the
payments of benefits to unemployed workers. If an employer were permitted to
defer its protest until after its received notice of an experience rating
charge, overpayments of benefits would necessarily result.
Nothing which is
contained in Section 581.1(e) of the Law requires the result sought to be
achieved by the employer herein. The notice of experience rating charge
constitutes "… a determination of the priority of such charge and the
payment of benefits on which such charge is based." Under the provisions
of Section 620.2 of the Law, an employer may protest such determination, but
such protest can only bring up for review those matters which have not been
theretofore finally and conclusively established. Thus, within the statutory
period after the issuance of notice of an experience rating charge, an employer
may protest the charge against his account on the ground that his account is
not the one to be charged with the payment of such benefits, or on the ground
that during the specific period for which such benefits were paid, the claimant
was ineligible for benefits because of unavailability, incapability, lack of
total unemployment, or for any other reasons which may have occurred
during those specific periods. However the disqualification provided for in
Section 593.1 of the Law becomes effective immediately upon the filing of the
claim following the claimant's separation from his last employment and
continues indefinitely thereafter until the claimant had engaged in subsequent
employment to the extent set forth in the statute. Accordingly, it is
contemplated by the provisions of Section 620.1(a) that when an employer
receives notice of the initial determination with respect to that issue, the time
within which he may make protest thereto commences to run from the date of the
issuance of such notice. That the failure of the employer herein to make such
protest stemmed from a clerical error is or no consequence since there is no
authority for excusing its default (Matter of Ferraioli, supra).
It is pertinent to note
that the Law makes provision for a review of an initial determination in the
event the Industrial Commissioner obtains new or corrected information which
satisfies him that there was an error in the original determination. In that
event, the Commissioner is authorized to issue a new determination within one
year from the date of the issuance of the original initial determination.
However, that is not the case here. The employer did not submit to the
Industrial Commissioner any information other than that which it submitted
prior to the issuance of the original determination, and the Industrial
Commissioner has not issued any revised or superseding initial determination.
We therefore, conclude
that the employer, by its failure to protest the initial determination within
30 days of August 30, 1960, became bound by the initial determination that
claimant was eligible to receive benefits without disqualifying conditions and
that such initial determination was final with regard to that issue.
Decision: The application of the employer for the
reopening and reconsideration of the decision in Appeal Board, 78,037-60 is
granted and the said decision is hereby rescinded. The initial determination
ruling claimant eligible to receive benefits without disqualifying conditions
remains in effect. The decision of the referee is affirmed. (April 28, 1961)
Index
No. 1645A-8
NEW
YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
June 8, 1961
Interpretation
Service-Benefit Claims
VOLUNTARY LEAVING OF EMPLOYMENT
Following Spouse
Appeal Board Case Number 78,484-61
FOLLOWING SPOUSE: COMPELLING REASON, QUESTION OF -- ILLNESS OF
CHILD
If a claimant quits his
job in order to move to the locality to which his wife had gone because of the
child's illness, he is not subject to the disqualification under the
"following spouse" provision of the law, even if his quitting for
this reason occurs several months after his wife and child had moved, since his
leaving was due to compelling circumstances, other than merely following his
spouse, in that the well being of his ill child required his physical presence.
Referee's Decision: The initial determination of the Out-of-State
Resident Office disqualifying claimant from receiving benefits effective July
20, 1960, on the ground that he voluntarily left his employment to follow his
spouse to another locality is overruled.
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, a counterman,
filed effective July 25, 1960. By initial determination effective July 20 he
was disqualified for voluntary leaving of employment in order to follow his
spouse to another locality. Claimant resided with his wife and three children,
aged five, four and four months, in New York City. In 1959, claimant's four
year old son became seriously ill. He was hospitalized for 20 days. The
physician advised that this son be removed to a warm climate for cure. Claimant
thereupon sent the child with his wife and the other children to Puerto Rico.
He remained in New York City. After several months in Puerto Rico claimant's
wife reported that the ill son had improved. Claimant thereupon decided to make
a permanent home in Puerto Rico and quit his job in order to move there.
Appeal Board Opinion and
Decision: We agree with the
referee's conclusion that the disqualification imposed by section 593.1(b) does
not apply, because claimant did not voluntarily leave his job to follow his
spouse to another locality. In Appeal Board, 79,951-61A we pointed out that, if
the proof indicates that the leaving of employment is due to compelling
circumstances which constitute good cause within the purview of Section
593.1(a) of the Law, the disqualification provided for in Section 593.1(b) does
not apply merely because, as a consequence of the leaving, the claimant joins
his spouse. Our aforesaid decision in Appeal Board, 79,951-61A is hereby
incorporated herein by reference. We find that in the instant case claimant's
voluntary separation from his employment was due to compelling circumstances in
that the well being of his child required his physical presence in Puerto Rico.
He therefore left his employment with good cause within Section 593.1(a) of the
Law and the disqualification provided for in Section 593.1(b) is inapplicable.
The initial determination of the Out-of-State Resident Office disqualifying
claimant from receiving benefits effective July 20, 1960, on the ground that he
voluntarily left his employment to follow his spouse to another locality is
overruled. The decision of the referee is affirmed. (May 26, 1961)
Index
No. 1640-A4
1740A-1
NEW YORK
STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
26, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Wages – Insufficient
APPELLATE DIVISION DECISION
Matter of Arthur Sellers, 13AD 2d 204
Appeal board No. 70,414-59
VOLUNTARY LEAVING OF EMPLOYMENT – WAGES BELOW PREVAILING
Dissatisfaction with
wages, even though they are below those which are prevailing for claimant’s
occupation, does not constitute good cause for voluntary leaving of employment,
unless circumstances are involved which have developed in the course of the
employment.
COURT DECISION
Claimant initially began
work as a porter for the employer on August 27, 1957, at a wage of $52.00 for a
48 hour week. On January 6, 1959, when his wage was $55.00 for a 48 hour week,
claimant voluntarily quit because he was dissatisfied with the amount of his
pay.
Assuming, arguendo,
that claimant’s wages were substantially less than those prevailing for similar
work in the locality, the question presented is whether an employee may take a
job initially at such sub-standard wages and then by a voluntary quit qualify
for unemployment benefits. The question has never been decided by the courts,
hence, there is no judicial precedent which is controlling or which is of much
aid in solution. The question has apparently proved a troublesome one for the
Unemployment Insurance Appeal Board which has decided it both ways at different
periods of time. (Cf. Appeal Board decision 49,266-55 dated April 15, 1955;
54,433-56, dated May 11, 1956; 55,350-56 dated June 15, 1956; 55,898-56 dated
July 13, 1956; 56,363-56 dated August 31, 1956; 55,889-56 dated September 14,
1956; 61,471-57 dated January 24, 1958 and 65,572 dated September 12, 1958.
We do not think a
claimant, under the circumstances present here, should qualify, without
restriction, for benefits. First, the general intent, purposes and objectives
of the Unemployment Insurance Law would not seem to include a situation such as
this. The primary purpose of the law is to ease the hardship of involuntary
unemployment due to economic conditions or other conditions beyond the control
of the employee. It was not intended as a substitute for a minimum wage law.
(Here claimant never received less than the legal minimum wage.) It was not
intended to regulate wages, -- it was intended as a substitute for the complete
loss of wages forced upon an employee. (Unemployment Insurance Law, § 501,
522.) secondly, the Unemployment Insurance Law expressly disqualifies claimant.
Pursuant to section 593 of the Unemployment Insurance Law, claimant is not
entitled to benefits after a voluntary separation from employment solely
because of dissatisfaction with wages, even if they were less than the
prevailing wage, unless he comes within the literal terms of an exception
contained in section 593, subdivision 1(a), the pertinent part of which reads:
"* * * voluntary leaving of employment shall not in itself disqualify a
claimant if circumstances have developed in the course of such employment that
would have justified the claimant in refusing such employment in the first
instance * * *."
No circumstances
whatever "developed in the course of such employment" which would
have justified claimant in refusing the employment in the first place. His
wages were not reduced during the employment, they were raised. If we assume
his wages were sub-standard when he quit, they were sub-standard when he took
the job. Nothing "developed in the course of such employment" which
would justify a refusal of the job in the first instance, and we may not ignore
those plain words in the statute. To hold otherwise would permit an employee,
fully aware of the wage to be paid, to take a job and use that job for the
necessary qualifying period of employment, and then, for no reason not present
in the first instance, voluntarily quit and receive unemployment insurance
benefits. Such an interpretation is unrealistic and entirely beyond the real
purpose of the statute.
Moreover, we do not
think the record in this case sustains a finding that claimant was receiving
less than "prevailing" wages for his type of work. There is evidence
in the record that the wages paid claimant were commensurate with wages paid
for similar work in the locality, and that the State Employment Service had
referred applicants to job as porter at $1.00 per hour. However, the Board
relied upon a survey made by the United States Department of Labor, Bureau of
Labor Statistics, dated April 1958, which found that the median salary of male
janitors, porters and cleaners in the retail trades in the New York City area
was $1.36 per hour. Claimant’s wage was within the range of wages found in the
survey (which varied widely), but was somewhat less than the "median"
wage. The difficulty is that "median" wage, the wage of the middle
worker, is not the same thing as "prevailing" wage. A wage may not be
said to be "prevailing" when substantially one-half of the workers
are receiving less and substantially one-half are receiving more. The statute
nowhere uses the word "median". In order to be a prevailing wage it
must appear that at least a majority of workers in similar employment are receiving
approximately that wage.
The survey relied upon
necessarily included widely varied types of establishments and employers and
included employees of widely varied abilities, experience and job performance.
To arbitrarily take the middle worker’s wages as the wages
"prevailing" for the particular type of work performed by claimant
finds no sanction in the statute, in judicial precedent, or in common sense.
The decision should be
reversed, with no costs to the appellant against the respondent. (May 23, 1961)
COMMENTS
- This release deals only with that part of the Court’s
decision which relates to the role of prevailing wages in voluntary quit
cases. It does not deal with the discussion in the Court
decision regarding proper standards for establishing prevailing wages.
That topic will be presented separately and File A-710-32 may be revised.
Local Offices should not apply any new standards in that respect, unless
and until so advised.
- Insofar as here pertinent, the decision speaks for
itself. As a result, prevailing wages will have, generally, no bearing on
the question whether a quit is with or without good cause. An illustration
for the exception – circumstances which developed in the course of
employment – is the case of a claimant who was hired many years ago with wages
which at that time satisfied the prevailing wage requirement. However, he
did not receive wage increases in line with the rise of the cost of living
and the general advance of wage scales over the years. Thus, the
inadequacy of the wages now is due to circumstances which developed in the
course of the employment.
- Even though the decision deals only with prevailing
wages, it is logical to conclude that the same principles apply to the
other reasons which "would have justified the claimant in refusing such
employment in the first instance" under the specifications enumerated
in Section 593.2 That includes being fitted by training and experience for
the job and distance from residence. Such factors will, generally, be no
longer grounds for holding that a voluntary separation is with good cause.
Index
No. 1310.3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
28, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Due to
COURT OF APPEALS DECISION
Matter of Thomas J. Gilmartin, 10NY 2d 16
Appeal Board No. 68,127-59
INDUSTRIAL CONTROVERSY, QUESTION OF: ILLEGAL ACTION OF
"OUTSIDE" UNION
There is an industrial
controversy within the meaning of the Unemployment Insurance Law in an
employer’s establishment if the employer refuses the demand of a union (i.e.,
to hire one of its members), although the union does not represent employees in
his shop and none of the employer’s present workers is a member of the union
and even if such action by the union is "illegal" and not a
"labor dispute" within the meaning of Section 876-A of the Civil
Practice Act.
COURT OF APPEALS DECISION
This appeal, here by
permission of the Appellate Division, poses a question somewhat different from
that presented in Matter of Ferrara and the other cases which
we have just treated (supra, pp. et seq.).
The claimant, a material
yard worker, was employed by Flexicore Precast, Inc., a manufacturer of
concrete products. The concrete which is used in its manufacturing process was
supplied by Ryan Concrete Company. At the time of the claimant’s unemployment,
both corporations were owned by the same person. The two corporations were,
however, distinct legal entities and occupied separate premises.
The industrial
controversy with which this case is concerned arose in the following manner. A
representative of the Lathers’ Union called upon Flexicore and demanded that a
member of that union be employed to operate a lathe that was being used by
Flexicore. Flexicore, whose employees were members of other unions, refused the
demand. The Lathers’ Union representative enlisted the aid of the Teamsters’
Union and, thereupon, the truck drivers employed by Ryan refused to deliver
concrete to Flexicore. Flexicore was forced to lay off its employees, including
the claimant.
As we have already
noted, the issue here involved differs from that in the other cases. In each of
them, the essential question was whether the facility in which the claimant was
employed constituted a separate establishment from the establishment in which
the industrial controversy occurred. Flexicore and Ryan unquestionably
constituted separate establishments, and we are here called upon to decide
whether there was an industrial controversy at Flexicore where the claimant
worked. We believe there was. Flexicore was the employer of whom the Lathers’
Union demanded employment for one of its members. The fact that the Lathers’
Union sought to achieve this objective by having its Teamster ally bring
indirect pressure through the truck drivers of an essential supplier does not
change the basic character of the controversy or alter Flexicore’s involvement.
Flexicore and the Lathers’ Union continued to be the primary disputants.
The claimant contends,
however, that the conduct which caused the loss of employment was a
"secondary boycott" and, therefore, could not be considered an
"industrial controversy". To support his position, he calls attention
to several cases holding that similar conduct has been held to be
"illegal" and not a "labor dispute" within the purview of
section 876-1 of the Civil Practice Act, our so-called anti-injunction statute.
It is unnecessary to
test the validity of the conduct here in issue in terms of section 876-a. The
purposes underlying the Civil Practice Act provision and those which underlie
section 592 of the Unemployment Insurance Law are entirely different. That an
employer may be entitled to injunctive relief against unlawful conduct on the
part of a union does not establish that the employees of such an employer, who
were laid off as a result of the unlawful conduct, are entitled to unemployment
insurance benefits. In interpreting section 592, the unlawfulness of the
controversy is beside the point; the statute does not permit value judgments
either as to employer or employee conduct.
The fact that the
Lather’s Union did not represent Flexicore’s then current employees is also
beside the point. Such a consideration bears only upon the propriety of the
conduct, not upon the existence of a controversy.
In this case, therefore,
it is our conclusion that there is an industrial controversy at Flexicore, the
establishment in which the claimant and his fellow employees were employed,
and, accordingly, benefits should have been suspended for the statutory period.
(See Matter of Lasher [Bethlehem Steel Co.], 279 App.
Div. 505.)
The order of the
Appellate Division should be reversed and the determination of the Industrial
Commissioner reinstated. (May 25, 1961).
* * *
(Note: The Industrial
Commissioner appealed from the Referee Decision, the Appeal Board Decision and
the Appellate Division Decision, which decisions overruled the local office
disqualifying determination. The Court of Appeals, as a result of appeal by the
Industrial Commissioner, sustained the local office determination.)
Index
No. 1460A.1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
27, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Vacation Pay
Appeal Board Case Number 79,941-61
ALLOCATION OF VACATION PAY
Where a vacation
agreement calls for a specific two-week plant shut down and provides that all
vacations shall begin on the first Monday, a paid vacation for one week must be
allocated to the first week.
Referee’s Decision: The decision of the referee overruled the
initial determination of the local office holding claimant, an operator in a
shoe factory, eligible to receive benefits effective July 4 through July 10, 1960
without disqualifying conditions and sustained the employer’s objections to the
payment of benefits to claimant on the ground that he was ineligible to receive
benefits effective July 4 through July 10, 1960, because he was on paid
vacation during that period.
Appealed By: Industrial Commissioner
Findings of Fact: We have reviewed the evidence adduced at the
hearing before the referee and find that the following findings of fact made by
the referee are amply supported by the evidence and they are hereby adopted as
the findings of fact of the Board:
* * *
Claimant
filed an original claim effective July 6, 1959, and an additional claim
effective July 4, 1960. An initial determination was issued ruling him eligible
for benefits for the period July 4 through July 10, without disqualifying
conditions. The employer objected thereto and requested a hearing.
Claimant
was employed as an operator in a shoe factory for one year and about six months
through July 1, 1960. He worked a five-day week from Monday through Friday. The
employer is in contractual relations with the union of which claimant is a
member. Paragraph seven of the collective bargaining agreement provides that
employees who on June 15 of the vacation year have had five or more years of
service with the employer shall receive two weeks vacation pay and those who
have had less than five years of service shall receive one week’s vacation, to
be computed in accordance with prescribed standards, that all vacations shall
begin on Monday of the week in which July 4th falls and if two
weeks of actual vacation are taken, the same shall be two consecutive weeks of
vacation; and that any firm under contract with the union for five continuous
years or more shall close its factory for two weeks during the vacation period.
The
employer shut down its plant for a two-week vacation period commencing Monday,
July 4 because it was under contract with the union for at least five
continuous years. Claimant was substantially fully employed in the weeks
preceding and following the vacation period. In accordance with the union
contract claimant was entitled to and was paid one week salary for vacation and
holiday pay.
Claimant’s
benefit year expired July 10, 1960.
A
Bulletin of the Interpretation Service, File No. A-710-10, 1959 Supplement,
entitled "BENEFIT CLAIMS DURING VACATION PERIODS AND HOLIDAYS" at
page three subtitle e. "Allocation" states:
When
a claimant receives vacation pay for the entire "vacation period"
there is, of course, no problem of allocation. However, where, for instance, a
"vacation period" of two weeks has been established and a claimant
receives payment for only one week, the payment is usually allocated to the
first week of the period.
However,
discretion in allocation is permissible to prevent hardship. For example, the
claimant may have set aside the second week for a trip with the result that he
is not available in that week but is available in the first week. Or by
coincidence a claimant’s benefit year may expire at the end of the first week.
Allocation to the first week would deprive him of benefits in that week and
only permit credit of a waiting week in the new Benefit Year. Allocation to the
second week is proper under such circumstances as well as in other situations
where a contrary approach would be inequitable.
In
accordance with the foregoing Bulletin, the insurance office allocated
claimant’s vacation pay to the second week of the plant shut down, in
consequent of which he was ruled eligible for benefits for the period herein.
The
employer contended that claimant’s vacation pay should have been allocated to
the first week of the vacation period.
Appeal Board Opinion and
Decision: Inasmuch as the
referee has rendered a well-reasoned opinion, we hereby adopt the opinion of
the referee as the opinion of the Board:
The
employer’s contention has merit. Section 591.3 of the Unemployment Insurance
Law was enacted to eliminate alleged inequities and abuses which resulted from
decisions defining the eligibility of persons claiming benefits who were
unemployed during periods when an employer shut down a plant purportedly to
provide a vacation period for all its employees.
An
analysis of the statute manifests that it was intended to design a formula
whereby benefits would be denied employees enjoying a genuine paid respite from
work and shield the benefit rights of those subjected to an involuntary rest
without pay.
Although
situations might arise where the application of "discretion in allocation"
of a partial vacation allowance for a vacation period, as set forth in the
Bulletin cited herein above would be warranted either because it is infeasible
to determine with certainty the week to which the pay allowance should be
allocated or for other reasons, such is not the case in the matter herein.
Claimant’s
vacation rights derive from the collective agreement. He and the employer are
equally bound by its provisions. Since the agreement specifically provides that
all vacations shall begin on the Monday in which July 4th falls,
it is clear that claimant’s vacation commenced on the first day of the plant
shut down and continued for the period for which he was paid vacation, in
accordance with Section 591.3 of the Law. It follows that the employer’s account
should not be subject to a charge for the payment of benefits arising from
claimant’s unemployment from July 4 through July 10 which might affect the
employer’s tax rate, because of the accidental circumstance that claimant’s
benefit year expired in the week in which he was ineligible for benefits
because he was in a vacation period for which no benefits are payable.
The initial
determination of the local office holding claimant eligible to receive benefits
effective July 4 through July 10, 1960 without disqualifying conditions is
overruled and the employer’s objections to the payment of benefits to claimant
on the ground that he was not eligible to receive benefits during the period
July 4 through July 10, 1960, because claimant was on a paid vacation during
that period, is sustained. Claimant is ineligible to receive benefits effective
July 4 through July 10, 1960 on the ground that he was on a paid vacation
during that period. The decision of the referee is affirmed. (June 20, 1961)
Index
No. 1320D-8
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
5, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Lack of work or industrial controversy
COURT OF APPEALS DECISION
Matter of Edward S. Wentworth, et al, 10NY 2d 13
Appeal Board No. 65,794-58
QUESTION OF WHETHER LOSS OF EMPLOYMENT IS DIRECTLY ATTRIBUTABLE TO
INDUSTRIAL CONTROVERSY IN ESTABLISHMENT
If there is an
industry-wide industrial controversy, the provisions of Section 592.1 apply to
a claimant only if his unemployment is directly
attributable to the industrial controversy in his place
of employment. Thus, in the case of a general strike of truck drivers in the
construction industry, the construction workers of an employer are not
suspended from benefits if their loss of employment is attributable to the
non-delivery of cement caused by the strike of truck drivers against another
employer supplying the cement, rather than to the participation in the strike
by the truck drivers employed by employer of the construction workers.
COURT OF APPEALS DECISION
In this case, as
in Matter of Curatalo (supra, p. ), the Industrial
Commissioner also appeals by our permission.
The claimants were
employed as carpenters and timberman by Tully & DiNapoli, Inc., a
construction firm working on road construction projects in the New York City
area. Their duties consisted of constructing wooden forms and performing other
work in preparation for the pouring of concrete. On Monday, February 3, 1958,
Local 282 of the Teamsters Union called an industry-wide strike. Among those
who struck were the truck drivers of the Colonial Sand & Gravel Company,
the outfit from which the employer obtained its concrete. As a result, since
there were no deliveries of concrete to fill the wooden forms, the claimants
were laid off on various dates over a period from Friday, January 31, the last
working preceding the strike, to February 7, some days after the strike began.
The employer’s own dump truck drivers, who carted materials from one part of
the project to another, also participated in the strike.
The claimants’
application for full unemployment insurance benefits was rejected by the
Industrial Commissioner and by the Referee. However, both the Appeal Board and
a unanimous Appellate Division took a different view; it was their opinion that
the employer’s decision to curtail operations and the claimant’s loss of
employment occurred because of a combination of unfavorable weather and the
strike of the Colonial Sand and Gravel truck drivers. It is clear that the
claimant’s loss of employment was not attributable to the participation of the
employer’s dump truck drivers in the Teamster strike. It is enough to say that,
for the reasons set out in Matter of Ferrara (supra, p. ), we
conclude in this case, too, that the industrial controversy which gave rise to
the layoff did not occur in the establishment in which the claimants were
employed.
The order of the
Appellate Division should be affirmed. (May 25, 1961)
Index
No. 1180-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
10, 1061
INTERPRETATION
SERVICE – BENEFIT CLAIMS
MISCONDUCT
Union Activities
Appeal Board Case No. 80,096, et al
CONDUCT OVER STEPPING BOUNDS OF LEGAL AND PEACEFUL PICKETING
A claimant who in the
course of an industrial controversy oversteps the bounds of legal and peaceful
picketing (blocking of plant entrance; intimidating and threatening other
workers; damaging other workers’ property; etc.) and is discharged for this
reason is subject to a misconduct disqualification beginning with the actual
date of discharge since the employer-employee relationship is not terminated by
the controversy.
Decisions Appealed: these are cross appeals. Claimants in Groups I
and II appeal from the decision of the referee filed March 6, 1961 insofar as
it sustains the initial determinations of the local office disqualifying
claimants from receiving benefits effective various dates on the ground that
they lost their employment through misconduct in connection with their
employment. The employer appeals from the decision of the referee insofar as it
overrules the initial determination of the local office disqualifying claimant,
L.V., from receiving benefits effective October 27, 1960 on the ground that he
lost his employment through misconduct in connection with his employment, or in
the alternative, on the ground that he voluntarily left his employment without
good cause by provoking his discharge.
Findings of Fact: We have reviewed the evidence adduced before
the referee and find that such evidence supports the following findings of fact
made by the referee:
* * *
Claimants
were employed in various production occupations by a corporation which
manufactures electrical and allied equipment. The employer was in contractual
relationship with Local 320 of the International Union of Electrical Workers.
All of the claimants involved were members of the union.
The
contract between the employer and the union expired on September 30, 1960. On
October 1 a strike was called against the employer by the union involved. Prior
to the beginning of the industrial controversy the employer, through the medium
of a weekly newspaper published for its employees and through local newspapers,
had notified its employees that there was a threat of a strike but that the
employer’s plants would remain open for all employees who wished to work; that
the employer had been assured by law enforcement officials that individuals who
wished to work would be protected against any illegal acts such as violence,
threats or intimidation. Among other statements the publication set forth acts
that had been held illegal by the National Labor Relations Board and by the
courts, such as participating in mass picketing at gates, designed to prevent
access to employees desiring to work; physically damaging or manhandling any
vehicle seeking entrance to the plant; standing or massing in front of, or placing
any kind of obstruction in the path of, such vehicle in an attempt to prevent
access to the plant; physically assaulting employees who attempted to enter the
plant; using force, threat of force or any intimidation designed to prevent or
discourage entry to the plant by employees who wished to work. The publications
further stated that, "To avoid any misunderstanding, the company wishes to
make it clear that it will consider any such illegal acts as cause for
discharge, or other disciplinary action."
The Board makes the
following additional findings of fact: The employer’s plant is located on about
300 acres of land in the outskirts of Syracuse. There are about 14,000
employees of which about 9,000 are salaried workers who were not affected by
the strike. There are about 5200 production and maintenance workers. Their
starting hour of work is 7 a.m. Of this group, about 1200 reported for work
during the strike. In the course of the strike, five entrances to the plant
premises were in use. Incidents occurred at or near several of the plant
entrances which resulted in disciplinary action taken by the employer against
thirty-three individual employees. Of these 15 were discharged and 18 were
suspended for varying periods. The twenty-one claimants involved on this appeal
are among these and are grouped as follows:
GROUP I
Each of the claimants in
this group wilfully parked his or her automobile in concert with others at or
near entrances to the employer’s plant, resulting in a complete blocking of the
plant entrances for periods of as long as 15 minutes, preventing employees who
desired to enter the plant from so doing. All of this group, except claimants
A.A. and R.T. participated in the blocking of the main entrance to the
employer’s plant commencing at about 6:20 a.m. on October 10 by placing their
personal automobiles in the roadway. The employer used various means of
removing the vehicles from the road. As soon as one car was removed, another
automobile would be driven into its place to complete the blockage. Traffic on
the main highway leading to the main entrance was disrupted and backed up for a
considerable distance. Employees wishing to enter the company premises through
the main entrance were unable to do so. Claimants A.A. and R.T. in concert with
others similarly blocked different entrance roads into the employer’s plant in
the early morning hours of October 10, thus preventing employees’ cars from
entering the plant premises.
GROUP II
The ten claimants in
this group are charged with various acts inimical to the employer’s interests
based on incidents occurring at various times during the course of the strike.
These charges include blocking of plant entrances to prevent employees from
entering, intimidating and threatening other employees to discourage their
reporting for work, causing damage to employees’ automobiles and other acts of
aggression. All of these claimants were discharged by the employer except
claimant R.N. who was suspended.
Claimant M.C., by use of
a sharp instrument, inflicted a long, deep scratch on the body of an automobile
of an employee while the car was passing through the plant gate on the morning
of October 5.
Claimant H.B., prior to
the opening hour on the morning of October 11, blocked the plant entrance by
standing in front of automobiles attempting to enter the plant. In addition, he
threw nails under the tires of an automobile of an employee who was driving
into the plant causing the tires to be punctured.
Claimant J.T. blocked
the plant entrance by standing in front of automobiles attempting to enter;
attempted to run down and employee with his automobile; used abusive and
threatening language to a company observer and jostled him while doing so.
Claimant S.C., in
written form, made filthy accusations against a female employee and threatened
damage to her car and to scar his woman for life if she continued to come to
work. This information was written on a strike banner which was thrown on the
female employee’s porch by an unknown person. The handwriting on the banner was
positively identified as that of claimant, by comparison with claimant’s known
handwriting, by a qualified handwriting expert.
Claimants R.B. and R.N.
were among a group of about 150 pickets who were massed at the main gate to the
employer’s plant at about 6:30 a.m. on October 6. These pickets blocked the
entrance to both driveways at the main gate. Law enforcement officials
attempted to clear the driveways by appeals and warnings to the strikers to
allow traffic to pass through, by the use of fire hoses ineffectively three
times and finally by the use of force, all in an effort to disperse the
pickets. Resistance was encountered from the crowd in the course of which both
claimants received severe head injuries from the club of an official, resulting
in hospitalization and medical treatment. Claimants were subsequently arrested
and charged with assault upon the officer, but the charges were later
dismissed.
Claimant M.M. was
charged with the blocking of the plant entrance, threatening employees to
prevent them from entering the plant and with an assault on another employee.
M.M. was observed on the picket line on the morning of October 4 to be one of a
group who were making remarks to employees entering the plant and to engage in
a discussion with one worker in particular. The assault charged against M.M.
took place at the bus stop near the main gate in the early morning of October 5
and prior to daylight. At the time of such assault claimant was said to be at
another gate some distance away by several witnesses, including a witness
produced by the employer. Another company witness who observed the assault was
unable to make an identification of the assailant because it was still dark.
The victim, in originally reporting the assault, stated merely that she had
been struck by a picket.
Claimant H.T., by use of
a syringe, squirted a foreign substance on the automobile of a salaried
employee while it was passing through the plant gate, causing minor damage to
the body of the car.
Claimant S.B. placed a
board with nails under the car of an employee entering the plant and
distributed nails on the roadway, causing punctures in tires of employees’
cars. He also jostled and interfered with a company employee who was attempting
to sweep nails out of the roadway to the plant.
Claimant R.N. also threw
nails under the tires of automobiles entering the plant causing flat tires to
the automobile.
GROUP III
Of the original five
claimants in this group, the only one involved in this appeal is L.V.,
president of the union local. L.V. is charged with blocking the plant entrance
and inciting pickets to mass themselves in front of the plant entrance in order
to create an atmosphere of fear and terror so as to frighten away from work
employees desiring to enter the plant for that purpose. On September 29 and
prior to the strike, claimant as president of the union local addressed the
union members at a meeting held at the plant gate, telling the workers that the
success of the strike is dependent upon the picketing and making suggestions to
the workers as to the manner of conducting themselves as pickets. On October 5
at about 6:45 a.m., claimant appeared in front of the main gate to the
employer’s plant and outside of the employer’s premises where there were at the
time from 60 to 70 pickets and 25 to 30 law enforcement officials. L.V.,
following advice of union counsel, instructed the pickets as to the manner in
which they may line up and picket in front of the entrance. By 7 a.m. the
picket line had increased to from 100 to 125 pickets. The picket line was
broken from time to time to permit traffic to enter the gate. Claimant indulged
in discussions and arguments with officials as to what constituted legal
picketing, as to which there was a difference of opinion. At one point,
claimant in crossing the road caused an automobile entering the plant to stop
momentarily in the roadway while he moved out of the way in order to avoid
being run over. Motion pictures of a few minutes of the incident of the morning
of October 5 showed claimant endeavoring to control the picket line and to
clear pickets from the driveway.
Appeal Board Opinion and
Decision: the referee sustained
disqualifications for loss of employment due to misconduct in connection
therewith against all of the claimants in Groups I and II, from which part of
his decision the claimants have appealed. The referee overruled determinations
of loss of employment through misconduct and alternative initial determinations
of voluntary leaving of employment without good cause by provoking their
discharge against claimants in Group III. The employer appeals only with
respect to claimant L.V. who was included in this group.
The pertinent provision
of the statute relating to misconduct reads as follows:
593.3
Misconduct. No days of total unemployment shall be deemed to occur after a
claimant lost his last employment prior to the filing of his claim through
misconduct in connection with his employment until he has subsequently worked in
employment on not less than three days in each of four weeks or earned
remuneration of at least two hundred dollars.
It is contended on
behalf of claimants that this provision does not apply because the
employer-employee relationship no longer existed between the employer and
claimants during the period of the industrial controversy. It is pointed out
that the contract between the union and the employer had expired prior to the
beginning of the strike. Reliance is placed also on the definition of "employment"
asset forth in Section 511 of the Unemployment Insurance Law as meaning
"…any service under any contract of employment for hire, express or
implied, written or oral." The Industrial Commissioner argues that the
employment relationship between the employer and claimants was not terminated
by the industrial controversy, citing Section 2(3) of the Labor Management
Relations Act of 1947 (49 U.S.C.A., Sec. 152(3) which provides:
The
term "employee" shall include . . . any individual whose work has
ceased as a consequence of or in connection with any current labor dispute . .
. and who has not obtained any other regular and substantially equivalent
employment . . .
In Matter of
Sadowski, 257 App. Div. 529, affirming Appeal Board, 229-38, the Court
dealt with the question of loss of employment due to an industrial controversy
under the strike disqualification provision as it was then contained in Section
504.2(b) of the original Unemployment Insurance Law reading as follows:
An
employee shall not be entitled to benefits except for unemployment which
continues subsequent to a waiting period of ten weeks:
a.
if he has lost his
employment through misconduct in connection with his employment; or
b.
if he has lost his
employment because of a strike, lockout or other industrial controversy in the
establishment in which he was employed
There the Court said at
page 531:
* * *
The
sole question for determination by us is whether claimant lost her employment
because of lack of work or because of the strike in the establishment in which
she was employed.
It is
conceded that claimant was neither laid off nor discharged. Certainly
claimant’s employment was not terminated by the strike. Under the statute those
who cease work because of a strike, lockout or other industrial controversy
retain their status as employees.
Although in the
subsequent statute, the word "claimant" has been substituted for the
word "employee," there is no indication that in making such change
there was any intention to alter the status of the parties. In a decision
involving a later statute providing for the suspension of accumulation of
benefit rights by a "claimant" after loss of employment because of
industrial controversy we stated:
* * *
Clearly,
there is no severance of the employment relationship between claimant and the
newspaper publisher throughout the duration of the strike. Claimant’s immediate
restoration to the roll of strikers and to strike benefits on the termination
of his temporary employment coupled with his many years of seniority in and his
subsequent return to his regular employment after the strike ended, permit of
no other conclusion. (Appeal Board, 15,925-47)
In the instant case
where the strikers could return to their employment at any time in the course
of the strike where they suffered no break in their service for seniority
purposes by reason of the time they were on strike and where there was no
intention on their part to abandon their employment, it seems equally clear
that there was no severance of the employer-employee relationship.
Decisions in other
jurisdictions are to the same effect. [NLRB v. McKay Radio and Telegraph
Company, 304 U.S. 333; NLRB v. Deena Artwear, Inc., 198 F. (2d)
645; Cusano v. NLRB, 190 F. (2d) 898.); Collins Baking
Company v. NLRB, 193 F. (2d) 483, 486; Swart v. Huston, 1941,
154 Kansas 18a]. we agree with the conclusion of the referee that the
expiration of the collective bargaining agreement followed by the strike did
not sever the employment relationship during the period of the industrial
controversy.
Turning to the question
of whether or not the conduct of the claimants during the strike constituted
misconduct within the meaning of the law, no recorded decisions in this State
have been called to our attention involving charges of misconduct due to
incidents occurring on a picket line or in the course of an industrial
controversy. The referee placed reliance upon a large number of administrative
decisions of sister states from which it appears to be the consensus that
disqualifications for loss of employment due to misconduct in connection with
employment may be grounded on occurrences of this nature.
Misconduct is not
defined in the Unemployment Insurance Law. We have cited with approval and
generally followed the principles contained in Boynton Cab Company v.
Neubeck, 237 Wis. 249, wherein the Supreme Court of Wisconsin stated:
. . .
The term ‘misconduct,’ as used in the disqualification provision is limited to
conduct evincing such wilful or wanton disregard of an employer’s interests as
is found in deliberate violations or disregard of standards of behavior which
the employer has the right to expect of his employee, or in carelessness or
negligence of such degree or recurrence as to manifest equal culpability,
wrongful intent or evil design, or to show an intentional and substantial
disregard of the employer’s interests or of the employee’s duties and
obligations to his employer.
Employees’ right to
picket an employer’s premises is protected by both federal and state law. We do
not presume to define the limits of legal and peaceful picketing. However, we
agree with the conclusions of the referee that the charges that the conduct of
claimants overstepped the bounds of legal and peaceful picketing was sustained
by all of the evidence, with any exceptions which might follow. We hold that
such conduct constituted misconduct under the Law.
We are in agreement with
the referee that all of the claimants in Group I "deliberately and
intentionally and in concert with others parked automobiles in or near the
entrances to the employer’s plant in such manner as to completely block the
entrances, thus preventing employees from reporting for work and slowing down
the production of the employer, all of which was to the detriment of and injury
to the employer." We agree also that such conduct evinced a wilful and
wanton disregard of the employer’s interests and was in deliberate violation and
disregard of standards of behavior which an employer has a right to expect of
its employees.
With respect to the
claimants in Group II, we agree with the conclusion reached by the referee with
the exception of his disposition of the case of claimant M.M. (Appeal Board,
80,112-61). This claimant was charged with a serious offense resulting in
personal injuries to a fellow employee. Although there is no question that such
an assault took place, there is considerable doubt whether claimant was the
person who committed the assault. It is not disputed that because of the
darkness which prevailed at the time identification of the guilty person is a
difficult matter. Significantly, claimant has been placed at another location
at the time of the assault by witnesses including those of the employer.
Moreover, the victim, when originally reporting for treatment for her injuries,
did not name claimant as her assailant. Upon all of the evidence, we are of the
opinion that it was not established that claimant M.M. was guilty of the acts
of misconduct charged.
Claimants M.E.C., H.B.,
H.T., S.B. and R.N. in Group II were shown to have committed acts causing
damage to employees’ automobiles which were being driven through entrances to
the plant by employees on their way to work. Unquestionably, such acts passed
beyond the bounds of peaceful picketing and were intended to intimidate and
discourage workers from continuing their employment during the strike.
Claimants R.B. and R.N. in this group, in concert with others, blocked the entrance
to the employer’s plant and failed to heed the warnings of the law enforcement
officers to disperse. As the referee observed, while these two employees were
the only ones of this group charged with the offense, their actions were
sufficiently identified with violence or threat of violence to warrant a
finding that their subsequent loss of employment was occasioned by acts of
misconduct. It is, therefore, immaterial to the case that the other
participants were not similarly charged.
The remaining members of
Group II, J.T. and S.C. were also shown to have committed aggressive acts of a
deliberate nature resulting in prejudice to the employer’s interests sufficient
to brand such acts as misconduct. In addition, the evidence establishes that
claimants H.B. and S.B. committed aggressive acts of similar import.
Finally, we agree with
the referee in his disposition with respect to L.V., the only claimant in Group
III, as to whom an appeal was taken. The charge against this claimant relating
to the speech made by him prior to the strike is that, at the most, he made
misleading statements to accompanying employees concerning their constitutional
rights. The other charge arising out of claimant’s participation in the
incident at the main gate on the morning of October 5 was not sustained by the
evidence. Claimant was at the scene in his capacity as president of the local
instructing and advising the pickets as to their rights as he understood them.
It is understandable that in the heat of argument and the confusion arising out
of an incident such as this, legal niceties cannot be observed with exactitude.
Upon all of the evidence, it cannot be said that it was shown that claimant
L.V.’s actions were deliberately designed to create an atmosphere of fear and
terror as charged by the employer.
One point remains for
comment. The alternative determinations of voluntary leaving of employment
without good cause by provoking their discharge issued against claimants are
based on the employer’s statements and publications warning employees against
the commission of illegal acts in the course of the strike and the declaration
by the employer that any such illegal act would be considered as cause for
disciplinary action. It is unnecessary to pass upon this question except with respect
to claimants M.M. and L.V. as to both claimants, we hold that it has not been
shown that they deliberately acted in such a manner as to provoke their
discharges.
The initial
determinations of the local office disqualifying claimants from receiving benefits
effective various dates on the on the ground that they lost their employment
due to misconduct in connection with their employment is sustained as to all
claimants involved herein except claimants M.M. and L.V.
The initial
determination of the local office disqualifying claimants M.M. and L.V. from
receiving benefits effective October 27, 1960 on the ground that they lost
their employment through misconduct in connection with their employment, or in
the alternative on the ground that they voluntarily left their employment
without good cause by provoking their discharge, are overruled. The decision of
the referee is modified accordingly and, as so modified, is affirmed. (June 22,
1961)
COMMENT
These Appeal Board
decisions were affirmed by the Courts in Matter of Davis, 24AD 2nd
904.
Index
No. 1205E-7
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May
16, 1962
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Disqualification Period During Inactive Status
APPELLATE DIVISION DECISION
(MATTER OF SCHURMANN, 16AD 2d 311)
Appeal Board Case Number 76,769-60
REFUSAL WHILE INELIGIBLE – INABIL8ITY TO FILE VALID ORIGINAL CLAIM
A disqualification for
refusal of employment may apply to any person who is a "claimant,"
that is, "seeking benefits" at the time of the refusal by having
filed a claim, even though he has no right to benefits at that time for other
reasons.
Referee’s Decision: The initial determination of the local office
disqualifying claimant from receiving benefits effective August 5, 1960, on the
ground that, without good cause, she refused employment for which she is
reasonably fitted by training and experience is overruled. No appeal was taken
from that part of the referee’s decision which modified the initial
determination holding claimant ineligible effective July 7, 1960, because she
was unable to accumulate any effective days, by making the same effective July
7 through August 14, 1960.
Appealed By: Industrial Commissioner
Appeal Board Findings of
Fact: Claimant, a
manicurist, filed a claim for benefits, effective July 7, 1960. She had been
employed in a beauty parlor from March 26, 1959 until June 18, 1960 when she
went on vacation. She worked three days per week and earned $14 per day. She
had been advised by her doctor to work no more than three days weekly. From the
time she initiated her claim, she constantly indicated that she would not work
on more than three days of any week. Nevertheless, she continued with her
reports to the insurance office but she was not paid any benefits. On August 4,
1960, she refused to accept referral to her former employer for possible
re-employment because of personal differences between such employer and
herself.
Appeal Board Opinion and
Decision: We are in accord with
the referee’s conclusion that since claimant could not file a valid original
claim due to her admitted unwillingness to work more than three days in any
week, she could not be disqualified under Section 593.2 of the Law.
Section 527 which
enumerates the conditions prerequisite to the filing of a valid original claim,
provides as follows in subdivision 3 thereof:
General
Condition. A valid original claim may be filed only in a week in which the
claimant has at least one effective day of unemployment.
(underscoring supplied).
"Effective
day" is defined in Section 523 of the Labor Law as follows:
"Effective
day. ‘Effective day’ means a full day of total unemployment provided such day
falls within a week in which a claimant had four or more days of total
unemployment and provided further that only those days of total
unemployment in excess of three days within such week are
deemed ‘effective days’." (underscoring supplied).
From the reading of the
pertinent section of the law, quoted above, it is clear that the claimant did
not file a valid original claim, since upon her own admissions, she was unable
to accumulate any effective days in any week up to and including the week in
which she refused the offer of re-employment. Under these circumstances, the
principle enunciated in Matter of Foscarinis, 284 App. Div. 476,
affirming Appeal Board, 35,617-53, is applicable. In that case the Court said.
It is
inherent in the statute that, before a disqualification may be imposed, benefit
rights must exist from which he might be disqualified.
The Court further
enlarged upon its views as follows:
While
no court decisions directly in point have been called to our attention, text
writers on the subject are in accord with this view. ‘A worker cannot be
disqualified for refusing a job during a period in which he is not an applicant
for benefits.’ Colin, The Law of Unemployment Insurance in New York 260
(1950) ‘In general, an offer of employment may be made to a claimant at any
time. But before the refusal penalty may be imposed, it must be shown that, at
the time of the job offer, the claimant was unemployed, and had registered, and
was qualified for benefits.’ Chutroo, Suitable Work under the New York
Unemployment Insurance Law. 7, (1947)
Since claimant’s
restrictions were made known by her at the insurance office it was apparent
that she was unable to qualify for benefits and therefore there did not exist
any benefit rights from which she might be disqualified.
The initial
determination of the local office disqualifying claimant from receiving
benefits effective August 5, 1960 on the ground that without good cause she
refused employment for which she is reasonably fitted by training and
experience is overruled. The decision of the referee is affirmed. (February 17,
1961)
Appealed By: Industrial Commissioner
Appellate Division
Opinion and Decision: Appeal is taken by the
Industrial Commissioner from a decision of the Unemployment Insurance Board
which held that since claimant’s claim for benefits was not sustainable, when
filed, because her unwillingness to work more than three days per week made it
impossible for her to accumulate any effective days of unemployment (Labor Law,
§§ 523; 527, subd. 3), she could not be disqualified, under subdivision 2 of
section 593 of the Labor Law, upon her subsequent refusal of employment without
good cause.
The board’s decision is
predicated in large part upon its quotation of the language that, "before
a disqualification may be imposed, benefit rights must exist from which
[claimant] might be disqualified", from our opinion in Matter of
Foscarinis (Corsi) (284 app. Div. 476, 478) in which, however,
the refusal of the offer of employment occurred before any
claim for unemployment benefits was made. The board would thus limit the
meaning of "claimant" as used in the statute (Labor Law, § 593, subd.
2) to one who has filed a "valid original claim" (this quotation in
the board’s decision being from section 527 of the statute); but
"claimant" is expressly defined by section 515 as meaning "any
person seeking benefits for unemployment." Thus, the meaning suggested by
the board is not merely at odds with the statutory definition but would ignore,
also, the common acceptation of the term as referring to one claiming benefits
to which he may or may not be entitled and thus by strained construction of
unambiguous language attach a peculiar significance to a simple term. Indeed,
in the Foscarinis case (supra), upon which the board’s
decision rests, we held the language of the statute "clear and
unambiguous" (p. 477) and in the very first sentence of the opinion
defined the question presented as "whether a refusal of an offer of
employment by a person not then claiming benefits, may be the basis
of disqualification under section 593 (subd. 2) ***when he thereafter applies
for benefits" (p. 476). (Emphasis supplied.) Here, respondent had filed,
thus becoming a "claimant," prior to the making and refusal of a job
offer. The decision necessarily implies that respondent had never been a
claimant and does not proceed upon the ground that she had ceased to be such by
reason of the original denial of benefits; but, on the contrary, seems to
recognize that her status, however defined, continued unchanged. Indeed, it was
while she, as a claimant, was continuing to report (pursuant to the
Commissioner’s direction, during the period within which application for review
could be made) and while she thus remained "within the system" (Foscarinis, supra,
p. 478), that the unemployment insurance office notified her of the offer of
re-employment.
The conclusion which we
have reached finds support in our decision in the somewhat analogous case
of Matter of King (Corsi) (278 App. Div. 1036). There,
as appears from the record on appeal, the board held that the statutory
forfeiture by reason of a willful false statement (Labor Law, §594) was
improperly imposed by the initial determination because claimant was then
ineligible for benefits because of insufficient earnings in his base year and
hence had no benefit rights which could be suspended then or in a new benefit
year. This court reversed and reinstated the initial determination, as one that
"the statute expressly permits". If the limitation "valid
original claim" did not, in King, qualify the reference to
"claimant" in section 594, certainly it may not be read into
subdivision 2 of section 593. In any event, the construction foung by the Board
in the case before us seems forced and both unwarranted and unnecessary.
The decision should be
reversed and the initial determination of the Industrial Commissioner
reinstated, without costs. (May 4, 1962)
COMMENTS
- This decision deals with a claimant who could not
accumulate effective days at the time of the refusal because of
unwillingness to work more than three days per week. However, the
principle will equally apply to claimants who are ineligible because of
other circumstances or who lack entitlement because of insufficient base
period employment.
- Different conclusions continue to apply to refusals of
employment which occur before a benefit claim was filed. (See File No.
1215,F) Under such circumstances, the individual was not a
"claimant" when he refused a job; he was at that time, to use
the Court’s language, not "within the system."
- Generally, the decision is authority for holding that,
wherever the law provides for action affecting a "claimant,"
this applies to anyone who has brought himself "within the
system" by having filed a benefit claim. It does not matter whether
such filing relates effectively to actual rights to benefits.
Index
No. 1305A.1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August
29, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
STRIKE, LOCKOUT OR OTHER
INDUSTRIAL CONTROVERSY
Suspension Period and Effective Date
Appeal Board Case Number 78,758-61 et al
BEGINNING OF STRIKE SUSPENSION PERIOD
If a strike has been
announced to become effective on a given day (e.g. "as of 7 a.m."),
such day is not included in the suspension period of Section 592.1 even if no
work is performed on that day.
Referee’s Decision: The Industrial Commissioner appeals from the
decision of the referee filed January 13, 1961 insofar as it modifies the
initial determinations of the local office suspending the benefit rights of
claimants for 49 consecutive days effective October 6, 1960, on the ground that
they lost their employment due to an industrial controversy in the
establishment in which they were employed, by making the determinations
effective October 7, 1960. Claimants appeal insofar as the referee rejected
their contention that the determinations be made effective October 10, 1960.
Findings of Fact: Claimants, production workers, were employed
in the plant of a large electrical manufacturer. Due to a cut back in
production a rotation system of layoff was instituted by agreement with the
union. Claimants were laid off for the week from October 3 to October 10, 1960.
Claimants were unable to resume their work on October 10, as scheduled, because
of a strike called at the employer’s plant by the electrical workers’ union
effective 7 a.m. on October 6, 1960. The strike was terminated on October 17.
The local office suspended the benefit rights of all claimants effective
October 6, 1960 because of loss of employment due to a strike in the employer’s
establishment. The referee sustained the determinations, as modified, so as to
make the effective dates thereof October 7, 1960.
Appeal Board Opinion and
Decision: It is not disputed
that claimants’ benefits were properly suspended due to the strike. The
Industrial Commissioner contends on appeal that the initial determinations were
correctly made effective October 6 by virtue of the following interpretation:
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 of work, such as a strike vote, was to become
effective or was only reached on that day. (Field Operations Bureau
Interpretation Service, File No. a-710-22, Special Bulletin, dated April 25,
1952.
It is contended that to
begin the suspension with the day after the strike was called, results in
effect in an extension of the suspension to seven weeks and one day. It Is
argued that the loss of employment actually occurs prior to the first day on
which no work is performed, irrespective of the time that the final decision
concerning cessation of work is made. We cannot accept these contentions.
The statute provides
that a claimant’s benefit rights "shall be suspended during a period of
seven consecutive weeks beginning with the day after he lost
his employment because of a strike." (Underscoring supplied) We have
uniformly held that a claimant’s loss of employment occurs on the day of the
commencement of the strike or on the next following day on which he performs no
work because of such strike. This method of application of the suspension of
provision of the statute received Court sanction in Matter of Birkmeyer 272
App. Div. 855, affirming Appeal Board, 13,748-46. (See also Appeal Board,
293-38; 29,810-51).
The contention of
claimants that the suspensions be made effective October 10 was likewise
correctly rejected by the referee on the authority of the above cited cases.
The initial
determinations of the local office suspending the benefit rights of claimants
effective October 6, 1960, on the ground that they lost their employment due to
a strike in the employer’s establishment, are modified to make the effective
dates thereof October 7, 1960. The decision of the referee is affirmed. (May
22, 1961)
COMMENTS
- The decision means the following:
- If, for instant, a strike has been announced to become
effective as of 7 a.m. on a Monday (prior to the beginning of the first
shift), the suspension begins to run with Tuesday and does not include
the Monday.
- If the strike lasts for more than seven weeks, the
suspension will include the Monday of the eighth week so that the
claimant cannot accumulate more than three effective days in that eighth
week.
- If the strike is terminated in the same week in which
it be came effective, for instance on the Thursday of that week, a
claimant, if unemployed on those days, is to be credited, not only with
Friday, Saturday and Sunday but also with Monday – even through he was
"on strike" on that day – and would be entitled to benefits
for one effective day.
- If a strike has been announced to become effective as
of 7 a.m. on Friday of a week, a claimant, who had been on a layoff on
the first three days of the week, may be entitled to one effective day
for which benefits are payable to him: Not only Monday, Tuesday and
Wednesday have to be considered towards the accumulation of effective
days but also the Friday, even though he was "on strike on that
day." The suspension period begins to run only with Saturday as
"the day after he lost his employment because of a strike."
Index
No. 1250F-6
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August
29, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Part-time, Offer of
Appeal Board Case Number 78,691-61
PART-TIME WORK PAYING LESS THAN BENEFIT RATE
Refusal of part-time
employment on five days a week is with good cause if claimant’s net pay
would be less than his benefit rate.
Referee’s Decision: The initial determination of the local office
disqualifying claimant from receiving benefits effective October 31, 1960 on
the ground that without good cause he refused employment for which he is
reasonably fitted by training and experience is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant is 20 years of age, single, and lives
with his parents. He maintained that his family depends upon him to contribute
to its support. Claimant was last employed as a stock clerk in a department
store for a period of five months until October 1960, at a salary of $58 for a
five-day, 40-hour week. Prior to this employment, he had worked for a jewelry
supply firm, also as a stock clerk, for five months until April 1960, at a salary
of $52 for a five-day, 40-hour week.
On October 27, 1960, the
employment office received a job order from the jewelry supply firm requesting
that the claimant be referred to it for re-employment. Claimant reported to the
employer and was offered re-employment, but only on a part-time basis for four
hours a day from 9 a.m. to 1 p.m., five days a week at the rate of $1.50 an
hour, totaling $30 a week. Although claimant initially accepted the employment
to commence on October 31, he subsequently refused the offer. Prior to the date
on which he was due to commence work, he informed the employer that he would
not accept part-time work but would be willing to work full-time. Aside from
his objection to the reduced earnings entailed in the part-time job, claimant
objected that if he had accepted such employment from 9 a.m. to 1 p.m., it
would not have permitted him to seek employment at a time when most jobs are
obtainable. Claimant’s benefit rate is $28 a week.
On December 1, 1960
claimant secured employment in a department store at the rate of $1.10 an hour
for a five-day, 40-hour week.
Appeal Board Opinion and
Decision: The referee in
overruling the initial determination relied upon Appeal Board, 73,167, in which
we adopted the opinion of the referee as follows:
Claimant
refused the employment with good cause. This is not the case of a claimant who
rejects part-time work for several days a week, but which would permit that
claimant to obtain partial unemployment insurance benefits. Such rejection of
such part-time work would be without good cause. In the case herein, however,
the employment offer to claimant was for five days a week, and would not permit
her to supplement the lower wage received from such part-time work with partial
unemployment insurance benefits. Considering the expenses to be incurred by
claimant and the deductions from her wages, acceptance of this employment would
constitute a hardship upon her. Claimant at all times was a full-time worker
and desired full-time employment.
We conclude that the
referee was correct in his disposition of the case and that the cited precedent
controls.
The Industrial
Commissioner in his statement on appeal relies upon Matter of Krieger,
279 App. Div. 681, reversing Appeal Board, 25,001. However, our decision in Appeal
Board, 79,057 distinguishes the Court’s decision in Matter of Krieger,
as follows:
In
our original decision, we reversed the decision of the referee on the authority
of Matter of Krieger, 279 App. Div. 681, reversing Appeal Board,
25,001-50. In that case and in Matter of Gadd, 278 app. Div. 1035,
reversing appeal Board, 23,389-50, it was held that refusal of part-time
employment solely because of a desire for full-time work is without good cause.
In each of such cases, however, the employment offered would have enabled the claimants
to accumulate credit for partial unemployment benefits. Accordingly, in Matter
of Krieger, supra, the Court adverted to the provisions for
partial benefits.
Upon
further review of the matter, we are satisfied that the facts in the instant
case, are distinguishable from each of the foregoing cases in that there,
claimant could not qualify for any partial unemployment benefits. By
working for part of each of four days in a week, claimant could not accumulate
any effective days and, therefore, her earnings from the part-time employment
would not be supplemented by any unemployment compensation. Moreover, in
the absence of any partial benefits, acceptance of the offered employment would
result in the receipt by claimant of less money than she would have received if
she were totally unemployed. (Underscoring supplied)
We arrived at a similar
conclusion in Appeal Board, 77,724, where the claimant was offered part-time
employment two or three hours a day on five days a week. We point out that in
this case also, claimant was offered part-time employment on five days a week.
The Industrial
Commissioner also argues on appeal that by the acceptance of part-time
employment, claimant would still have ample opportunity to seek other
employment at 1 p.m. we believe that the claimant’s answer to such contention
is well taken; namely, that the acceptance of employment in the morning hours
would not permit him to seek employment at a time when most jobs are
obtainable. We are dealing here with a semi-skilled occupation, and it is a
matter of public knowledge that such jobs are best obtainable in the morning to
suit employers’ convenience.
We hold that upon all of
the grounds set forth herein as well as the reasoning set forth in Appeal
Board, 79,057, 77,724 and 73,167, claimant had good cause under the
Unemployment Insurance Law to refuse the offer of part-time employment.
The initial determination
of the local office disqualifying claimant from receiving benefits on the
ground that without good cause he refused employment for which he is reasonably
fitted by training and experience, is overruled.
The decision of the
referee is affirmed. (August 11, 1961)
DISSENTING OPINION
I am not in accord with
the majority decision for the following reasons:
- The "Net Pay Test," invoked by the majority,
is in my view, an unwarranted extension of our decision in appeal board,
77,724-60; applying such test to the particular facts and circumstances
involved in similar instances of refusals of employment would create
inequities and serious difficulties.
The
gross pay of a job is identical, irrespective of the personal circumstances of
the particular workers, but the net pay of each unemployment insurance claimant
depends upon various factors which differ in each instance, such as, the number
of dependents, fringe benefits, tax deductions, etc. Thus, if the majority
decision herein were to govern and perforce be applied, it would be necessary
to calculate the net pay of the claimant involved, giving due effect to all the
factors to which I have referred.
To
apply the rule enunciated by the majority would necessarily provide the
unmarried worker, with no dependents with good cause to refuse a job, whereas,
the worker with dependents would not have that protection because his gross pay
would exceed his benefit rate since the amount of deductions, which is made
from a worker’s gross pay, depends upon the number of his dependents in
computing the tax deductions and hospitalization insurance premiums. An
unmarried claimant with no dependents, because of such deductions, would have a
lower net pay than would be the case of a married worker with dependents
earning the same gross pay.
It
would be hopelessly lost in the maze of circumstances quite unrelated to the
concepts which have heretofore been considered in connection with the granting
or withholding of benefits, circumstances which in my view have no good reason
to require consideration.
In
Appeal Board, 77,724 we held that a claimant who could earn only $21 a week for
part-time work, as against her benefit rate of $25, had good cause to leave her
job. The principle established was that a claimant whose earnings are substantially
less than his benefit rate should not be disqualified for leaving his
employment. I am in full agreement with this principle. However, I do not
believe that we should go beyond that. In the case before us, claimant’s weekly
earnings would exceed his benefit rate by $2.
In
Appeal Board, 79,057-61A we used as a criterion, the relationship of the net
pay to the benefit rate. There, the benefit rate was $35, the gross earnings in
part-time employment $38, and the net or take home pay, somewhat less than the
benefit rate. However, upon careful reconsideration I believe the "net
pay" concept is erroneous. The only sound test to apply is a comparison of
the gross pay offered to the benefit rate. In the absence of undue hardship or
other factors, if the gross pay for the offered part-time employment is equal
to, or exceeds the benefit rate, then the wage offered is not inadequate.
- Moreover, in my judgment, the majority decision fails
to conform with the principle enunciated by the Appellate Division in the Matter
of Krieger, 279 app. Div. 681, reversing Appeal Board, 25,01-60. There
the Court stated in reversing the Board.
Affirmance
thereof would establish the principle that an unemployment claimant may refuse
any work offer in which he or she is not to be employed for a full week. There
is no such requirement in the statute, and indeed, it is inconsistent with the
provisions of the statute for compensating partial unemployment.
The
Court so held despite the fact that the claimant therein involved, was offered
five or six hours of employment per day for three or four days a week.
- The conclusion of the majority that acceptance of
part-time employment (mornings) would have practically deprived claimant
of the opportunity of obtaining full-time work, and that he was therefore
justified in refusing the former, fails to appraise realistically labor
market conditions in the City of New York, where many large employers of
labor, including department stores, maintain employment or personnel
offices which receive job applicants during the entire business day.
Claimant is 20 years of age and his work experience has been as a stock
clerk in department stores. Claimant would have had ample opportunity to
seek employment during the afternoons.
I, therefore, vote to
reverse the referee’s decision herein and hold that the initial determination
disqualifying claimant from receiving benefits because he refused employment
without good cause, should be sustained. (August 11, 1961)
COMMENTS
The principle here
stated is similar to that reported in release No. A-750-1541. However, in that
case no distinction was made between part-time net or gross earnings; the broad
term "earning" was used. The principle in that case (see comments)
still prevails but the term "net earnings" is the determining factor
rather than gross earnings.
Index
No. 1420-12
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August
30, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous Employments
Appeal
Board Case Number 81,513-61
QUESTION OF TOTAL UNEMPLOYMENT OF SELF-EMPLOYED PERSON DURING
SLACK SEASON
Claimant who is
self-employed in a substantial continuous business (Mason Contractor) is not
totally unemployed during a slack period when no active operations are
performed and during which time he continued to promote the interest of his
business. (Operations ceased during the winter months because of inclement
weather and claimant sought but was unable to procure inside jobs.)
Referee’s Decision: The initial determination of the local office
holding claimant ineligible to receive benefits effective January 23, 1961, on
the ground that he was not totally unemployed is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant was employed as a mason for seven
months until July 1960. Except for this period of employment, claimant has been
self-employed during the past six years as a mason contractor. He owns and uses
in his business, equipment worth approximately $4,000. From July 1960, when his
employment was terminated, until December 15, 1960, claimant was actively
engaged in his own business. On the latter date, he was compelled to cease
operations because of the inclement weather.
Claimant filed for
benefits effective January 23, 1961. During the next few months he sought but
was unable to procure jobs which could be done inside. On April 3, 1961,
claimant resumed work in his own business on several unfinished contracts.
Appeal Board Opinion and
Decision: We do not agree
with the referee that claimant was totally unemployed because he performed no
services in connection with his own business during the period for which he
claimed benefits. The record establishes that claimant had been self-employed
for many years and that he had been engaged in his own business for several
months before the cold weather compelled him to cease operations. Claimant was
prepared to resume his business operation if he could obtain contracts for work
that could be done inside. He sought such work but did not obtain any. Since
claimant continued at all times during the period in issue to promote the
interest of his own business, he was not totally unemployed.
The cases cited in the
referee’s decision do not support his decision. The facts in Appeal Board,
71,222 are clearly distinguishable in that claimant in the instant case, was
engaged in operating his self-employed venture on a continuous basis. He
continued to be so engaged even during the slack period.
The initial
determination of the local office holding claimant ineligible to receive benefits
effective January 23, 1961, on the ground that he was not totally unemployed,
is sustained. The decision of the referee is reversed. (July 27, 1961)
(Resettled August 14, 1961)
COMMENTS
This decision should be
distinguished from those cases where the business is not substantial or is not
conducted on a continuous basis or where claimant does not devote substantial
time or render substantial service in connection with the business.
The case cited by the
Board (A.B. 71,222-59) and where a different conclusion was reached, involved a
part-time licensed undertaker who operated from his home. He did not conduct a
"going business on a continuous basis nor devote substantial time or
render substantial services in connection with the business." The facts showed
that he conducted only three funerals during the prior year and, immediately
prior to filing for benefits, he was employed as a personnel director by a
contracting company for about 13 months.
In determining the total
unemployment of self-employed claimants, including partnership, etc., it would
appear appropriate to use standard similar to those used in determining the
eligibility of corporate officers during slack seasons. However, in the instant
case it should be noted that claimant "continued to promote the interest
of his business."
Index
No. 1290A-12
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September
21, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Wages – General
Appeal Board Case Number 81,940-61 et al
REFUSAL - BASE PERIOD EMPLOYER AT WAGES BELOW PREVAILING
Even though the employer
is a base period employer and the wages are the same as those previously
received, a claimant has good cause to refuse employment in his former job when
the offered wages are substantially below prevailing and the principle that
substandard wages do not generally constitute good cause for a voluntary
leaving of employment does not apply to cases of recall after separation.
Referee’s Decision: The initial determinations of the local
offices holding claimants eligible to receive benefits, effective the dates set
forth in the respective initial determinations, without disqualifying
conditions and overruling the employer’s objections thereto are sustained.
Appealed By: Employer
Findings of Fact: Claimants were employed as uniformed guards by
a detective and guard service agency at a starting wage of $1.08 or $1.14 an
hour, except that claimant C.W.K., Jr. received $1.24 hourly as a uniformed
guard sergeant. Claimants’ duties consisted of safeguarding the property of the
employer’s clients. Claimants A.F. and A.A.R. received increases in pay to
$1.21 and $1.14 an hour respectively.
The respective claimants
voluntarily left their employment primarily because of dissatisfaction with
their hourly rate of pay. All of the claimants except D.Y. and C.W.K., Jr.,
were offered re-employment but refused because of the insufficiency of wages. After
leaving employment by the employer herein, claimant W.H.S. obtained employment
as a guard at the United Nations at a basic hourly wage of $2; claimant T.R.G.
obtained employment as a loader for a parcel delivery service at an hourly wage
of $1.99 and Claimant A.A.R. obtained employment in the post office at
commensurate pay. The offers of re-employment by the employer herein were made
after each of such claimants had lost the subsequent employment.
According to a wage
survey conducted by the United States Department of Labor, Bureau of Labor
Statistics dated April 1960 (Bulletin No. 1265-44, page 14), the average hourly
earnings of 4,389 guards employed in the locality were $1.82 during the period
involved, with a breakdown as follows:
|
Industry |
No. of Workers |
Average Hourly Earnings |
|
Manufacturing |
597 |
$2.08 |
|
Non-Manufacturing |
3792 |
1.78 |
|
Public Utilities |
255 |
2.27 |
|
Retail Trade |
101 |
1.70 |
|
Finance |
1863 |
2.04 |
|
Services |
1571 |
1.39 |
The following is a
further breakdown of the straight-time hourly earnings of the total number of
guards covered by the foregoing wage survey:
|
Number of Workers |
Straight-Time Hourly Earnings |
|
|
1357 |
$1.00 to 1.60 |
|
|
114 |
1.60 to 1.70 |
|
|
194 |
1.70 to 1.80 |
|
|
293 |
1.80 to 1.90 |
|
|
353 |
1.90 to 2.00 |
|
|
891 |
2.00 to 2.10 |
|
|
448 |
2.10 to 2.20 |
|
|
332 |
2.20 to 2.30 |
|
|
407 |
2.30 or over |
|
|
Total |
4389 |
In an explanatory
written statement accompanying the foregoing Federal wage survey, among others,
the United States Department of Labor, Bureau of Labor Statistics has advised
that data was obtained by personal visits of Bureau field economists to representative
establishments within six broad industry divisions, that the occupations
selected for study are common to a variety of manufacturing and
non-manufacturing industries and that each occupational classification is based
on a uniform set of job descriptions which is designed to take account of
inter-establishment variations in duties within the same job. The job
description of a guard contained in the appendix to the foregoing Federal wage
survey, among others, is a person who "performs routine duties, either at
fixed post or on tour, maintaining order, using arms or force where necessary.
Includes gatemen who are stationed at gate and check on identity of employees
and other persons entering, "and the job description of a watchman set
forth in the aforementioned appendix is a person who "makes rounds of
premises periodically in protecting property against fire, theft, and illegal
entry." According to a Federal wage survey dated April 1960, the average
straight-time hourly earnings of 2459 watchmen employed in the locality were
$1.83 during the period involved (Bulletin No. 1265, page 15, United States
Department of Labor, Bureau of Research Statistics). The foregoing wage survey
showed that 1319 watchmen earned at least $1.80 an hour and the vast majority earned
a greater hourly sum.
On the credible evidence
and testimony in the record including the foregoing wage surveys conducted by
the Bureau of Labor Statistics of the United States Department of Labor, we
find that the majority of guards employed in the locality during the period
involved received a basic hourly wage of at least $1.80.
Appeal Board Opinion and
Decision: On the basis of the
facts found as herein above set forth, we conclude that $1.80 an hour
represents the prevailing wage for the work involved herein and that the wages
paid to those claimants who left the employment and the wages offered to those
claimants who refused offers of re-employment were substantially less favorable
to them than the wages prevailing for similar work in the locality.
The employer contends
that guards or watchmen employed by detective and guard service agencies in the
locality should be treated separate and apart from guards or watchmen employed
in all other industries, at least for the purpose of determining prevailing
wages. For a number of reasons, we overruled such contention raised by the same
employer in Appeal Board, UCX-16-61 which is incorporated herein by reference
as though fully set forth. Moreover, the precise question was considered by the
Court in Matter of Shotkin, 10 App. Div. 2d 738, reversing Appeal
Board, 63,045-58, where it was stated that "certainly in a case such as
this, involving work of a nature utilized in all industries, the determination
of prevailing rate under subdivision (d) is not to be reached upon the
application of so narrow a test as that afforded by a particular industry;
absent proof of some unusual or exceptional factor or condition."
The record contains no
cogent and convincing proof of any unusual or exceptional factor or condition
which would warrant a deviation from the principle enunciated in Matter
of Shotkin, supra. The business of the employer is analogous to
that of agencies engaged in furnishing temporary or permanent office workers,
such as clerks, typists, stenographers, secretaries, bookkeepers and
receptionists. In no case has it been suggested to us that such agencies
compose a separate and distinct industry which is privileged to fix a so-called
prevailing wage based solely upon salaries paid by them to office workers and
without taking into consideration the actual prevailing wages for all such
workers in the locality. To accept the employer’s concept that there is, or
should be, a prevailing wage applicable solely to guards or watchmen employed
in detective and guard service agencies, as distinguished from guards or
watchmen employed in all other industries, would inevitably result in
depressing wages of workers in the former category. Such a result would violate
the clear purpose and intent of Section 593.2(d) of the Law and would also be
contrary to the rule established in the Shotkin case, supra.
Inasmuch as the
claimants were offered re-employment with their former employer at wages which
were approximately 30 percent below those prevailing for similar work in the
locality, we hold that the offered wages are substantially less favorable to
the claimants than those prevailing for similar work in the locality (Appeal
Board, 74,299-60; 71,720-59; 59,573-57; 59,248-57; 57,381-56). That claimant
W.H.S. obtained employment in the locality as a guard with an international
organization at an hourly wage of $2 (almost double the wage offered to
claimant by his former employer) is a further indication of the disparity of
the offered wages.
Nevertheless, we agree
with the contention of the employer that claimants (except W.H.S., T.R.G. and
A.A.R. who were not last employed by the employer) voluntarily left their
employment without good cause, irrespective of whether their wages were
substantially below those prevailing for similar work in the locality. The
following reasoning of the Court in Matter of Sellers, 13 App. Div.
2d 204, reversing Appeal Board, 70,414-59 applies:
…Claimant
is not entitled to benefits after a voluntary separation from employment solely
because of dissatisfaction with wages, even if they were less than the
prevailing wage, unless he comes within the literal terms of an exception
contained in Section 593, subdivision 1(a) …No circumstances whatever
"developed in the course of such employment" which would have
justified claimant in refusing the employment in the first place. His wages
were not reduced during the employment, they were raised. If we assume his
wages were sub-standard when he quit, they were sub-standard when he took the
job. Nothing "developed in the course of such employment" which would
justify a refusal of the job in the first instance, and we may not ignore those
plain words in the statute. To hold otherwise would permit an employee, fully
aware of the wage to be paid, to take a job and use that job for the necessary
qualifying period of employment, and then, for no reason not present in the
first instance, voluntarily quit and receive unemployment insurance benefits.
Such an interpretation is unrealistic and entirely beyond the real purpose of
the statute.
We do not agree,
however, with the contention of the employer that those claimants who refused
the offers of re-employment lacked good cause, irrespective of whether the
offered wages were substantially below those prevailing for similar work in the
locality. The employer argues that the provisions of Section 593.2(d) of the
Unemployment Insurance Law do not apply to a base period employer but only to
all other employers. Such an interpretation appears to be wholly unwarranted
and contrary to the plain language and clear intent of the statute, which makes
no differentiation whatsoever between a base period employer and other
employers.
The application of the
employer for a consolidation of these cases because they involve a common
factual situation and similar issues, is granted.
The initial
determinations of the local offices holding claimants A.F., D.Y., J.F.M. and
C.W.K., Jr. eligible to receive benefits without disqualifying conditions are
overruled, because they voluntarily left their employment without good cause.
The initial
determinations holding claimants W.H.S., T.R.G. and A.A.R. eligible to receive
benefits without disqualifying conditions remain in effect, because they
refused employment with good cause.
The decision of the
referee filed on April 27, 1961 (as to claimants W.H.S., A.F. and D.Y.) is
modified accordingly. The decisions of the referee filed on April 25 and May 5,
1961, respectively (as to claimants T.R.G. and A.A.R.) are affirmed. The
decisions of the referee filed on April 27 and May 18, 1961, respectively, (as
to claimants J.F.M. and C.W.K., Jr.) are reversed. (September 1, 1961)
COMMENTS
The other principles
which the decision reflects are not new, and no specific method for
establishing the prevailing rate of wages is enunciated in the decision.
The principle that
prevailing wages for a common occupation are as a rule to be determined on an
all-industry basis, rather than on the basis of the wage scale for the
occupation in a particular segment of industry, has been reported in Release
A-750-1517; (Matter of Shotkin).
The principle that
refusal of a recall to a job may result in a disqualification, although the
claimant had previously left the same job voluntarily, has been reported in
Release No. A-750-1101; (Matter of Crowe).
The principle that
substandard wages are generally not grounds for holding that a quit is with
good cause has been reported in Release A-750-1550; (Matter of Sellers).
Index
No. 1320C-11
1320D-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
October
5, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Lack of Work or Industrial Controversy, Question of
Appeal Board Case Number 82,557-61 et al
LAYOFF PRIOR TO STRIKE – GRADUAL SLACKENING OF OPERATIONS
QUESTION OF WHETHER LOSS OF EMPLOYMENT IS DIRECTLY ATTRIBUTABLE TO
STRIKE
- If an employer decides to cease operations during
negotiations for a new union contract because the union threatens a strike
and refuses to give assurance of continued processing of material which is
subject to spoilage, workers who are laid off for this reason are subject
to the suspension provisions since the economic pressure so applied means
that there is an industrial controversy within the meaning of the Law
(Distinguished from Matter of Keane, A-750-1428).
- Even though the employer has work available for them,
the suspension provisions apply to non-striking workers (i.e., maintenance
men, office staff) who are laid off because continuation of their
operations is not feasible for reasons created by a strike, such as lack
of heat as a result of non-delivery of fuel oil due to picketing.
(Distinguished from Matter of Wentworth, A-750-1553).
Appeal Board Decision
These are cross appeals.
Claimant, M.C. and other claimants covered by a stipulation herein, production
workers similarly situated, appeal from the decision of the referee filed June
2, 1961 insofar as it sustained the initial determinations of the respective
local offices suspending the accumulation of their benefit rights during a
period of seven consecutive weeks effective the day after the dates of the loss
of their respective employments, on the ground that they lost their employment
because of an industrial controversy in the establishment in which they were
employed.
The Industrial
Commissioner appeals from the decision of the referee insofar as it overruled
the initial determinations of the respective local offices suspending the
accumulation of the benefit rights of claimant A.B. and other maintenance
workers similarly situated and of T.B.S., payroll clerk, during a period of
seven consecutive weeks effective the day after the dates of the loss of their
respective employments, on the ground that they lost their employment because
of an industrial controversy in the establishment in which they were employed.
Combined hearings were
held before the referee at which all parties were accorded a full opportunity
to be heard and at which a number of claimants, their witness, representatives
of and an attorney for their unions and representatives of the employer and of
the Industrial Commissioner appeared and testimony was taken. The Board
considered a brief submitted on behalf of the Industrial Commissioner and
written statements submitted by claimants on appeal. Based on the record and
testimony in this case, the Board makes the following
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:
Hearings
were held at which claimants, with the exception of L., representatives of two
unions, the attorneys for one of the unions representing some of the claimants,
witnesses in behalf of claimants and representatives of the employer and of the
Industrial Commissioner appeared. Testimony was taken.
Claimants
filed their respective claims for benefits between January 16, 1961 and
February 20, 1961. By initial determination their respective benefit rights
were suspended for seven consecutive week periods commencing with various dates
between January 13, 1961 and February 16, 1961, because of loss of employment
due to a strike, lockout, or other industrial controversy in the establishment
in which they were employed.
The case
of claimant M.C., who was a production worker, and the case of A.B., who was a
maintenance worker, have been selected as test cases because they wee deemed
typical of the situation and issues involved in the cases of a number of other
production workers and maintenance workers who were employed in the same plant
of the employer. It was stipulated and agreed by representatives of the
production workers’ and maintenance workers’ unions and by representatives of
the employer and of the Industrial Commissioner, that the decision in the cases
of C. and B. shall apply to the cases of the other production and maintenance
workers, without notice of hearing or further proceedings therein, subject to
each claimant’s right of appeal.
Claimant
L., who was employed as a chauffeur, defaulted in appearing at the hearings and
was not represented at the hearings by any union or otherwise. He is not
covered by the above-mentioned stipulation.
The
employer operates a plant for the manufacture of foam rubber cushions, pillows
and mattresses. Its production workers are members of Local 14-579 of the Oil,
Chemical, and Atomic Workers International Union. Its maintenance workers are
members of Local 30 of the International Union of Operating Engineers.
The
employer’s contract with the Production Workers’ Union expired on December 31,
1960. Negotiations were being held to attempt to agree upon a new contract. No
such agreement was reached by December 31, 1960, and at the request of the
employer, the union extended the contract for two weeks until January 15, 1961,
while negotiations continued. By January 10, the employer and the union were
still unable to agree upon the terms of a new contract. The union scheduled a
meeting of its members for January 15, to take a strike vote. On January 10,
the employer was contemplating ordering additional raw materials to continue
steady production beyond January 15. However, before doing so, it asked the
union for an assurance that there would be a further extension of the contract
beyond January 15, if their points of difference were not reconciled by that
time. The union refused to give any such assurance to the employer. The process
for the manufacture of the employer’s foam rubber products requires three days to
complete. Once the process is commenced, if an interruption should occur, the
materials being processed would be ruined. To avoid the risk of spoilage of
materials if a strike were to occur on January 15, and because the union had
refused to assure the employer of continued operations beyond the work-week
ending Friday, January 13, the employer refrained from ordering new raw
materials for manufacturing operations and decided to merely continue
production until its supply of raw materials on hand was exhausted. The
employer could have obtained a delivery of additional raw materials on hand was
exhausted. The employer could have obtained a delivery of additional raw
material overnight if it were assured that a strike would not be voted on
January 15, to prevent continued operations. On Thursday, January 12, the
supply of raw material on hand was finished, and further production operations
necessarily ceased. Accordingly, approximately 22 of the 29 production workers,
including claimant C. were laid off on that day. The remaining seven production
workers were permitted to come in on January 13 to clean up, and they were laid
off at the end of that day. On Sunday, January 15, a strike of the production
workers occurred and a picket line set up. The controversy ended on March 17,
1961.
The
maintenance workers and their union were not involved in the controversy. They
did not strike. On the contrary, they crossed the picket line of the production
workers and continued to work through January 20, when they were laid off by
the employer because its fuel oil supply was exhausted and the premises were
without heat. The maintenance workers were willing to continue working beyond
January 20, even though the premises were unheated, but the employer would not
agree to this because the weather was intensely cold and it feared that the
sprinkler system might freeze and be damaged. Accordingly, the employer laid
off all the maintenance workers on January 20, after having the sprinkler
system emptied and disconnected to prevent freezing. The employer admitted that
despite the strike of the production workers there was plenty of work for the
maintenance men beyond January 20, and that were it not for the lack of heat in
the premises, it would have kept the maintenance men working beyond that date.
The employer normally obtained its fuel oil from an outside oil company wholly
removed from the employer’s premises. The fuel oil was normally used to produce
heat necessary in the manufacturing operation, in addition to supplying heat for
the building. Because of the production workers’ picket line, the employer was
unable to obtain fuel oil from its usual supplier to heat its building after
the production workers’ strike began on January 15.
Claimant
T.B.S. was a payroll clerk in the employer’s office. She was not in any union,
nor was she involved in the controversy between the production workers and the
employer. She crossed the picket line and continued working after the strike
began until January 20, when she was laid off by the employer because of lack
of heat in the premises. If there had been heat, she would have continued on
the job despite the strike of the production workers.
Opinion: While we have adopted the referee’s findings
of fact, we are not in accord with the conclusions he reached therefrom.
We are in accord with
the referee’s conclusion that the evidence clearly establishes that all of the
production workers lost their employment because of an industrial controversy
in the establishment in which they were employed. We agree with his conclusion
that the fact that the production operations ceased a few days before the
strike because the employer’s supply of raw material was exhausted does not
take the case of the production workers outside the scope of Section 592 of the
Unemployment Insurance Law.
The evidence establishes
that the employer allowed his supply of raw materials to become depleted and it
did not order new supplies solely because of its apprehension and anticipation
of a strike by the production workers. Its fears of a strike scheduled for
January 15 were confirmed on January 10, when the production workers’ union
refused to grant the employer an extension of negotiations beyond January 15.
At that time, negotiations between the employer and the union representing the
production workers were stalemated. It is immaterial that economic reasons may,
in part, have motivated the employer’s actions. The basic reason for the loss
of employment by the production workers cannot be ascribed to a lack of work in
the usual economic sense, but was due to an actual and real existence of an
industrial controversy leading to suspension of operations by the employer.
We are not unmindful of
the decision of the Courts in Matter of Keane, et al, 6 N.Y. 2d
910, affirming 2 App. Div. 2d 148, affirming Appeal Board, 47, 366-54, which is
distinguishable from this case. In Matter of Keane, the employer
laid off some workers (not its entire force) because of a shortage of work
caused by the fact that the employer did not accept new work from its customers
in apprehension that pending negotiations with the union involved might result
in a strike.
However, despite the
employer’s fears, no strike ever eventuated. In fact, work at the employer’s
establishment and negotiations with the union proceeded during the entire
period in question peacefully and without appreciable incident until a
successful conclusion. The Courts sustained the Board’s finding that no strike,
lockout or other industrial controversy ever existed. In this case, the threat of
a strike was not only real, but immediately ripened into an industrial
controversy attended by picketing. The timetable of events is significant to
support this conclusion. The contract with the production workers’ union
expired December 31, 1960. Negotiations prior thereto for a new contract failed
to achieve that result. By mutual consent, the contract was extended to January
15, 1961, while negotiations continued. On January 10, the employer asked the
union for assurance of a further extension of the contract beyond January 15,
so that it could order additional raw materials to continue steady production
beyond January 15. The union refused to given such assurance. Since it took a
minimum of three days to process the employer’s products, and since materials
in process would be ruined if a strike were to occur on January 15, and since
the union refused to assure the employer of continued operations beyond the
week ending Friday, January 13, the employer refrained from
ordering new raw materials and decided to continue production only until its
supply of raw materials was exhausted. On Thursday, January 12, the
supply of raw materials was exhausted and production ceased, whereupon 22 of
the 29 production workers were laid off. The remaining seven production workers
worked on Friday, January 13 to clean up and when this assignment
was completed, they were laid off at the end of that day. The strike commenced
and a picket line was set up on Sunday, January 15.
Unlike the situation
in Matter of Keane, there was not merely the threat of a strike but
the layoffs were the direct result of the union’s refusal to continue the
extension of a contract and its refusal to assure the employer of continued
operations beyond January 13 which would have permitted the continued
processing of the employer’s materials. These refusals on the part of the union
was part of its plan of economic pressure to compel the employer to renew the
contract between them and were in keeping with its intention to strike on
January 15, when the extension of the contract expired. These refusals on the
part of the union were just as much a part of the industrial controversy
between it and the employer as was the picket line, which was, set up
immediately before a new workweek could commence. It is therefore clear that
the production workers lost their employment directly because of an industrial
controversy in the establishment in which they were employed.
We are also not
unmindful of our decision in Appeal Board, 65,403 where the facts also were markedly
different. In that case, the employer, a dress contractor, was not furnished
with work by its jobber because the jobber feared the outbreak of a strike in
the industry. Accordingly, as each claimant completed the work on hand, he was
laid off by his employer. When the industry wide strike took place later, the
claimants therein had already been laid off because of lack of work. Relying
upon the Court’s decision in Matter of Keane, we held that
claimants’ unemployment resulted from a lack of work, a condition which
resulted from the fact that the claimants’ employer was not furnished with work
from an outside source. Unlike the situation in this case, the union involved
was not asked to permit its members to continue operations while the
negotiations for a new contract were continued. The lack of work in the dress
industry was occasioned solely by the exercise of the prerogative of the jobber
not to supply materials to the contractor so that financial loss would be
minimized when and if a strike eventuated. In this case, when the strike
commenced on January 15, 1961, the production workers had been laid off solely
because the union exercised its prerogative to refuse to allow the workers to
continue on the job while negotiations continued and to refuse to extend the
contract. These refusals were a manifestation of the industrial controversy
precipitated by the production workers’ union, and we must hold that the loss
of employment by the production workers was due to such industrial controversy.
We are not in accord
however with the referee’s disposition of this case with respect to the
maintenance workers and the payroll clerk. The referee concluded that Matter
of Wentworth, 10 N.Y. 2d 13, affirming 10 App. Div. 2d 504, affirming
appeal Board, 65,794 was authority to allow the claim for benefits by the
maintenance workers.
Matter of Wentworth is not in point. The claimants there were
employed as carpenters and timbermen by a construction firm. An industry-wide
strike was called by a teamsters’ union. As a result, the truck drives of the
concern from which the employer obtained its concrete and the drivers of some
of the employer’s dump trucks went on strike. Since there were no deliveries of
concrete necessary for such claimants to continue work, they were accordingly
laid off. The evidence therein also indicated that unfavorable weather
conditions were a factor in the employer’s decision to curtail its operations.
The Court held that such claimants’ loss of employment occurred because of a
combination of unfavorable weather conditions and the strike, not by its
employees, but by the employees of the employer’s suppliers. The rationale of
that decision was that the provisions of Section 592.1 are not applicable where
the claimants’ loss of employment was not attributable to the participation of
the employer's’ truck drivers in the teamster strike and that the industrial
controversy which gave rise to the layoff did not occur in the establishment in
which such claimants were employed.
The loss of employment
by the payroll clerk and maintenance workers was directly attributable to an
industrial controversy in their place of employment. The maintenance workers
were employed by the same employer and worked in the same industrial
establishment as the striking production workers. The following language of the
Court in Matter of Lasher, 279 App. Div. 505, reversing Appeal
Board, 22,171 is particularly pertinent:
Under
the unemployment insurance law adopted in this State, it is of no consequence
whatever that claimants were not on strike; that they were not aiding the
strike, financially or otherwise; 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…
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.
Accordingly, we deem it
immaterial that there was no dispute between the employer and the maintenance
workers’ union or between the employer and the payroll clerk and that they were
not directly involved in the production workers’ strike. We do deem material
that fact that as a result of the strike by the production workers and the
establishment of picket lines by them, the employer could not obtain the
materials requisite for it to continue the operation of its plant and office.
The fact that the employer could not obtain deliveries of fuel oil to heat its
premises and consequently could not continue its operations were the direct
consequence of the industrial controversy initiated and continued by the
production workers. The work which the maintenance workers and the payroll
clerk performed was as essential to the manufacture of the employer’s product as
was the work of the production workers. The closing of the plant stemmed
directly from the effective economic weapon of the striking workers directed
against the employer. To ignore the direct link in the chain of causation
between the strike and the cessation of operations by the employer would be to
ignore the realities of the situation.
We hold that all of the
claimants herein lost their employment as a result of an industrial controversy
in their establishment within the meaning of Section 592.1 of the Law.
Decision: The initial determinations of the respective
local offices suspending the accumulation of benefit rights by claimants during
a period of seven consecutive weeks effective the day after the dates of their
respective losses of employment because of an industrial controversy in the
establishment in which they were employed are sustained. The decision of the
referee is modified accordingly and, as so modified, is affirmed. (September
25, 1961)
COMMENTS
This decision is
self-explanatory. The court decisions cited by the Board were released in the
Interpretation Service as follows: Matter of Keane (A-750-1428); Matter
of Wentworth (A-750-1553)
Index
No. 1740A-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November
9, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Wages – Insufficient
Appeal Board Case Number 82,614-61
VOLUNTARY LEAVING OF EMPLOYMENT – WAGES; MINIMUM WAGE LAW
Leaving employment
because of insufficient wages is with good cause if the wages are less than
those prescribed by a Minimum Wage Law since under such circumstances Matter
of Sellers (A-750-1550) is not applicable.
Referee’s Decision: The referee overruled the initial
determination of the local office holding claimant eligible to receive benefits
effective January 23, 1961, without disqualifying conditions and sustained the
employer’s objections to the payment of benefits to claimant on the ground that
claimant voluntarily left his employment without good cause.
Appealed By: Claimant
Findings of Fact: Claimant was employed on or about May 15,
1959, by a company which operated a cigar and novelties store as a watchman and
general helper. He was a part-time worker, working at least four hours a day at
a salary of $20 per week. During the month of December 1960 claimant was
informed by a customer that he was receiving less wages than the New York State
Minimum Wage Law permitted. On January 3, 1961 claimant filed a claim with the
Department of Labor for back salary pursuant to the terms of the Minimum Wage
Law and an investigation was made of the employer’s books and records. Claimant
thereafter instituted a civil action against the employer to recover the sum of
$2,600 allegedly due him as the difference between the weekly pay he received
and the legal minimum wage to which he was entitled. This action was thereafter
compromised and settled for the sum of $450 which the employer paid him. The
employer conceded that the salary paid to claimant was less than the Minimum
Wage prescribed by Law.
Claimant’s last day of
employment was January 9, 1961. He filed a claim for benefits effective January
23, 1961. He informed the insurance office that he lost his employment because
the employer discharged him when he refused to sign a statement for the
Department of Labor certifying that he had worked only three and one-half hours
a day. In response to an inquiry from the insurance office, the employer
reported that it did not discharge claimant, but that he left of his own accord
without previous notice.
Appeal Board Opinion and
Decision: Even if we were to
accept the employer’s version of the facts, there would be no basis for
concluding that claimant left his employment without good cause. The evidence
establishes that claimant had good cause to leave the job since he was not
required to continue to work for a salary which concededly was less than the
minimum prescribed by Law.
The employer contends
that claimant lacked good cause to leave his employment, because the salary was
the same at which he was hired. The employer further contends that under the
authority of Matter of Sellers, 13 App. Div. (2d) 204, reversing
Appeal Board, 70,414, since nothing occurred during the course of claimant’s
employment which would have justified his refusal to accept the employment in
the first instance, the leaving of his employment is without good cause. Such
contentions lack validity.
Matter of Sellers is not applicable to the facts in this
case since it has here been established that claimant and the employer entered
into a contract of hire which was illegal and contrary to public policy in that
it provided for the payment of a wage less than that prescribed by the Minimum
Wage Law. The Court, in its decision in Matter of Sellers, supra,
did not contemplate that the principles therein enunciated should apply to an
illegal contract of hire.
Under the mandate of the
Legislature, the Department of Labor prescribed a minimum wage to be paid to
employees in this state and it would indeed be anomalous to rule that a worker
who refuses to work at a lesser wage lacks good cause for refusal.
Accordingly, we conclude
that the circumstances under which claimant’s employment terminated did not
produce any disqualifying conditions.
The initial
determination of the local office holding claimant eligible to receive benefits
effective January 23, 1961, without disqualifying conditions is sustained. The
objections of the employer are overruled. The decision of the referee is
reversed.
COMMENTS
Although this decision
deals with voluntary leaving of employment because of illegal employment
relating to wages, the same conclusion would result in any voluntary leaving
where the contract of hire contains other illegal conditions.
Index
No. 1020-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November
28, 1961
INTERPRETATION
SERVICE – BENEFIT CLAIMS
HEARING AND APPEALS
Rules of Appeal
Appeal Board Case Number 85,187-61 et al
DETERMINATION NOT ADVERSE TO CLAIMANT – RIGHT TO HEARING
A claimant for benefits
has no right to a hearing on a denial of his request for disclosure of
information furnished by his employer when no initial determination adverse to
him is involved.
The claimants appeal
from the decision of the referee filed September 6, 1961 dismissing the
claimants’ request for a hearing.
A combined hearing was
held before the referee at which all but four of the claimants herein,
representatives of their union, a witness for the claimants and a
representative of the Industrial Commissioner appeared and testimony was taken.
Written statements submitted on behalf of the claimants were considered by the
Board on appeal.
Based on the record and
testimony in this case, the Board makes the following
Findings of Fact: Claimants, each of whom was employed for
varying periods in various occupations by a manufacturer of business machines,
filed for benefits and initial determinations were thereafter issued holding
that each claimant was eligible to receive benefits without disqualifying
conditions. No objection to such initial determinations was interposed by the
employer and each of such initial determinations continued in effect during the
period here at issue.
Notwithstanding that
each of the claimants was found to be eligible for benefits without
disqualifying conditions, their representative on their behalf demanded the
right to inspect information received by the insurance office from the employer
in response to the usual inquiry directed to employers by the Division of
Employment upon the filing of claims for benefits. Such request was denied by
the Industrial Commissioner on the ground that none of the claimants was
adversely affected by such information and, therefore, a disclosure of such
information to the claimants is prohibited by law. Claimants protested the
denial of their request and demanded a hearing thereon. Claimants’
representative requested a further hearing before the Board in connection with
their appeal from the referee’s decision.
Appeal Board Opinion and
Decision: Section 621.3 of the
Law authorizes the appeal Board to decide any case to it on the basis of the
record and evidence previously submitted or it may, in its discretion,
hear argument or hold a further hearing. We are satisfied that the record below
is adequate to permit a decision of this appeal and accordingly, claimants’
request for a further hearing before the Board is denied.
A claimant for benefits
has no basic right to a hearing except as is specifically provided in the
Unemployment Insurance Law, and a referee is without jurisdiction to adjudicate
any matter not specifically authorized by the provisions of the Unemployment
Insurance Law. As a claimant for benefits, claimants’ right to a referee
hearing is governed solely by the provisions of Section 620.1 of the Law. It is
there provided that a hearing may be requested only by a claimant "who is
dissatisfied with an initial determination of the claim for benefits. In the
instant case, since the initial determination with respect to the claims for
benefits were not adverse to any of the claimants, none of them has a basis for
dissatisfaction therewith, and consequently, they have no right to request a
hearing with respect to such initial determinations. The denial by the
Commissioner of the requests of the claimants for the disclosure of information
does not constitute an initial determination of the claim for benefits. An
initial determination is defined in Section 597 of the Law. The ruling of the
Industrial Commissioner denying claimants’ request does not relate to the
validity of the claims nor to the amount of benefits payable to the claimants.
It would appear from the
argument advanced on claimants behalf that they claim to be aggrieved by the
Commissioner’s failure to permit them to inspect the information furnished by
the employer in that they are deprived of the opportunity of learning what
reasons were advanced by the employer for the termination of claimants’
employment with the result that they are unable to use that information in any
proceedings in which they may become involved for the purpose of attempting to
establish that the claimants were wrongfully discharged by the employer. In
that regard it is appropriate to point out that under the provisions of Section
537 of the Law, information acquired from employers pursuant to the provisions
of the Unemployment Insurance Law, shall be for the exclusive use and
information of the Commissioner in the discharge of his duties under that
Law and shall not be used in any Court, in any action or proceeding
pending therein.
It is further contended
on behalf of the claimants that they are entitled to the information which they
seek under the authority of that portion of Section 537 of the Law which
permits such information to be made available to parties affected in connection
with effecting placement. It is the contention of the claimants that the
information sought is necessary to assist them in obtaining other employment.
There is no merit to the contentions so advanced since there is a total lack of
proof purporting to establish that such information would in any wise affect
the procurement of other work by claimants and for the further reason, that the
Law specifically vests in the Industrial Commissioner the discretion of
determining whether the information should be made available for such purpose.
It does not appear that the exercise of such discretion by the Industrial
Commissioner in the instant case was arbitrary or capricious. Under the
circumstances, we conclude that claimants had no legal right to a hearing with
regard to their protest of the Commissioner’s denial of their request, and that
the referee was without jurisdiction to adjudicate the dispute with respect to
such disposition by the Commissioner of the claimants’ request. The decision of
the referee is affirmed. (November 16, 1961)
COMMENTS
Regardless of the
principle here discussed local offices are required to process any and all
hearing requests. A referee will decide whether the claimant is entitled to a
hearing.
Index
No. 1670-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January
4, 1962
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Following Spouse or Marriage
Appeal Board Case number 85,455-61
QUESTION OF WHETHER MARRIAGE IS DIRECT CAUSE FOR LEAVING
EMPLOYMENT
Where claimant leaves
employment upon marriage to assume the care of her infant stepson, her marriage
is the direct cause and the disqualification provided for in section
593.a(b)(2) applies.
Referee’s Decision: The initial determination of the local office
disqualifying claimant from receiving benefits effective June 17, 1961, on the
ground that she voluntarily left her employment due to her marriage is
overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a transcribing-machine operator, was
last employed from April 27, 1955 until June 16, 1961 by a shipping firm.
Thereafter she went on her vacation and was due to return to work on July 3,
1961. While on such vacation, she married a widower with a 16-month-old son.
Upon the marriage, the husband discharged his housekeeper who took care of his
infant. Claimant then replaced the said housekeeper in the care of the child.
Because of her marriage and her assumption of responsibility for the care of
her husband’s child, claimant did not return to her employment.
Appeal Board Opinion and
Decision: The referee concluded
that the direct cause of claimant’s separation from employment was not the
marriage itself but her need to care for her stepson. We do not agree with such
conclusion.
The responsibility for
the care of the child was assumed by claimant only because of her marriage and
as a result thereof. Accordingly, claimant’s marriage was the direct cause for
her withdrawal from the labor market, and therefore, the disqualification
provided for in Section 593.1(b)(2) applies.
The initial
determination of the local office disqualifying claimant from receiving
benefits effective June 17, 1961 on the ground that she voluntarily left her
employment due to her marriage, is sustained. The decision of the referee,
insofar as appealed from, is reversed. (December 6, 1961)
Index
No. 1605 D.2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January
4, 1962
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Effective and Termination Date
Appeal Board Case number 82,477-61
DISQUALIFICATION – TERMINATION DATE; CONTINUING PART-TIME
EMPLOYMENT
"Subsequent"
employment, which terminates a disqualification, does not have to be new
employment so that part-time employment continuing from before the date on
which a disqualification was incurred meets the requirement of the Law.
Referee’s Decision: The initial determination of the local office
holding that a disqualification effective January 14, 1961 on the ground that
claimant voluntarily left his employment without good cause by provoking his
discharge, was not terminated on the basis of claimant’s employment which had
terminated on February 17, 1961 is overruled.
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,
a sales correspondent, filed an original claim effective January 16, 1961, and
an additional claim effective February 20, 1961. He was disqualified because of
voluntary leaving of employment without good cause by initial determination
effective January 14, 1961, on the ground that he provoked his discharge because
of excessive tardiness. By another initial determination it was ruled that the
part-time employment of three days per week in each of four weeks which
claimant had at a wine and liquor store, did not terminate the prior
disqualification.
For
three and one-half years ending January 13, 1961, claimant was employed by a
manufacturer of recording instruments as a sales correspondent at $86 per week.
He was discharged on the latter date because of an excessive record of
tardiness. Claimant is not disputing the initial determination, which ruled
that his actions were tantamount to a voluntary leaving of employment without
good cause, and that he provoked his discharge. He contends, however, that the
part-time employment, which he had on three days in each of four weeks
beginning with the week ending January 22, 1961, and ending February 19, 1961,
terminated the disqualification.
Claimant
had been employed part-time by a retail liquor store as a salesperson from
September 1960 through February 17, 1961, working three nights per week at a
salary of $25 per week. He continued in his part-time employment after being
discharged from his full-time employment until February 17, 1961, when he
voluntarily left his part-time employment because he could not maintain himself
on the meager income he was receiving from his part-time employment. Claimant’s
benefit rate is $44 per week. Had he continued in his part-time employment, he
would have accumulated only one effective day in each statutory week and would
have received $11 in benefits plus the $15 which he earned from his part-time
employment or a total of $26 per week.
Appeal Board Opinion and
Decision: Since the referee
sustained the initial determination disqualifying claimant from receiving
benefits effective January 14, 1961, for having voluntarily left his employment
without good cause, there remained solely the issue whether claimant’s
part-time employment for at least four weeks in each of which he worked three
days, served to terminate the disqualification within the meaning of section
593.1(a) of the Unemployment Law which provides:
No
days of total unemployment shall be deemed to occur after a claimant’s
separation without good cause from his last employment prior to the filing of
his claim until he has subsequently worked in employment on
not less than three days in each of four weeks or earned remuneration of at
least $200. (Underscoring supplied).
The mandate of the
statute is that a disqualification is terminated by employment of the
prescribed duration subsequent to the effective date of the disqualification.
There is no requirement that the subsequent employment must be new employment.
Nor is the mandate for the termination of such disqualification nullified by
any circumstances attendant upon the termination of the subsequent employment.
If the circumstances under which the subsequent employment terminated produce a
basis for disqualification, a separate initial determination providing for a
new disqualification, effective the day after the termination of the subsequent
employment, must be made by the local office.
Since the local office
did not issue an initial determination imposing a disqualification on the basis
of the termination of the subsequent employment, the referee had no
jurisdiction to make the ruling that claimant had good cause for the voluntary
leaving of his part-time employment.
The record clearly
establishes that the statutory conditions necessary to terminate the
disqualification effective January 14 were met by claimant’s employment up to
February 17 and, therefore, such disqualification was terminated upon
claimant’s refiling effective February 20. The issue as to whether or not the
leaving of the subsequent part-time employment was without good cause within
the meaning of the Law is referred to the local office for appropriate action.
The initial
determination of the local office holding that the part-time employment of
three days per week in each of four weeks did not terminate the prior
disqualification, is overruled. The issue as to whether or not the termination
of this employment was under disqualifying conditions is referred to the local
office for appropriate action. The decision of the referee is affirmed.
(December 18, 1961)
COMMENTS
Although the reported
case concerns a voluntary leaving disqualification, the same conclusion would
obtain regarding disqualifications for refusal and misconduct.
Index
No. 1640A-4
1740A-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February
14, 1962
INTERPRETATION
SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Insufficient Wages
Appeal Board Case Number 84,943-61
VOLUNTARY LEAVING; TRANSFER TO LOWER JOB – WAGES INSUFFICIENT
Claimant who had
accepted transfer to a job in a lower classification and with reduced wages in
accordance with a "bumping" privilege of the union contract does not
have good cause to leave employment in such classification after three months
since nothing developed during the three months period to justify his refusing
the employment in the first instance (See Matter of Sellers –
A-750-1550).
Referee’s Decision: The initial determination of the local office
disqualifying claimant from receiving benefits effective April 4, 1961, on the
ground that he voluntarily left his employment without good cause by provoking
his discharge is overruled.
Appealed By: Employer
Findings of Fact: Claimant was employed 13 years until April 4,
1961. During a part of his employment, claimant had been employed as a yard
laborer at $2.25 per hour but for several years until December 10, 1960,
claimant had been employed as a tapper at a salary of $2.65 per hour.
Claimant is a member of
the union, which is in contractual relationship with the employer. Under the
union contract claimant was entitled to certain "bumping" privileges.
Thus, as a result of a curtailment in production, claimant was temporarily
transferred to the classification of yard laborer at $2.25 per hour. Claimant
worked as a yard laborer from January 10 to March 27, 1961. About this time, he
notified the employer that he was physically unable to perform the work of yard
laborer. Claimant was examined by the plant physician and was certified to be
capable of performing the duties of yard laborer. Despite this finding,
claimant did not report for work from March 27 until April 4, 1961. During this
week, the employer communicated with the claimant and advised him that unless
he reported for work or presented medical evidence as to his incapability, he
would be discharged. Claimant reported for work on April 4 worked for one hour
and then left. He did not present a medical certificate from his physician. He
had not been under the care of his physician until April 7. Claimant presented
a certificate from his physician dated May 2, 1961 indicating that claimant was
under this care from April 7 to May 2 and that in his opinion claimant should
not work as a laborer.
Appeal Board Opinion and
Decision: We do not agree with
the conclusion of the referee, that claimant as justified in leaving his employment
because of his down-grading to a lower job. Claimant accepted the lower
classification under his union contract and continued to work in this
classification for a period of three months.
In Matter of Sellers, 13 App. Div. 2nd 204 reversing
appeal Board 70,414, the Court held that a claimant is not entitled to benefits
after a voluntary separation from employment solely because of dissatisfaction
with wages, unless circumstances developed in the course of such employment
which would have justified the claimant in refusing such employment in the
first instance. Claimant had accepted the reduction in wages and had continued
to work in the new classification, so that nothing had developed during the
three-month period in which claimant had worked in the new classification to
justify his refusing employment in the first instance.
The sole issue therefore
is whether claimant provoked his discharge by his failure to present medical
evidence as requested by his employer. Since the employer’s physician found
that claimant was capable of working in his assignment, it was incumbent upon
the claimant to comply with the employer’s request by furnishing contrary
information, if any, from his own physician. Claimant did not comply with the
request because he did not visit his physician until several days subsequent to
his discharge. His failure to visit his doctor supports the opinion of the
plant physician that claimant was in sufficiently good health so as not to
require medical care and to be capable of performing his assigned work.
Claimant was aware that
his failure to furnish the required information to his employment would result
in his discharge. We conclude that claimant provoked his discharge by his
failure to comply with a reasonable request of his employer.
The initial
determination of the local office disqualifying claimant from receiving
benefits effective April 4, 1961, on the ground that he voluntarily left his
employment without good cause by provoking his discharge is sustained. The
decision of the referee is reversed. (February 7, 1962)
Index
No. 1250 E-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March
2, 1962
INTERPRETATION
SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Hours – Refusal of Full-Time
Appeal Board Case Number TEC-283
SHORT-TIME WORKER REFUSING EMPLOYMENT FOR OTHER THAN PERSONAL
REASONS
A claimant, although he
has a work history as a short-time worker, who is willing to accept full-time
employment (See section 596.3) may be disqualified for refusing such employment
when the reasons for the refusal are other than a desire for short-time
employment.
Referee’s Decision: The initial determination of the local office
disqualifying claimant, filing for benefits under the Temporary Extended
Unemployment Compensation Act of 1961, from receiving benefits effective
September 14, 1961, on the ground that without good cause she refused
employment for which she is reasonably fitted by training and experience is
overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a transcribing machine operator had
a work history as a short-time worker. She last worked on December 31, 1960 at
a terminal salary of $87 per week. Her working hours were from 9:30 a.m. to
4:00 p.m. On September 14, 1961, claimant advised the local office that she was
willing to accept full-time employment. She was then referred to a job with hours
from 9 a.m. to 5:30 p.m. at a salary of $75 per week. The prevailing wage for
claimant’s job classification is $74.99. Claimant refused the job because she
was not satisfied with the amount of wages to be paid.
Appeal Board Opinion and
Decision: The referee concluded
that because claimant had a history as a short-time worker she had the right to
refuse full-time employment. Although this would be the case if claimant
refused full-time employment for personal reasons or
"is unable or
unwilling to work usual full-time…" (Labor Law Section 596,
Subdivision 3),
claimant did not refuse
the offered employment because she desired to continue as a short-time worker.
She had indicated to the local office that she was willing to work full-time.
She refused the job because she was dissatisfied with the amount of wage
offered and not because of the hours. Since the wage offered was within
prevailing wages, claimant refused employment without good cause. The initial
determination of the local office disqualifying claimant from receiving
benefits effective September 14, 1961, 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. (February
15, 1962)
Index
1290B-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
MAY
3, 1962
INTERPRETATION
SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Wages; Prevailing, question of
Matter of Marsh
13 NY 2d 235
REFUSAL, QUESTION OF "SUBSTANTIALLY BELOW PREVAILING"
Refusal of employment is
with good cause if the offered wages are more than 10% below a prevailing rate
established on the basis of the weighted average of the wages received by the
middle 50% of workers in the occupation.
Referee's Decision: The initial determinations of the local office
disqualifying claimant from receiving benefits, effective October 4, 1961, on
the ground that, without good cause, she refused employment for which she is
reasonably fitted by training and experience, is overruled. The initial
determination of the local office holding claimant, ineligible to receive
benefits, effective October 9, 1961 on the ground that she was not available
for employment is modified to be effective November 15, 1961.
Appealed By: Industrial Commissioner.
Findings of Fact: Claimant a full-charge bookkeeper was
referred to employment at a wage of $90 per week. She refused the employment
because of the salary.
A survey of full charge
bookkeepers wages in the Metropolitan area was made in April 1961, by the
Bureau of Research and Statistics, a unit specifically charged with the duty of
compiling prevailing wage information for the use of the Division of
Employment. The survey covered 19,651 such employees and indicated that 10,314
of them were paid wages ranging form $90 per week to $119.99 per week. The
weighted average of the middle fifty percent of the survey is $103.63. The
entire survey range was from $40 per week to over $145 per week. The number of
persons surveyed comprised a fair sampling of the persons employed in
claimant's occupation in this area.
The Industrial
Commissioner determined that since the offered wage was not less than the
lowest wages paid to the middle fifty percent, nor more than twenty percent
below the weighted average of the middle fifty percent range, the offered wage
was not substantially less favorable to the claimant than the prevailing wage.
In the period up to
November 14, claimant made numerous efforts to find employment. Commencing with
November 15, she desired only part time work because of caring for her children
and made no personal search for work thereafter.
Appeal Board Opinion and
Decision: Prior to the decision
in the Matter of Sellers, 13 A.D. 2d 204, reversing Appeal Board
70,414 the median wage was accepted as the prevailing wage. The court commented
thereon as follows:
"The
difficulty is that 'median' wage, the wage of the middle worker, is not the
same thing as 'prevailing' wage. A wage may not be said to be prevailing when
substantially one half of the workers are receiving less and substantially one
half are receiving more. The statute nowhere uses the word 'median.' In order
to be a prevailing wage it must appear that at least a majority of workers in
similar employment are receiving approximately that wage."
Based upon this portion
of the Court's decision, a new method of determining prevailing wages was adopted
by the Division and on the basis thereof, it was contended that the offered
wage of $90 weekly was not substantially below the prevailing wage because it
falls within the middle fifty percent of the wages surveyed, not withstanding
that it is the lowest wage within the fifty percent bracket.
When such weighted
average is the result of a substantial sampling of an occupation in an area, as
in the present case, it is a statistically accurate evaluation of the
approximate prevailing wage for such occupation in that geographical area.
However, once the prevailing wage has been established then the question arises
of how far below such prevailing wage, an offered wage may be before it is
substantially less favorable to the claimant.
Section 593.2(d) of the
Law, reads as follows:
"No
refusal to accept employment shall be deemed without good cause nor shall it
disqualify any claimant otherwise eligible to receive benefits if . . .(d) the
wages or compensation or hours or conditions offered are substantially less
favorable to the claimant than those prevailing for similar work in the
locality, or are such as to tend to depress wages or working conditions."
In interpreting this
provision of the Law, we have consistently ruled on an ad hoc basis,
whether the salary offered was substantially less favorable to the claimant.
(Appeal Board, 55,849, 55,889, 61,800 and 62,417). In most of our decisions, we
held that when a wage offered was more than 10 percent below the prevailing
wage, such wage was substantially less than the prevailing wage. Our
interpretation of what is to be considered a wage substantially less favorable
to the claimant than that prevailing in the area for similar work was affirmed
in Matter of Nass, 272 A.D. 989 affirming appeal Board
14,486, Matter of Hirschberg, 273 A.D. 936, affirming Appeal Board
14,912 and Matter of Lieberman 6 A.D. 2d 933 affirming Appeal
Board 59,223.
In the instant case, the
salary offered was thirteen percent less than the prevailing wage. We therefore
hold that the wage offered was substantially less favorable to this claimant
than that prevailing for similar work in the locality. It is significant that
the survey establishes that 65 percent of all the workers engaged in the work
offered to claimant earn a wage which is substantially more than that which was
offered to claimant, and further, that more than two-thirds of the total 10,314
workers who compose the middle fifty percent earn a wage which is more than ten
percent higher than the offered wage. In our view, such differential is
substantial and justifies our conclusion that the offered wage is substantially
less favorable to claimant than the prevailing wage.
In Matter of
Sellers supra, the Court did not pass upon what wages are to be
considered as substantially less favorable to the claimant than those
prevailing in the area for similar employment. It merely indicated the need for
a revised statistical method of arriving at a determination of what is the
prevailing wage. The Board's prior decisions on the question of what is
substantially less favorable to the claimant than the prevailing wage were not
revised or altered in any manner thereby. These decisions and the decision
in Matter of Nass, Matter of Hirschberg, and Matter
of Lieberman supra, are still controlling and the instant case must be
decided in accordance therewith.
Through November 14,
1961, claimant made reasonable efforts to find employment and was available for
such. Thereafter, when she discontinued her personal search for work, she
became unavailable.
The initial
determination of the local office disqualifying claimant from receiving
benefits, effective October 4, 1961, on the ground that, without good cause she
refused employment for which she is reasonably fitted by training and
experience is overruled.
The initial
determination of the local office holding the claimant ineligilbe to receive
benefits, effective October 9, 1961, on the grounds that she was not available
for employment was modified by the referee to be effective November 15, 1961,
is sustained. The decision of the referee is affirmed. (April 11, 1962)
Court of Appeals Decision
DESMOND, CH. J.:
Claimant, a "full
charge bookkeeper" was because of slack business conditions discharged
from a job at which she had been paid $95 per week. After she had filed her
claim for unemployment insurance benefits the State Employment Service got for
her a job referral or offer of employment at $90 per week which she refused on
the ground that the wage was inadequate. The Industrial Commissioner,
thereafter ruled that she was not entitled to insurance benefits since, as he
thought, she had not brought herself within the exception found in Labor Law,
Section 593.2, subdivision d, which provides that such a claimant need not
accept employment where: "the wages or compensation . . . are
substantially less favorable to the claimant than those prevailing for similar
work in the locality." The referee and in turn the Appeal Board overruled
the Commissioner. When the matter came to the courts on the Commissioner's
appeal, the Appellate Division affirmed. The court called attention to Section
624 of the Labor Law which limits the court's power of review to questions of
law only and held that there was no power in the courts to upset factual determinations
of the Appeal Board and that this particular determination was not erroneous in
its construction or application of the law.
Some preliminary
observations are in order. First, the question as to what is the
"prevailing wage" for a kind of work in a locality is essentially one
of fact. Second, if claimant falls within the exception she is entitled to
reject the offer and collect her insurance benefits, whether or not an
administrative official or agency or court thinks she should have taken the offered
job. Third, since the statutory test is as to whether the job offer was at a
wage "substantially less favorable to claimant" than the
"prevailing" wage for such work in the area, the fact that the wage
for the rejected employment was nearly as high as claimant had previously been
earning is not only not determinative but is of little or no legal
significance. Fourth, the Appeal Board is the highest administrative body in
the unemployment insurance claim adjudication hierarchy and so its
determination and its construction and application of the terms
"prevailing wage" and "substantially less favorable" must
be accepted by the courts "if it has warrant in the record and a
reasonable basis in law" - in other words, if it has a "rational
basis" (Matter of Mounting & Finishing Co. v. McGoldrick, 294
N.Y. 104,108).
It would be impossible
on this record for a court to hold as matter of law that the $90 weekly wage
turned down by claimant was not substantially less favorable than the
prevailing wage for such work in the locality. The underlying statistics were
assembled by the Department's Bureau of Research and show that the range of
wages paid to about 20,000 people engaged in this work (a concededly fair
sampling) was from $40 to $145 per week but that about half of them were
working at wages ranging from $90 to $120 weekly. The Commissioner struck from
the sample the lowest and the highest quartiles as representing extreme lows
and highs and then computed at $103.63 the weighted average of the middle 50
per cent. So far, his method and his mathematics were unexceptionable. But his
task under the statute was to find what was "substantially less
favorable" than the "prevailing wage" and this he did by holding
in effect that the "prevailing wage cut-off" was $90 per week. In
other words, he decided that any wage inside the middle 50 per cent (including
the $90 at the bottom thereof) was not "substantially less favorable"
than the "prevailing wage." The Appeal Board, however, pointed out
that the same survey showed that 65 per cent of all the people engaged in this
work in the area earned more than $90 (5,000 receive less than $90, 2,000 get
$90 and 13,000 are paid more than $90 and up to $140) and that of the middle 50
per cent more than two-thirds receiving wages more than 10 per cent higher than
the $90 offered to claimant. Therefore, held the Appeal Board, the $90 figure
was "substantially less favorable" to claimant than the
"prevailing" wage and claimant was within her rights in refusing it.
The Appeal Board adopted no "rule" that a wage cannot be more than 10
per cent below the weighted average of the middle half, but held that the
claimant could reject the job offer since its compensation was not within 10
per cent of $103.63.
Surely there was a
"rational basis" for the Board's conclusion that the offer was
substantially lower than the prevailing wage for such jobs in the locality,
when so large a majority of all the workers were getting more and many of them
much more.
The Commissioner,
however, stands firm on his own directive issued in January 1962 after the
court's decision in Matter of Sellers (13 A.D. 2d 204).
In Sellers it had been ruled that it was arbitrary and
improper to take the median or middle wage in a sample as the "prevailing
wage." In the directive the Commissioner notified his staff that in cases
where there is no concentration of 40 per cent or more workers at the same wage
rage, the weighted average of the middle 50 per cent was thereafter to be used
(instead of the "median" wage or wage of the middle worker" as
the prevailing wage. As to "substantially less favorable" his order
to his staff was that such a label was to be applied to any wage less than the
lowest wage of the middle 50 per cent or more than 20 per cent below the prevailing
rate. Applying those rules to the present case would require claimant to accept
any job offered at $90 (lowest wage of middle 50 per cent). The Commissioner
argues that as matter of law any wage rate anywhere within the range of the
middle 50 per cent cannot be held to be substantially below the prevailing
wage. The answer is that while the Commissioner could take it as an approach or
rule to thumb for administrative purposes that any thing within the middle 50
percent range was not substantially below prevailing wages, he cannot be heard
to assert that the Appeal Board, given by the statute appellate jurisdiction
over his determinations, necessarily erred when it held in this case that a
wage considerably lower than that enjoyed by two-thirds of those similarly employed
was substantially less favorable than prevailing wages. It is not an error of
law to say that $90 is substantially less than $103.63. The Board's holding had
a not irrational basis in the particular facts, and for the courts that is the
end of the matter.
The order should be
affirmed, with costs.
SCILEPPI, J.
(dissenting);
Claimant had been
employed as a full charge bookkeeper. She was hired to work full time - from
9:00 A.M. to 5:30 P.M., five days a week at a starting salary of $90 per week.
It later developed that claimant's home situation - she was married and had
three small children required her to leave her place of employment before the
normal 5:30 P.M.; however, she took work home in order to compensate for her
early departure. Sometime during the course of her employment the salary was
increased to $95 per week. After a period of approximately 13 months at said
job, claimant was discharged by her employer, whereupon she filed a claim for
unemployment insurance benefits.
Claimant had been receiving
benefits for about 3 months when the New York State Employment Service referred
her to an employer who offered her a job as a full charge bookkeeper on a full
time basis from 9:00 A.M. to 5:30 P.M., five days a week at a salary of $90 per
week. Claimant refused the job stating the salary was insufficient. Thereupon
the Commissioner issued an initial determination terminating the payment of
benefits, pursuant to Section 593, subdivision 2, of the Unemployment Insurance
law [Labor Law, Art. 18], upon the ground that "the salary offered was not
substantially below the wages paid for this work in this locality"; thus
claimant's refusal of this otherwise suitable employment was without good
cause. Claimant requested a hearing before a referee pursuant to Section 620 of
the Unemployment Insurance law [Labor Law, Art. 18]. The referee overruled the
Commissioner's initial determination. The Commissioner then appealed to the
Unemployment Insurance Appeal Board, who affirmed the referee's decision. In
the opinion rendered in connection therewith the Board stated:
"A
survey of full charge bookkeepers' wages in the metropolitan area was made in
April 1961, by the Bureau of Research and Statistics, a unit specifically
charged with the duty of compiling prevailing wage information for the use of
the Division of Employment. The surveys covered 19,651 such employees and
indicated that 10,314 of them were paid wages ranging from $90 per week to
$119.99 per week. The weighted average of the middle fifty per cent of the survey
is $103.63. The entire survey range was from $40 per week to over $145 per
week. The number of persons surveyed comprised a fair sampling of the persons
employed in claimant's occupation in this area.
The
Industrial Commissioner determined that since the offered wage was not less
than the lowest wages paid to the middle fifty per cent nor more than twenty
per cent below its weighted average of the middle fifty per cent range, the
offered wage was not substantially less favorable to the claimant than the
prevailing wage."
The Board went on to
state, however, that the "weighted average" of the middle fifty per
cent of full charge bookkeepers surveyed was the "prevailing wage for such
occupation in that geographical area"; that since the wage offered the instant
claimant was more than 10%, to wit, 13% below the prevailing wage as above
defined, it was "substantially less favorable" within the meaning of
Section 593, subdivision (d) of the Unemployment Insurance Law [Labor Law, Art.
18], and claimant's refusal to accept the employment offered was with
"good cause."
The sole question
present here turns on the construction of Section 593, subdivision 2, which in
pertinent part provides:
"No
refusal to accept employment shall be deemed with good cause nor shall it
disqualify any claimant otherwise eligible to receive benefits if (d) the wages
or compensation or hours or conditions offered are substantially less
favorable to the claimant than those prevailing for similar
work in the locality, of are such as tend to depress wages or working
conditions." (Emphasis supplied)
It should be noted that
this court's function regarding the issue of statutory construction, under the
circumstances here, is limited. In Matter of Mounting &
Finishing Co. v. McGoldrick (294 N.Y. 104), it was stated (p. 108):
"Of
course, statutory construction is the function of the courts 'but where the
question is one of specific application of a broad statutory term in a
proceeding in which the agency administering the statute must determine it
initially the reviewing court's function is limited' (Board v. Hearst
Publications, 322 U.S. 111, 131). The administrative determination is to be
accepted by the courts 'if it has "warrant in the record" and a
reasonable basis in law' (same citation). 'The judicial function is exhausted
when there is found to be a rational basis for the conclusions approved by the
administrative body' (Rochester Tel. Corp. v. U.S., 307 U.S.
125,146)."
In this case the record
indicates that claimant was employed as a full charge bookkeeper on a full time
basis at a salary of $95 per week and refused an offer of a similar type job
because the salary was $90 per week. The discussion first must center on
whether there was a rational basis for the conclusion reached by the Board to
the effect that the salary of $90 per week offered claimant was
"substantially less favorable" than those "prevailing for
similar work in the locality" within the meaning of Section 593,
subdivision 2 (d), of the Unemployment Insurance Law [Labor Law, Art. 18].
In Matter of Sellers
(Mays, Inc.) (13 A.D. 2d 204),
involving a problem analogous to the one at bar, the Appellate Division stated
(pp. 204-205):
"Claimant's
wage was within the range of wages found in the survey (which varied widely),
but was somewhat less than the 'median' wage. The difficulty is that 'median'
wage, the wage of the middle worker, is not the same thing as 'prevailing
wage.'
The
survey relied upon necessarily included widely varied types of establishments
and employees and included employees of widely varied abilities, experience and
job performance. To arbitrarily take the middle worker's wages as the
wages 'prevailing' for the particular type of work performed by claimant finds
no sanction in the statute [Unemployment Ins. Law (Labor Law Art. 18) §593 (2)
(d)] in judicial precedent or in common sense." (Brackets and
emphasis supplied)
So, in this case, also
involving a widely varying range of wages, to take the weighted average of the
wages of the middle 50% of the workers surveyed as prevailing, and to establish
as substantially less favorable and wage offer more than 10% below said
average, seems to be no less arbitrary and unreasonable.
The construction of
Section 593, subdivision 2(d), of the Unemployment Insurance Law [Labor Law,
Art. 18] adopted by the Board and approved by the majority here would
conceivably permit a full charge bookkeeper who had been making $90 per week to
refuse an offer of employment at a salary of $92 or even $93 per week. Many
more examples could well be put forward to illustrate the unreasonableness of
the rigid and mechanical formula invoked by the Board. Needless to say, this
approach to the problem would serve in the long run to defeat the very purpose
of the statute, designed, as it were, not to regulate wages (Matter of
Sellers[Mays, Inc.], supra) but merely to ameliorate economic
insecurity due to involuntary unemployment by tiding over the financial strain
incident thereto (Unemployment Insurance Law [Labor Law, Art. 18]. § 501). It
appears that the holding in Matter of Wetzig [Corsi] (304 N.Y. 916)
tends to support my conclusion here. There, claimant, an experienced plier
worker in the jewelry trade, had been earning $1.10 per hour. Some five months
after having become unemployed he refused an offer of a job as a plier worker
at a wage of 90¢ per hour. The prevailing wage was based upon the union scale,
which varied from 90 to $1.10 per hour. It was held that claimants' refusal was
without good cause.
In large measure, the
Commissioner's formula for determining the prevailing wage and what constitutes
substantially less favorable is subject to the same criticism as the Board's
formula; however, insofar as the Commissioner's formula uses the range of wages
of the middle 50%, which is from $90 to $119.99 per week, it more nearly
approached the scheme approved of in Wetzig (supra).
Nonetheless I feel that
both formula are too mechanical, and to varying degrees unreasonable, in cases
where, as here, the wage range is to wide as to render almost meaningless any
attempt to establish what is prevailing. The key to what constitutes
substantially less favorable may very well lie with claimant's last salary, or
the solution may be a more detailed survey which would establish separate
groups for workers based not only on the nature of the work performed but also
experience, tenure and quantum of responsibility, among other things. In any
event, I do not believe that the offered salary of $90 per week, having been
merely $5 less per week than claimant had been earning, could under any
circumstances be deemed substantially less favorable.
I would reverse the
order appealed from and reinstate the Commissioner's initial determination.
Comments
See
A-710-32 for a detailed explanation and discussion.
Index
No. 1615-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
28, 1962
INTERPRETATION
SERVICE - BENEFIT CLAM
VOLUNTARY LEAVING OF EMPLOYMENT
Anticipation of Discharge or Lay-Off
Appeal Board Case Number UCFE-774
VOLUNTARY LEAVING - MISCONDUCT DISMISSAL CHARGES PENDING
Voluntary leaving of
Federal employment because misconduct charges are pending is without good cause
regardless of whether the charges would ultimately justify dismissal.
Referee's Decision: The initial determinations of the local
office disqualifying claimant, a former Federal employee, filing for
unemployment compensation under Title XV of the Social Security Act, as
amended, from receiving benefits effective June 3, 1961, on the ground that he
lost his employment through misconduct in connection with his employment, or in
the alternative, disqualifying claimant from receiving benefits effective June
3, 1961, on the ground that he voluntarily left his employment without good
cause by provoking his discharge are overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, an attendant at a Veterans'
Administration Hospital, having civil service status, resigned from his job on
June 2, 1961. The Federal agency reported that claimant's employment was
terminated because he resigned while charges were pending to remove him from
his position because of improper conduct notwithstanding that the claimant
denied the charges.
Claimant has
unequivocally denied that he had engaged in the improper conduct with which he
was charged. He maintained that the complainant was not produced before him
during the investigation by the Federal agency to substantiate the charges. He
maintains that he resigned because he was informed by a representative of the
agency that the proof was predominantly in support of the charges and that
claimant therefore had the alternative of resigning or facing dismissal.
Appeal Board Opinion and
Decision: Neither the Division
of Employment nor the adjudicators who hear and decide the issues herein under
the provisions of the Unemployment Insurance Law, have any jurisdiction to
determine the correctness of the facts reported by the Federal agency with
respect to the reasons for the termination of claimant's employment. The State
agency administers the program providing unemployment compensation for Federal
employees in pursuance of the limited authority conferred under Title XV of the
Social Security Act and the regulations promulgated by the Secretary of Labor
to implement the program.
Section 1507 of Title XV
of the Social Security Act requires the Federal Department by which a claimant
is last employed to provide the State agency with information which shall
include the findings of the employing agency with respect to the reasons for
termination of claimant's employment and said Section specifically provides
that:
Any
such findings which have been made in accordance with such
regulations shall be final and conclusive for the purposes of
Section 1502 (c) and 1503 (c).
Section 609.3 of the
regulations of the Secretary of Labor reiterates that the findings of the
Federal agency shall be final and conclusive. Accordingly, by force of such
statute and regulations we are bound by the Federal agency's finding that
claimant "resigned while charges were pending to remove him from his
position because or improper conduct *** charge denied by Mr. E.P."
Whether or not in our view the charges were established so as to justify a
discharge is not material. Similarly, that the proof offered at the hearing
before the referee may have been sufficient to establish claimant's freedom
from guilt is of no avail. Our jurisdiction is limited to a decision with
respect to whether the findings made by the Federal agency establish the
commission of an act of misconduct by claimant in connection with his
employment as contemplated by the provisions of Section 593.3 of the
Unemployment Insurance Law or a voluntary leaving of employment without good
cause within the provisions of Section 593.1 of that Law.
The findings of the
Federal agency do not establish the commission of any act of
misconduct by claimant in connection with his employment. The report merely
indicates that a charge was pending against the claimant and that such charge
was denied by him. This does not constitute a finding that claimant did
actually engage in any improper conduct. Accordingly, the charge that claimant
lost his employment because of misconduct in connection therewith has not been
sustained. However, the findings of the Federal agency which must be accepted
by us, do establish that claimant resigned while charges to remove him from his
position were pending. These findings compel the conclusion that claimant
voluntarily left his employment and require a decision with regard to whether
claimant had good cause for such resignation. We have repeated1y held that the
leaving of employment while charges for removal are pending is without good
cause. Thus in Appeal Board, UCFE-463-60 under similar circumstances, we said:
The referee concluded
that claimant left his employment with good cause. The basis of his conclusion
was that claimant's services were to be terminated not because of any specific
proven charge but because certain charges were pending. This is erroneous
reasoning which we do not accept. Claimant voluntarily resigned from his job to
suit his personal purposes, that is to avoid the stigma of a discharge on his
employment record. We have held repeatedly that leaving of a job in
anticipation of a discharge is a voluntary leaving of employment without good
cause. That ruling applies here.
In view of the foregoing
we are constrained to conclude that claimant voluntarily left his employment
without good cause.
The initial
determination disqualifying the claimant from receiving benefits on the ground
that he lost his employment as a result of misconduct in connection therewith
is overruled. The alternative initial determination disqualifying claimant for
having voluntarily left his employment without good cause is sustained. The
decision of the referee is reversed. (June 18, 1962)
Index
No. 1250B-1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
October
5, 1962
INTERPRETATION
SERVICE - BENEFIT CLAIM
REFUSAL - HOURS
Personal Inconvenience
Appeal Board Case Number 93,499
REFUSAL - HOURS; QUESTION OF SUBSTANTIALLY BELOW PREVAILING
Where a considerable
portion of the employees in an occupation work from 8:30 A.M. to 5:00 P.M., a
claimant, in the absence of compelling reasons, does not have good cause to
refuse employment at those hours even though the predominant hours of
employment are from 9:00 A.M. to 5:00 P.M.
Referee's Decision: The initial determination of the local office
disqualifying claimant from receiving benefits effective April 10, 1962, on the
ground that without good cause she refused employment for which she is
reasonably fitted by training and experience is overruled.
Appealed By: Industrial Commissioner
Findings of Facts Claimant had been employed for four years
until April, 1961, as a secretary earning $85 for a 9:00 A.M. to 5:00 P.M.,
five-day workweek. This job terminated on March 16, 1962. On April 10, 1962,
claimant was referred to a secretarial job paying $92 for a five-day workweek,
with hours from 8:30 A.M. to 5:00 P.M. Claimant refused the offer of employment
because the employer's representative denied her request to change the hours to
9:00 A.M. to 5:00 P.M. Claimant preferred the shorter hours because she wanted
to prepare breakfast for her husband each morning, as was claimant's custom for
the past five years. The predominant hours of employment for secretaries in the
locality is 9:00 A.M. to 5:00 P.M. A considerable portion of the secretaries in
the area commence work at 8:30 A.M. The job paid a prevailing wage.
Appeal Board Opinion and
Decision: The record does not
support the referee's conclusion a claimant had a compelling domestic
circumstance which prevented her from working the hours specified by the
prospective employer. In view of the fact that the acceptance of the offered
employment would have required claimant to leave her home not more than one
half hour earlier than her accustomed time, claimant would have suffered no
undue hardship, nor would there have been any substantial interference with her
domestic duties and responsibility. We hold that claimant's refusal of
employment on April 10, 1962, was for reasons of non-compelling personal
convenience and do not constitute good cause for job refusal under the Law. The
initial determination of the local office is sustained. The decision or the
referee is reversed. (September 26, 1962)
Index
No. 780B.3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
September
17, 1962
INTERPRETATION
SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Miscellaneous Reasons
Appeal Board Case Number 92,820
DECEASED
CLAIMANT: QUESTION OF CREDIT FOR SATURDAY AND SUNDAY
A person’s status as a
claimant terminates upon death and a claimant who dies on Friday cannot receive
credit for Saturday and Sunday
Referee’s Decision: The initial determination of the local office
denying benefits to the estate of the deceased claimant effective March 3
through March 4, 1962, on the ground that benefits may not accrue after the
date of claimant’s demise is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: The deceased claimant was a presser who worked
in the garment industry on a five day week basis, Monday through Friday. The
needle trade industry, of which claimant was a member, customarily does not
work on Saturday and Sunday. Claimant died on Friday, March 2, 1962, at 7 P.M.
He had been totally unemployed for five days beginning Monday, February 26
through Friday, March 2, 1962. His estate was paid benefits for two effective
days in that week.
Appeal Board Opinion and
Decision: The Board has
previously ruled that it is unnecessary for a claimant to be available and
capable of employment on Saturday and Sunday in an industry that does not
customarily require work on such days (Appeal Board, 10,925-44; 43,587-54;
75,444-60). In these cases the claimants were alive during the time for which
effective and qualifying days were credited. In Appeal Board, 10,925-44 we
said:
"We believe that
the requirement to serve three qualifying days was placed in the Law in
lieu of exclusions of the usual days of rest from the compensable
statutory week."
In the instant case,
claimant cannot receive credit for Saturday and Sunday since his status as a
claimant terminated upon his death. We note in passing that our decision herein
does not alter our previous holding allowing effective days to claimants who
are alive during the statutory week, but are unavailable for employment on
Saturday or Sunday, where such days are not customary days of work in such
claimants’ employment (Appeal Board, 62,584-58)
The initial
determination of the local office is sustained. The decision of the referee is
reversed. (July 30, 1962)
Index
No. ll95-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September
18, 1962
INTERPRETATION
SERVICE - BENEFIT CLAIM
MISCONDUCT
Criminal Acts
Appeal Board Case Number 85-225A
ADEQUACY OF CLAIMANT'S SIGNED FELONY STATEMENT
A statement signed by
claimant that he wrongfully took monies from the employer is not a statement
admitting a felony within the meaning of Section 593.4 if it does not show the
amount involved and therefore, does not show that the monies taken reached that
sum which renders the act to be a felony.
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, a bookkeeper,
filed effective September 19, 1960, and refiled effective March 14, 1961. By
initial determination effective September 16, he was disqualified for 12 months
because of loss of employment as a result of an act constituting a felony in
connection with such employment. By alternative determinations, he was
disqualified effective September 16 for loss of employment as a result of
misconduct in connection therewith, or because of voluntary leaving of
employment without good cause.
Claimant worked for an
automobile dealer for about five and a half years to September 15. He was
discharged by the employer because he had embezzled money from him. According
to claimant, the amount embezzled was about $6000; according to the employer,
the amount involved was over $3O,OOO. On April 22, 1960, claimant signed a
statement prepared by the employer's attorney. This statement, in part, read as
follows:
"I admit that I
wrongfully took moneys collected in the course of conduct of said business. At
this time I do not know the exact amount, however a systematic check of the
accounts is to be made to determine the amount that I owe. I agree to make
restitution in full when the amount has been accurately determined."
According to claimant,
he took the money involved in small sums which did not exceed $200 at one time.
Referee's Opinion and
Decision: The
disqualification under Section 593.4 of the Unemployment Insurance Law for loss
of employment as the result of an act constituting a felony, can be invoked
only if a claimant is convicted of a felony "or has signed a statement
admitting that he was committed such an act." Claimant was never
prosecuted. The basis of the primary determination was that he had signed a
statement admitting that he had committed a felony. However, the statement of
April 22, 1960, by itself, does not constitute an admission of a felony. There
is no indication in that statement of the amount involved or even of the nature
of the crime. When supplemented by claimant's testimony at the hearing, the
statement would appear to refer to the commission of a felony. However, Section
593.4 provides for the disqualification only, if the statement itself shows the
commission of a felony. Since the statement relied upon in this case is
deficient in that respect, claimant cannot be disqualified under that section.
He was correctly disqualified under Section 593.3 because his actions
constituted misconduct in connection with his employment.
The initial
determination disqualifying claimant for 12 months is overruled. The initial
determination of misconduct is sustained. It is unnecessary to decide the
determination of voluntary leaving of employment without good cause.
Appealed By: Industrial Commissioner
Appeal Board Opinion and
Decision: The Board having
determined to grant the application of the Industrial Commissioner for a
reopening and reconsideration of its aforesaid decision filed September 18,
1961 (Appeal Board 82,927; 82,938). Now, after, a review of the record,
including testimony and evidence adduced before the referee and the Board and
due deliberation having been had thereon and having found that the referee's
findings of fact and opinion are fully supported by the record and that no
errors of fact or law appear to have been made, the Board adopts the findings
of fact and the opinion of the referee as the findings of fact and the opinion
of the Board, except that additionally, we hereby incorporate herein reference
as though fully set forth herein our opinion in Appeal Board 77,959-60 1/.
The application of the Industrial Commissioner to reopen and reconsider the
decision of the Board filed in the Department of Labor on September 18, 1961
(Appeal Bard 82,937,939) is hereby granted, and upon such consideration the
aforesaid decision is rescinded. The decision of the referee is affirmed
(November 6, 1961)
1/ OPINICN - A.B.
77,959, Cited Above
The
referee overruled that part of the initial determination which charged claimant
with having wilfully made a false statement to obtain benefits on the theory
that such charge was based solely on claimant's failure to indicate on his
application form the cause for the loss of his employment. The referee
apparently overlooked the revised initia1 determination and therefore, failed
to consider the effect of claimant's statements during the interview of June
301 1960.
The
record establishes conclusively that claimant deliberately provided the
insurance office representatives with false information during that interview,
to obtain benefits. He knowingly advised the insurance office that he had round
the material on the parking lot, whereas he knew that he had taken the material
from a closed and locked area. He therefore wilfully made a false statement to
obtain benefits within the purview or Section 594 of the Law.
We do
not agree with the referee's conclusion that the total disqualification
provided for in Section 593.4 of the Law applies since "it is clear that
claimant lost his employment because he was apprehended in the commission of a
felony." The disqualification therein provided for applies only if the
claimant is duly convicted of the commission of a felony in connection with his
employment or has signed a statement admitting that he has committed such act.
It is conceded that claimant was not convicted of a felony in connection with
his employment and, therefore, such disqualification can be applied only if the
statement which was signed by claimant constitutes an admission that he had
committed a felony. (See Appeal Board 76,294-60)
The penal
law defines three separate degrees of larceny. Only grand larceny in the first
and second degrees constitute felonies, whereas petty larceny is a misdemeanor.
(Section 1296-1299 of the Penal Law). The statement signed by claimant upon
which is based the initial determination disqualifying him from receiving
benefits for 12 months does not constitute an admission of larceny in either
the first or second degree. The statement contains no admission to the effect
that the property wrongfully taken by claimant was valued at more than $10 nor
that claimant took such property from the person of another nor that he took
the same from any dwelling house, vessel or railway car. That the property
which he took may actually have been valued at more than $100 is immaterial in
the absence of a conviction or at least indictment, so long as the signed
statement fails to contain an admission of such value. Accordingly, we conclude
that the disqualification provided for in Section 593.4 of the Law is
inapplicable.
It
has been conclusively established, however, that claimant committed an act of
misconduct in connection with his employment which precipitated his discharge.
Irrespective of the actual value of the property taken by him, he wrongfully
attempted to remove such property from the employer's premises without
authorization for the purpose of converting such property to his own use. he
thereby became subject to the disqualification provided for in Section 593.3 of
the Law for having lost his employment as a result of an act of misconduct in
connection therewith.
In
view of the fact that claimant was disqualified from receiving benefits upon
the filing of his claim and until he shall have met the conditions of his claim
and until he shall have met the conditions specified for termination of such
disqualification, he was ineligible to receive the benefits of $123.75 paid to
him and, therefore, he was overpaid such benefits. The overpayment is
recoverable because admittedly, they were not received by claimant in good faith.
COMMENT
This decision reflects
the principle that the signed statement itself must contain admission by the
claimant of all the elements which make the crime a "felony." Written
or oral information from other sources or implementing oral information from
the claimant, given before or after he signed the statement, is insufficient
for this purpose.
Index
1625-1 (Rev)
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
October
25, 1962
INTERPRETATION
SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Other Personal Affairs
Appeal Board Case Number 90,801
VOLUNTAY LEAVING OF EMPLOYMENT - SALE OF CORPORATE STOCK
If a claimant becomes
unemployed as the result of the sale of his corporate stock, a disqualification
for voluntary leaving of employment is proper unless the claimant had
compelling, as differentiated from personal and non-compelling reasons for such
sale.
Referee's Decision: The initial determination of the local office
holding claimant eligible to receive benefits effective October 30, 1961
without any disqualifying conditions and overruling the employer's objection
thereto is sustained.
Appealed By: Employer
Findings of Fact: Claimant was last employed by a corporation
which he had caused to be organized in 1951 and of which he was originally the
sole stockholder. The corporation issued only three shares of its capital stock
and the claimant owned all of such shares. In 1955, at a time when the
financial statement of the corporation reflected a net capital deficit of
$12,336.28, R.B. became a 50% stockholder of the corporation by purchasing
three additional shares of its capital stock for the sum of $1O,OOO. From that
time forward, both stockholders were officers of the corporation and they and
their respective wives were directors. Claimant and R.B. were employed by the
corporation at equal salaries which ultimate1y were fixed at $10,400 to each.
Because differences had
arisen between claimant and. R.B. with respect to management policy, claimant
elected to withdraw from the corporation. Accordingly, on October 16, 1961,
claimant sold his three shares of stock to R.B. for $30,000, and simultaneously
therewith he resigned as an officer and director of the corporation and
terminated his employment. His wife simultaneously resigned as a corporate
director. As part of the transaction of sale, claimant agreed not to engage in
a similar business within a specified area for a stated period of time.
Following the loss of
claimant's employment, he filed the claim in issue. The local office initially
determined that the circumstances under which claimant had lost his employment
did not disqualify him from receiving benefits. The employer protested,
contending that claimant should have been disqualified for having voluntarily
left his employment without good cause.
Appeal Board Opinion and
Decision: The referee
overruled the employer's objection and sustained the initial determination in
reliance upon our decision in Appeal Board, 68,663, wherein the factual
situation was analogous to the instant case. On this appeal, the employer urges
the Board to review its reasoning in Appeal Board, 68,663 and to arrive at a
contrary conclusion, It contends that the principle enunciated in Appeal Board,
68,663 does violence to the purpose and intent of the Law and particularly to
Section 593.1 thereof.
From time to time, the
Board has considered whether a disqualification for voluntary leaving of
employment without good cause applies where the unemployment stems from the
sale of stock in the corporation by which the claimant was employed. In earlier
decisions, the Board held that one who becomes unemployed because he disposes
of his interest in a corporation which he controlled or in which he held a
major interest, must be deemed to have voluntarily left his employment without
good cause (Appeal Board, 53,399; 54,153; 57,135; 60,496; 60,666). Later, in
Appeal Board, 61,586, it was established that the sale of stock which produced
the claimant's unemployment was necessary to prevent a dissolution of the
corporation and a threatened substantial loss. We there held that the sale of
the stock was for compelling reasons and consequently the unemployment of the
claimant was not due to a voluntary leaving of employment without good cause
(See also Appeal Board, 61,437 and 61,969).
Following the Board's
decision in the last mentioned case, the Division of Employment adopted a
policy to the effect that the conduct of the personal financial affairs of an
applicant for benefits, such as the sale of capital stock, should be
disregarded in determining benefit rights and accordingly, no findings should
be made that the loss of employment resulting from a sale of corporate stock is
due to a voluntary leaving of employment without good cause, since the claimant
presumably sold the stock for "good and sufficient reasons from his point
of view."
In pursuance of such
policy the local offices initially determined that claimants who had become
unemployed as a consequence of the disposal of stock interest in the
corporations by which they were employed were not subject to disqualifying
conditions. This policy was reviewed by the Board in Appeal Board, 68,663 and
we applied the Division's policy. We accordingly, sustained the initial
determination that claimant was not subject to any disqualifying conditions.
We have now reviewed the
issue in the light of the contentions and arguments advanced by the parties
herein and, we find that there is sufficient validity and merit to the
contentions of the employer to warrant an abandonment of the principle
enunciated in Appeal Board, 68,663. It is uncontradicted that the unemployment
of the claimant is voluntary since he had agreed to a transaction which he knew
must result in the loss of his employment. If we were to hold that under all
circumstances, such a voluntary act is based on good cause, we would be
ignoring the plain mandate of the statute which provides for financial
assistance to workers who are involuntarily unemployed through no fault of
their own (Section 501) Therefore we cannot subscribe to the view that the
reasons which motivated the claimant's sale of stock are "outside the
scope of local office investigations relating to rights to unemployment
insurance benefits." In our view, such an investigation must be made to
ascertain whether the reasons which caused the sale of stock, which in turn
resulted in claimant's unemployment, were compelling or merely personal. The
fact that some administrative difficulties may be encountered by the necessity
for making such investigations, does not justify the payment of benefits so
long as the statute mandates otherwise, (See e.g. Matter of the
American Legion, Inc., 10 A.D. 400, reversing Appeal Board 58,955 and Matter
of Cassaretakis, Appeal Board 4014-40 aff'd. 319 Board U.S. 306, sub,
nom. Standard Dredging Corp. vs. Murphy, aff'g. 289
N.Y. 119).
Accordingly, we conclude
that in each instance where a claimant becomes unemployed due to the sale of
corporate stock, the particular facts must be examined to determine whether
"good cause" to precipitate unemployment by such sale, existed.
Applying this rule to
the facts in the case on appeal, the conclusion is inescapable that there were
no compelling reasons within the provisions of the Unemployment Insurance Law
for claimant to have terminated his employment by the sale of stock. He entered
into an agreement for the disposition of his stock interest in the corporation
freely and without compulsion or duress and for reasons personal to himself. We
therefore conclude that claimant voluntarily left his employment without good
cause and thereby became subject to the disqualification provided for in
Section 593.1 of the Law.
The initial
determination of the local office holding claimant eligible to receive benefits
effective October 30, 1961 without and disqualifying conditions is overruled
and the employer's objection thereto is sustained. Claimant is disqualified
from receiving benefits effective October 30, 1961, on the ground that he
voluntarily left his employment without good cause. The decision of the referee
is reversed. (October 15, 1962)
COMMENTS
It is now necessary to
evaluate the reason for the sale of corporate stock to determine whether such
reason is "compelling or merely personal." In the instant case,
claimant elected to withdraw form the corporation and sell his stock because of
"differences" between himself and the other officer. Under such
circumstances, the Board held that disposition of the stock was made
"freely and without compulsion or duress and for reasons personal to
himself; consequently, a voluntary leaving disqualification was proper.
As against this,
compelling reasons existed in an earlier case (A.B. 61,586) when it was
established that the sale of stock was necessary "to prevent a dissolution
of a corporation and threatened substantial loss." Similarly, a compelling
reason for the sale of stock existed where claimant was forced out of the
corporate structure through no fault of his own - Release A-750-1456. There are
other instances which would indicate "compelling" reasons such as
health, substantial change in contract of hire beyond claimant's control, etc.
The usual "good cause" interpretations should be applied in
determining whether the sale of corporate stock is for compelling or personal
reasons.
Index
No. 1670-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
October
31, 1962
INTERPRETATION
SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Following Spouse or Marriage
Appeal Board Case Number 94,862
PROVOKED DISCHARGE; SIMULTANEOUS EMPLOYMENT OF HUSAND WIFE
Termination of
employment, because claimant's impending marriage to a co-worker conflicts with
a company rule forbidding simultaneous employment of husband and wife, does not
invoke the disqualification which applies to quits due to marriage when the
claimant is willing to continue to work since such separation is then
involuntary.
Referee's Decision: The initial determination of the local office
disqualifying claimant from receiving benefits effective May 9, 1962, on the
ground that she voluntarily left her employment due to marriage is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, a claims adjuster, was employed by
an insurance company for over three years. Claimant's fiancé was employed in
the same office. The company's rules forbid both a husband and wife to be
employed by the company. Claimant informed her supervisor of her impending
marriage, and it was agreed that claimant would terminate her employment, May
8, 1962, since claimant was to be married on May 12, 1962. Claimant was willing
to continue to work had she been permitted to do so.
Appeal Board Opinion and
Decision: In view of the proof
which has been adduced, we are not in accord with the referee's conclusion that
the disqualification provided for by Section 593.1(b) is applicable herein.
Section 593.l(b)(1)
provides as follows:
A
disqualification as provided in this subdivision shall also apply after a
claimant's voluntary separation from his last employment prior
to the filing of his claim, if such voluntary separation was
due to claimant's (1) marriage.
Claimant did not leave
her employment of her own volition. The rules of the employer made necessary
the termination of her employment and the effective date was fixed by agreement
between the employer and the claimant. The statute provides a disqualification
after a voluntary separation from her employment. In the instant case, the
separation was involuntary and resulted from the employer's rules.
We have heretofore held
that a leaving of employment under such circumstances is involuntary and that
the provisions of Section 593.1(a) do not apply thereto (A.B. #13,188-60). We
held therein that a loss of employment occasioned by an employer's rule of the
same tenor as that under consideration herein was involuntary. However the
facts of that case occurred prior to the effective date of Section 593.1(b). In
considering the application of the latter section to these same circumstances,
we conclude that there is no need to change our reasoning thereon. We conclude
that claimant's loss of employment was involuntary and therefore Section
593.1(b) is inapplicable thereto.
The initial
determination of the local office disqualifying claimant from receiving
benefits on the ground that she voluntarily left her employment due to marriage
is overruled. The decision of the referee is reversed. (October 22, 1962)
Index
No. 1130-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
December
4, 1962
INTERPRETATION
SERVICE - BENEFIT CLAIM
MISCONDUCT
Morality of Employee
Appeal Board Case Number 95,799
MISCONDUCT, QUESTION OF BOOKMAKING AWAY FROM PREMISES
A misconduct
disqualification applies to a brokerage clerk who is discharged for accepting
bookmaking bets in the building in which employed since, in view of the
employer's business, such action was detrimental to the employer's interest
because the public impression of his employees' high integrity is of the
essence of their employment.
Referee's Decision: The initial determination of the local office
disqualifying claimant from receiving benefits effective June 27, 1962, on the
ground that he lost his employment through misconduct in connection with his
employment is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a brokerage clerk, was employed for
six years until June 27, 1962. He was discharged following his arrest for
bookmaking. He was convicted of accepting a bet in the lobby of the building
which the employer's offices are located. No decision on claimant's appeal from
his conviction has been rendered as yet.
Appeal Board Opinion and
Decision: We do not agree with
the referee's decision that is has not been shown that the offense was in
connection with claimant's employment. In accepting a bet in the building where
the employer's offices are located, claimant was engaging in conduct that was
detrimental to the employer's interest and likely to cause the employer damage.
It is clear that in view of the employer's business, the public impression that
its employees are of the highest integrity is of the essence of their
employment. Accordingly, claimant lost his employment through his misconduct in
connection therewith.
The initial
determination of the local office is sustained. The decision of the referee is
reversed. (November 21, 1962).
Index
No. 905-5
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January
11, 1963
INTERPRETATION
SERVICE - BENEFIT CLAIM
DETERMINATION OF BENEFITS
Experience Rating Charges
Appeal Board Case Number 96,O87
EXPERIENCE RATING CHARGES, QUESTION OF
If the Local Office
fails to act on information received from a base period employer that work is
available for the claimant, the employer's account is not charged with benefits
paid to the claimant during the period when the employer had work for him.
Referee's Decision: The determinations of the Industrial
Commissioner assessing experience rating charges against the employer's account
with respect to benefit payments made to a former employee for the statutory
weeks ending April 29 and May 6, 1962 are sustained.
Appealed By: Employer
Findings of Fact: C.S., a former employee of the employer
herein, had filed a claim for benefits on March 26, 1962. C.S. had been
employed up to March 20, 1962 by the employer for 50 weeks during his base
period. Subsequent to the termination of such employment, C.S. became employed
by another employer for whom he worked for one week through March 26, 1962. No
claim for benefits was filed by C.S. until after the termination of the
employment in which claimant engaged subsequent to his employment by the
employer herein. Since it appeared from the information furnished by C.S. upon
the filing of his claim that the employer herein was one of his base-year
employers, the local office required the employer herein to furnish written information
with respect to the period of the employment of C.S., his total earnings, his
last day of work and specifically to state whether the employer knew of any
reason why the said C.S. may not be eligible for benefits. The employer
complied with the request and on March 29, 1962, mailed to the local office its
reply. The employer in response to the inquiry with respect to its knowledge of
any reasons for ineligibility, indicated that claimant had quit voluntarily
without notice or cause and that work was now available for him. The local
office personnel concluded that no disqualification would be imposed by reason
of the circumstances under which the employment of C.S. by the employer herein
was terminated for the reason that such employment was not the last employment
of C.S. prior to the filing. However, the local office personnel inadvertently
failed to give significance to the employer's statement that work was available
for the claimant and, therefore, contrary to prescribed procedure, the local office
personnel failed to refer claimant to the employer for reemployment.
Notwithstanding the information received from the employer, the local office
personnel initially determined that C.S. was eligible for benefits without
disqualifying conditions and on the basis of such initial determination,
benefits were paid. For the weeks ending April 29 and May 6, 1962,
benefits aggregating $41 were paid C.S. and experience rating
charges were made against the employer's account for such payments.
The employer had work
available for C.S. continuously from at least March 20, 1962 to at least May
23, 1962, when it made a timely protest of experience rating charges which had
been assessed against it.
Appeal Board Opinion and
Decision: The employer contended
that the benefits paid to C.S. should not have been charged against the
employer's account for the reason that the initial determination ruling
claimant eligible for benefits was issued inadvertently by the local office
personnel who failed to follow prescribed procedure and failed to refer
claimant to the employer for reemployment in pursuance of the information which
the employer had furnished to the local office. Although it was conceded on
behalf of the Commissioner's representative that there appeared to be merit in
the contention advanced by the employer, the Commissioner was, nevertheless,
constrained to overrule the employer's protest because of the principle
enunciated by us in Appeal Board 59,640 and Appeal Board, 44,169. On this
appeal by the employer, written statements were submitted on behalf of the
Industrial Commissioner urging us to reconsider the principles set forth in the
cited cases and upon such reconsideration to rule that the experience rating
charges should be removed from the employer's account and the benefits paid to
C.S. should be charged against the general account. It is pointed out by the
Commissioner that in view of the omission of the local office representative in
having inadvertently failed to refer C.S. for reemployment, fairness to the
employer requires that it should not be penalized by the experience rating
charge against its account.
In Appeal Board 44,169
and Appeal Board, 59,640, we reasoned that the provisions of Section 581.1(e)
required that the base-year employer's account be charged with the benefits
paid to its former employee, notwithstanding the failure of the local office
representatives to give attention to the base-year employer's
report that it was prepared to rehire the claimant.
We have now reviewed the
statutory provisions and conclude that Section 577 of the Law authorizes the
charging of the benefits paid to C.S. to the general account rather than to the
account of the employer. Since the employer was actually prepared
to rehire C.S., and since the offer of rehire was not conveyed to the claimant
only because of the inadvertence of the local office representatives, it would
be inequitable and unjust to penalize the employer, by charging its account
with the benefits paid to C.S. without having first tested his eligibility by
exposing him to the job opportunity made available, for him by the employer.
The employer should not suffer by reason of error on the part of the local
office personnel (Compare with Matter or Rae Horowitz, 271 App.
Div. 765, affirming Appeal Board, 12,485).
In view of the
foregoing, we now renounce the rule set forth in Appeal Board
44,169 and 56,640 and we hold that the charges made against the account of the
employer should be canceled.
The determination
imposing experience rating charges against he employer with respect to benefits
paid to C.S. for the statutory weeks ending April 29 and May 6, 1962 are
overruled and such experience rating charges are canceled. The decision of the
referee is reversed. (December 28, 1962)
Index
No. 755A.1
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
January
21, 1963
INTERPRETATION
SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Restriction – Work
Appellate Division Decision
Matter of Louis Reiger
Appeal Board No. UCFE-522-61A
PART-TIME TAXI DRIVER
DESIRING ONLY PRIMARY OCCUPATION
When a claimant, because
of a desire to seek work in his "primary" occupation (public
relations), is unwilling to perform obtainable full time employment in another
occupation (taxi driver) in which he has extensive experience, though usually
and in recent years limited to weekends and days off from other work, he is not
available for work within the meaning of Section 591.2 since that provision
requires a claimant to be ready, willing and able to work, not only in his
usual employment, but also in any other for which he is reasonably
fitted by training and experience.
APPELLATE DIVISION DECISION
Appeal is taken (by the
employer) from a decision of the Unemployment Insurance Appeal Board which,
upon an application to reopen, rescinded a Referee’s decision holding claimant
ineligible for benefits, by reason of his refusal of full time employment as a
taxicab driver (see Labor Law, §591, subd. 2), and reinstated the initial
determination allowing benefits.
We accept the board’s
finding that claimant has been engaged in public relations work, although the
term is not over-specific and the duties of claimant’s past positions were not
shown in any great detail. For over 25 years he has ad a taxicab driver’s
license, renewed annually upon his application, and, except for time spent in
military service, has operated cabs in New York City for the appellant employer
and others during all of that period, usually on weekends and on days off from
other employments but for five days per week during one period of over three
years preceding 1953. So far as appears, his last employment, other than as a
cab driver, terminated in 1960, after which he continued his part-time work for
the cab company, the appellant here, which has offered him regular, full-time
work; but this he has refused, on the ground that he would not then have
sufficient time to pursue his efforts to obtain employment in the field of
public relations.
The initial
determination of claimant’s entitlement to benefits was overruled by a Referee
on the express authority of this court’s decision in Matter of Tucker
(Lubin) (8 A.D. 2d 859). The case was reopened by the Unemployment
Insurance Appeal Board, however, and the Referee’s decision rescinded and the
initial determination sustained after Tucker was reversed by
the Court of Appeals (8 N.Y. 2d 1145). It seems clear, however, that our
decision in Tucker was reversed because this court was found
to have erred in overruling a purely factual determination which the Court of
Appeals held was supported by substantial evidence. The statute provides:
"No benefits shall be payable in to any claimant who is not capable of
work or who is not ready, willing and able to work in his usual
employment or in any other for which he is reasonably fitted by
training and experience." (Labor Law, §591, subd. 2; emphasis
supplied.) In Tucker, the Court of Appeals held "that there was adequate
support in the record for the board’s finding that claimant was not reasonably
fitted by training and experience to take a position as typist". (8 N.Y.
2d 1145, 1147.) In this case there was no finding that claimant was not
"reasonably fitted by training and experience" for work in his
"other" employment; and in view of his continuous experience in the
latter work and his annual licensure, over a period of many years, by the New
York City bureau having jurisdiction, it could not well be found or, indeed,
sensibly argued that he was not so fitted. The decision of the board in this
case proceeds upon its finding of "primary occupation", a ground for
which the Tucker case seems to us to afford no authority and for which no
support can be found in the clear and unambiguous language of the statute. The
board’s conclusion that what claimant "has done in the past 25 years
establishes that his primary occupation is as a public relations man"
seems to us irrelevant and, more important, an improper basis for the decision
and one unauthorized by the statutory provisions as to any other
employment for which a claimant is fitted. The test of "primary
occupation", which the board thus adopts, would render largely ineffective
the alternative provision respecting "any other" appropriate
employment, and this despite the clear fact that the Legislature has placed the
latter in complete parity with "usual employment". While the board’s
term, "primary occupation", might conceivably be equated with
"usual employment" for some purposes, certainly it may not be when
the effect is to exclude all employments but the "primary" one. (See
Matter of Delgado [Corsi], 278 App. Div. 237.) The result seems harsh only if
the purpose of the statute be lost sight of. "[T]he full utilization of
all skills is not the effective test to be applied under the statute, but
rather the availability of work for which the claimant is fitted by training
and experience". (Matter of Greaser [Corsi], 279 App.
Div. 702, 703).
The decision should be
reversed and the Referee’s decision reinstated, without costs. (November 30,
1962)
COMMENTS
- This decision gives a new direction in the application
of the "fitted by training and experience" clause of the
statutory provision on availability. Previously, a claimant was held
unavailable on these grounds in similar circumstances only if the other
occupation in which he is now unwilling to work had characteristics such
as forming his "principal source of income during base period"
(A-750-1191) or representing "substantial recent (full time)
employment" (A-750-1357). It now appears that any employment
for which the claimant is reasonably fitted by training and experience
must be considered; that it is immaterial whether the recently performed
work in such occupation was full time; and that the claimant’s vocational
goal and the comparative skills of the occupation are not controlling. In
determining whether a claimant is reasonably fitted by training and
experience, a factual question is presented, the answer to which depends
upon the specific circumstances of the case.
- Availability is a flexible concept. Therefore, caution
is indicated against an indiscriminate application of the principle which
the decision reflects.
- First of all, if a claimant is reasonably fitted by
training and experience for more than one occupation and is willing
accept employment in any of such occupation, he should not be held
unavailable because of lack of efforts in one occupation provided his
efforts to obtain employment in the other occupation are reasonably
diligent and the employment he is actively seeking is reasonably
obtainable.
- Obviously, a claimant need not be available for jobs
which, if specifically offered, he would have "good cause" to
refuse. Therefore, if there are particular conditions which would
represent such "good cause," (health reasons, compelling
personal circumstances, etc.) these are factors to be considered in
evaluating the availability of a claimant who is unwilling to work in a
given occupation although it is one of those for which he may be
reasonably fitted by training and experience.
Index
No. 1580A-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March
4, 1963
INTERPRETATION
SERVICE - BENEFIT CLAIM
MISREPRESENTATION
Penalty Period
Appeal Board Case Number 98,038
FORFEIT DAYS IMPOSED, QUESTION OF
The forfeiture penalty
for a wilful false statement is only 20 effective days, although benefits were
paid, if the facts do not warrant a disqualification so that no overpayment
resulted, from the false statement.
Referee's Decision: The initial determination of the local
office holding that claimant wilfully made false statements to obtain benefits
by reason of which a forfeiture of 24 effective days was imposed as a penalty
in reduction of claimant's future benefit rights is affirmed.
Appealed By: Claimant
Findings of Fact: Claimant, a porter, was discharged for
inadvertently failing to report for work on a Saturday. When he refiled his
claim for benefits, he attributed his loss of employment to no business and no
work. Claimant knew the reason for his discharge and knew that it was not
because of lack of work.
Appeal Board Opinion and
Decision: The insurance office
was entitled to know the true reason for claimant's termination of employment.
The information furnished by claimant was false and was known by him to be
false. He wilfully made a false statement to obtain benefits when he told the insurance
office that the reason for his discharge was no business and no work. However,
since no overpayment resulted from this wilful false statement, the forfeiture
should be reduced to 20 effective days.
The initial
determination of the local office holding that claimant wilfully made a false
statement to obtain benefits, by reason of which a forfeiture of 24 effective
days was imposed as a penalty in reduction of his future benefit rights is
modified to reduce the forfeiture to 20 effective days and as so modified is
sustained.
The decision of the
referee is modified accordingly, and as so modified, is affirmed. (February 14,
1963)
COMMENTS
Although the principle
which the case reflects is not new, the decision is here reported for
reemphasis and to implement the Special Bulletin on "Standards for the
Imposition of Forfeit Days" (A-710-2l).
Serial
No. 1180-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March
27, 1963
INTERPRETATION
SERVICE - BENEFIT CLAIM
MISCONDUCT
Other Offenses
Union Activities
Appeal Board No. 87,617, et al
MISCONDUCT DISQUALIFICATION - MISCONDUCT IN CONNECTION WITH STRIKE
Participation by a
claimant in an industrial controversy, regardless of its merits (see
A750-1928), is insufficient grounds for disqualification for misconduct when
the claimant is discharged because of his actions in connection therewith,
provided such actions do not overstep the bounds of peaceful picketing and are
not actions evincing a wilful and wanton disregard of the employer's interests
or a deliberate violation and disregard of standards of behavior which an
employer has a right to expect of his employees.
Appealed By: The employer and the Industrial Commissioner
appeal from the decision of the referee filed December 5, 1961, insofar as it
overruled the initial determinations of the local office disqualifying
claimants from receiving benefits effective November 3, 1960 on the ground that
they lost their employment through misconduct in connection with their
employment.
Referee's Findings of
Fact: The 24 claimants
involved herein were employed in various capacities as production workers by a
plastic and chemical manufacturing corporation. They were members of the
International Association of Machinists, AFL-CIO and Local Lodge 2112 thereof.
The contract between the bargaining unit and the employer during the period in
question was in effect from August 1, 1960 to August 2, 1961. Section 23 of the
union contract provided in part as follows:
(h)
There shall be no lock-out by the Company and no strike walk-outs,
suspension retarding or stoppage of work by employees during the
term of this agreement.
(i)
Subject to the terms of this agreement, the Company reserves all
of its fundamental rights as an employer to hire; promote; transfer;
discipline; to maintain discipline and efficiency of employees, and
to discharge for just cause.
The contract also
provided a procedure for the submission of all grievances with the terminal
step being impartial arbitration binding on all parties.
On October 26, 1960 the
employer advised the bargaining unit that its supervisory force was being
reduced and that three salaried supervisory employees were being returned to
their former jobs and restored to the bargaining unit with seniority to date
back to their last respective dates of hire. At the time a number of union
members were on layoff status. Opposition to the company's action was expressed
by officials of the local union on the ground that it was a breach of the union
contract. A request was made of the employer that it shut down the plant to
permit a meeting of the union membership, which request was denied. The subject
of the dispute was discussed at a regular meeting of the local on October 26.
It was decided to seek advice and guidance from the international union. At a
special meeting of the local held on Saturday, October 29, the district
representative of the international union was present and addressed the
membership. The district representative stated that the union contract was
silent concerning the matter in dispute and he expressed the view that the
employer was in violation of the contract in returning the supervisory
employees to the bargaining unit and that, therefore, the union contract was no
longer in effect. The matter of any further action was left in the hands of the
membership of the local. No official strike vote was taken.
Following this meeting,
the union local addressed a letter to the employer protesting the company
action as an unfair labor practice and stating that the signed labor agreement
contained no provisions to do as the company suggested. Letters were also sent
to the three ex-supervisors stating that their displacement on the seniority
list of hourly rated workers who had become union members was contrary to the
rules of the local.
The employer urged that
the dispute be taken up by following the grievance procedure as set forth in
the contract but officials of the local expressed refusal to follow that
course. On October 30 the employer offered to waive the first two steps of the
grievance procedure.
Commencing with the
shift starting at 12:01 a.m. on Monday, October 31, the production employees
numbering about 625 went out on strike. The strike ended at 12:01 a.m. on
November 3. On the first day of the strike, a few employees reported for work
at the phenol plant where their absence might have resulted in damage to
equipment. On the second day, the phenol department was taken over by salaried
personnel and the strike became complete.
On October 31, prior to
8 a.m., about 250 to 300 production workers appeared at the plant entrance and
gathered on the street opposite the main gate. There was considerable
discussion among the workers. Groups were formed and the men moved about from
one location to another. A tent was erected and coffee was served. No incidents
occurred.
On November 1, picketing
of the employer's plant began. In the afternoon a group of 50 to 101 strikers
marched in pairs and in a continuous circle in front of the main gate. Some
cars or trucks were prevented from entering the plant or were delayed for short
periods. Police officers were called to the scene.
Police officials
determined which cars were entitled to enter the plant and some were turned
away. On occasions, police officers broke through the closely formed lines of
pickets, in order to open an entrance through the main gate for automobiles
entitled to enter the plant. Other groups of pickets gathered at the company
loading dock and about the railroad tracks leading into the plant. There was
considerable shouting and pushing and shoving at the times the police officers
were opening passageways into the plant. On occasions, some of the claimants
were observed to be standing in front of motor vehicles about to enter the
plant, or between the vehicle and the plant entrance. There was no organized or
individual defiance of the police authority. No incidents involving personal or
group violence resulting in personal injuries or damage to property occurred.
There was no shouting of insults, vituperation or use of abusive language
observed.
The mass picketing
continued on November 2 to about 5 p.m. Through the intervention of officials
of the international union, a meeting of the executive board of the local union
was held on that day. On the previous day the General Vice-President of the
International Union had telegraphed the president of the local urging all union
members to return to work and to adjust the issues in accordance with the
grievance procedure. It was decided following the meeting of November 2, to
discontinue the strike on that day and settle the differences through the
grievance procedure. As a result, the strike ended at midnight on that day.
Prior to the cessation
of the strike, company officials met and decided to discharge 26 employees,
including the claimants herein, because of their violation of the no strike
clause in the bargaining agreement and for "other misconduct." These
persons were selected on the basis of the employer's observations of their acts
and conduct during the course of the strike. Some of the alleged offenses taken
into consideration were: apparent leadership in the strike; shoving and
pushing; shouting directions to strikers and pickets; taking groups of strikers
from place to place; persuading employees not to go to work; participating in
surges and special massing of pickets to prevent entry into the plant; talking
with (and in one case swinging at) drivers of motor vehicles at or near the
picket lines; standing in front of railroad cars and in front of particular
vehicles; carrying a sign; official connection with the local lodge on the part
of those engaged in such acts.
Thereafter, the local
lodge filed a grievance against the employer charging (1) that the employer
violated the union contract by returning salaried employees to the bargaining
unit, demanding also that employees on layoff with appropriate seniority be recalled
to fill the jobs occupied by these salaried workers, and (2) that the employees
were discharged in violation of the union agreement. The arbitration board
decided by majority vote that the employer did not violate the contract when it
returned salaried employees to the bargaining unit. With respect to claimants,
the discharges were upheld in four instances, but were set aside and converted
to suspensions of various lengths of time in the remainder.
Initial determinations
were issued by the local office suspending the benefit rights of claimants for
seven consecutive weeks effective October 31, 1960 on the ground that they lost
their employment because of an industrial controversy in the establishment in
which they were employed. Claimants did not contest such determinations. By
further initial determinations, claimants were disqualified from receiving
benefits effective November 3, 1960 on the ground that they lost their
employment through misconduct in connection with their employment.
Appeal Board Opinion and
Decision: The sole issue on
this appeal is whether or not claimants' loss of employment was due to
misconduct in connection with their employment, as contemplated by Section 594
of the Law. The first phase of this issue which we must consider is whether or
not the participation by claimants in a strike which was in violation of a no
strike clause in the collective bargaining agreement, of itself, constituted
misconduct in connection with employment within the meaning of the Unemployment
Insurance Law, as contended by the employer and the Industrial Commissioner.
The second phase is whether or not claimants committed individual acts of
misconduct during the pendency of the strike, as distinct from their
participation in the strike, and will be discussed later.
The initial
determinations suspending the benefit rights of claimants effective October 31,
1960 on the ground that they lost their employment because of an industrial
controversy in the establishment in which they were employed, were not contested
by claimants and have not been challenged by any of the parties hereto. It is
readily apparent that the disqualifications for misconduct, insofar as they are
based on participation in this so-called "illegal" strike, arise out
of the same facts as led to the strike suspensions. The question of whether or
not both the strike suspension and the misconduct disqualification can be
simultaneously applied has never been decided in our courts. Notwithstanding
our decision in Appeal Board, 42,816-54, a look backward at the history of
strike legislation in New York State as applied to unemployment insurance,
should cast some light in that direction.
The first attempt to
pass an unemployment insurance bill in this State was in 1933. The proposed
1933 act provided for no stoppage of benefits in the case of loss of employment
due to a labor dispute. It did contain a provision for an extended waiting
period in the case of loss of employment through misconduct, but specifically
provided that "leaving or losing employment due to a trade dispute"
shall not constitute misconduct. (S. 2385, Int. No. 208; A. 2878, Int. No.
533). The proposed act of 1934 provided for an extended waiting period for loss
of employment due to strikes but specifically limited it to strikes "not
caused by a breach of agreement on the part of the employer" or by other
acts abridging the rights of employees (S.2162, Int. No.630; A. 2714, Int.
No.826). The original Unemployment Insurance Act (Chapter 468 of the Laws of
1935) provided extended waiting periods of ten weeks for loss of employment
either through misconduct or because of a strike, but significantly, it cast
them in the alternative, as follows:
§ 504. Waiting period. *
* *
2. An
employee shall not be entitled to benefits except for
unemployment which continues subsequent to a waiting period
of ten weeks:
a.
if he has lost his
employment through misconduct in connection with his employment; or
b.
if he has lost his
employment because of a strike, lockout or other industrial controversy in the
establishment in which he was employed; or
(Underscoring
supplied)
In 1941, the concept of
an extended waiting period was dropped and in its place was substituted a
suspension of benefit rights for seven consecutive weeks. The then Section 504
(a) provided the identical suspension for loss of employment through misconduct
or because of a strike. The key language "lost his employment because of a
strike, lockout or other industrial controversy in the establishment in which
he was employed" and the seven weeks suspension period have remained in
the statute unchanged to this day. The penalty for loss of employment through
misconduct, however, was again changed in 1958 into a disqualification of 42
consecutive days. At the same time the misconduct provision was removed from
Section 592 labeled "Suspension of accumulation of benefit rights"
and placed in Section 593 labeled "Disqualification for benefits."
The present disqualification for misconduct which can be broken only by
subsequent employment or earnings in stated amounts was enacted in 1960.
(Chapter 783 of the Laws of 1960).
Thus, it becomes
apparent that throughout the history of this legislation the Legislature has
regarded and treated the misconduct and strike provisions as separate
disqualifications. While it has not varied the period of withholding of
benefits in strike cases since 1941, the penalty in misconduct cases has been
changed several times. The intention to apply only the suspension of benefits
provision to all cases involving industrial controversies seems clear.
As stated by Mr. Justice
Foster in Matter of Burger, et al, 277 App. Div. 234, affirming
Appeal Board, 19,311-49; affirmed 303 N.Y 654:
The main purpose of
Section 592 is clear. The State is to stand aside for a time, pending the
settlement of differences between employers and employees, to avoid the
imputation that a strike may be financed through unemployment insurance
benefits ...
This statement has not
only received general acceptance but it is in keeping with the argument of the
Industrial Commissioner presented at page 20 of his brief in that case as
follows:
It is not the duty of
the Industrial Commissioner to inquire into or determine the merits of any
strike or other industrial controversy. With that in mind it is clear that
592.1 is not penal in nature, but was enacted to furnish what the Legislature
deemed a reasonable period during which the State stands aside pending the
settlement of the differences between the employer and the employees. This
condition is necessary in order to avoid any criticism which might be directed
toward the State for financing strikes through unemployment insurance benefits.
The provision also avoids the necessity of examining the merits of an
industrial controversy.
The Courts have since
consistently followed the line that the merits of the industrial controversy
are immaterial to a decision on the issue of whether or not an industrial
controversy existed. No distinction has ever been made between strikes which
violate a law or a contract provision and those which do not. In Matter
of Crealey, 280 App. Div. 845, reversing Appeal Board, 27,071-51, the Court
held that an industrial controversy existed within the statute even though the
employer had obtained an order in the Supreme Court enjoining picketing on the
ground that no labor dispute, as defined by Section 876 a. of the Civil
Practice Act, existed at its establishment. In Matter of Sprague, 4
App. Div. 2d 911, reversing Appeal Board, 54,608-56, 54,609-56, 54,610-56; an
industrial controversy was found to exist even though there were no differences
between claimants and their respective employers, where the claimants became
unemployed due to a work stoppage at an air base, caused by the establishment
of a picket line by a union for the purpose of exerting pressure on the Air
Force to reinstate a contract for the employment of union labor. So also
in Matter of Klein et al, 15 App. Div. 2d 201, reversing Appeal
Board, 67,939-59, affirmed 12 N.Y. 2d 678 where the Court found an industrial
controversy to have existed when the employer discharged 18 window trimmers who
refused to comply with conditions of continued employment imposed by the
employer, notwithstanding that no picketing or other manifestations of an
industrial controversy took place prior to the discharges.
That this approach to
the question of industrial controversy is consonant with authorities in other
jurisdictions appears from the decision in Fash v. Gordon, III 210
75 N.E. 294 where a union raised the contention that no labor dispute existed
on the ground that a labor dispute ceases to be after a decision concerning its
merits has been determined by a board or government agency and the employer
refused to abide by such determinations. There the Court said in its opinion at
page 298:
While no Illinois
decision has been called to our attention, the almost unanimous holdings of
jurisdictions where the question has arisen have been that the reasonableness
or Unreasonableness of the demands, or the merits of the dispute, have no place
in the determination of the question whether a labor dispute exists. In
re. Steelman, 219 N.C. 306, 13 S.E. 2d 554; Johnson v.
Pratt, 200 S.C. 315,20 S.E. 2d. 865; Board of Review v. Mid
Continent Petroleum Company, 193 Okl. 36, 141 P. 2d. 69; W.R. Grace
and Company v. California Employment Commission, 24 Cal. 2d. 720, 151 P 2d.
215; Baker v. Powhoton Mining Company, 146 Ohio St. 600, 67
N.E. 714 and many other decisions...
Irrespective of the
rights or obligations of the parties under the written contract, an industrial
controversy existed in the instant cases. The right of labor to organize or to
strike is a fundamental one. The strike with which we are here dealing,
represented concerted action on the part of the whole union membership in an
effort to air their grievance and a determination by them to refrain from
working until the difference was settled. That the use of the strike weapon may
be in derogation of a written agreement does not abridge that right, since
there may be times that the very existence of the union is threatened
(See Mastro Plastics v NLRB, 350 U.S. 278). It is generally
recognized in federal decisions that disputes relating to violations of
no-strike clauses are arbitrable (Signal Stat. Corp. v. Local 475,235
F. 2d 298 (C.A. 2d Cir.), Yale & Towne Mfg. Co. v. Local 1717, F.
2d (G.A. 3d Cir.), Matter of Scott, 8 N.Y.2d 414). In fact, the
arbitrators here were divided in their opinion on the issue of the construction
of the written contract.
If the claimants herein
lost their employment due to a strike or industrial controversy, then the
disqualification prescribed by the Legislature was satisfied by the imposition
of the strike suspension period. The precise issue here presented was
considered recently by the Circuit Court in Michigan in Finnean and
Papiersy v. The Appeal Board et al and Consumers
Power Co (Circuit Court Ingham County March 31, 1958) and Harrington
v. Appeal Board, et al and Sutherland Paper Co. (Circuit Court,
Ingham County, November 10, 1958),and it was held that the disqualification
under the labor dispute provision applies rather than the misconduct provision.
In the Finnegan and Papiersy case, supra, the Court said:
It is reasonable to
conclude that the Legislature must have intended that subsection (1)(b) [the
labor dispute provision] should provide the disqualifications relating to labor
disputes in order to foreclose the possibility of indirectly financing persons
who are actively engaged in work stoppage during the time they are so engaged
and are consequently unemployed. Otherwise, many of the provisions of the Act
could be used interchangeably to inflict penalties of long duration in cases
where unemployment arises out of industrial controversies. (Also see Canter
v. The Appeal Board et al and the Budd Co., Circuit Court, Wayne
County, December 18, 1958; The Labor Market and Employment Security, U.S.
Department of Labor; August, 1959, pp. 55-58)
To go further and impose
the misconduct disqualifications for mere participation in the strike would
require an inquiry into the merits. We are now convinced that this is not the
proper forum to inquire into or to determine the merits of such a controversy
or to decide questions of legality on the part 0£ either of the opposing sides.
If there has been a breach of contract between the parties, adequate remedies
are provided by law for the aggrieved party. We conclude, therefore, that the
disqualifications for misconduct cannot be sustained on the basis of the mere
participation by the claimants in the industrial controversy, regardless of its
merits or legality. Insofar as our own decision in Appeal Board, 42,816-54 is
in conflict with this view, the rule enunciated in said decision is rescinded.
We proceed now to the remaining question of whether or not the claimants by
individual acts, independent of their mere participation in the strike,
committed misconduct so as to be subject to the disqualification provisions of
Section 593.3 of the Law. We recognize that acts or conduct of claimants
committed during the course of the strike or on a picket line may constitute
misconduct and subject them to disqualifications on that ground. We so held in
Appeal Board 80,096-61 where we found to be misconduct actions characterized as
conduct which "overstepped the bounds of legal and peaceful
picketing"; conduct which "evinced a wilful and wanton disregard of
the employer's interests and was in deliberate violation and disregard of
standards of behavior which an employer has a right to expect of its
employees"; actions which "were sufficiently identified with violence
or threat of violence to warrant a finding that their subsequent loss of
employment was occasioned by acts of misconduct" and "aggressive acts
of a deliberate nature resulting in prejudice to the employer's
interests."
The employer selected
the claimants for discharge on the basis of its observations of their conduct
during the course of the strike. Protracted hearings were held before the Board
at which each individual case was separately treated. Voluminous testimony was
taken and numerous exhibits including photographs were received in evidence. We
have carefully examined the entire record in the case and we reach the
conclusion that the alleged acts of misconduct charged were not of such a
nature as to warrant a finding of misconduct in connection with employment
under the Law.
We do not deem it
necessary to separately discuss each case. The employer's charges in the main
fall into two categories. First, there are the activities of certain claimants
on October 31 in allegedly instigating, developing and maintaining the strike,
persuading others not to work and assuming leadership of the strikers, all in
violation of the no-strike clause of the labor agreement. Secondly, there are
those based on the alleged wrongful conduct on November 1 and 2 of the same and
other claimants who were described as "overly active" in connection
with the mass picketing which took place on those days.
The activities of the
claimants in the first category were described by the employer's representatives
generally as "overly active" and as being more than the roles of
on-lookers or bystanders. Some of the acts occurred prior to the strike. The
charges that some of the claimants persuaded others not to report for work are
not supported by any direct evidence. As far as the record shows, claimants who
were union officers and who held discussions with groups of strikers may well
have been approached in their official capacity for information as to the
progress of the strike. The exercise of leadership by itself, absent overt acts
of a wilful or menacing nature and overstepping the bounds of propriety is not
misconduct. We hold with respect to the charges in the first category that the
proof falls short of showing any overt acts which might be branded as
misconduct within the meaning of the Unemployment Insurance Law.
The second category of
charges is more closely allied with the field of violence and aggressiveness.
However, the evidence before us does not reflect acts of a sufficiently serious
nature to warrant a holding of misconduct. The shouting, pushing, shoving and
participation in the surges during the mass picketing was not shown to be of
such a violent or menacing nature as to brand these acts as deliberate and
wantonly in disregard of the employer's interests. The charges stem largely out
of incidents arising of the mass picketing. About 1OO strikers were involved in
the mass picketing at a time. The evidence does not show that any of the
individual claimants were the leaders or the motivating force in these
activities. It would appear that claimants who were charged in this
respect in most instances were merely part of a mass action and by pure chance
were found in particular locations and in contact with the police officers at
the moment of a breakthrough. There is absent here, any substantial proof of a
design on the part of claimants to create an atmosphere of fear and
intimidation with respect to their co-employees, or of intentional aggressive
acts of violence or belligerence warranting the disqualifications.
We conclude, therefore,
that claimants are not subject to disqualifications for loss of employment
through misconduct in connection with their employment within the meaning of
the Unemployment Insurance Law.
The initial
determinations of the local office suspending the benefit rights of claimants
for seven consecutive weeks effective October 3, 1960 on the ground that they
lost their employment because of an industrial controversy in the establishment
in which they were employed remain in effect, but such suspension terminated
upon the settlement of the industrial controversy on November 2, 1960.
the initial
determinations of the local office disqualifying claimants from receiving
benefits effective November 3, 1960 on the ground that they lost their
employment through misconduct in connection with their employment, are
overruled. The decision of the referee is affirmed. (March 11, 1963)
Index
No. 1460A-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June
16, 1963
INTERPRETATION
SERVICE - BENEFIT CLAIM
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without Work
Vacation Period
Appeal Board Case Number 100,658
VERBAL DESIGNATION OF VACATION PERIOD
Advance oral
notification of plant shutdown for vacations, even though not in writing, to
which claimants or their representatives have acquiesced, satisfies the
requirement of Section 591.3(b) so that claimant was ineligible because of
"paid vacation."
Referee's Decision: The initial determination of the local office
holding that claimant was ineligible to receive benefits effective July 2,
1962, through July 8, 1962, on the ground that such period was a paid vacation
period for which no benefits are to be paid is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a knit goods worker, was
substantially employed both the week before and the week after the week ending
July 8, 1962. Although the employer did not post any written notice with
respect to vacations, about two weeks before June 29,1962, it notified the
Union shop chairlady that the shop would be closed for vacation purposes during
the week ending July 8, 1962, and claimant was so advised by the shop chairlady
about a week prior to June 29.
The establishment was
closed during the week in issue and on June 29, 1962, claimant received a
vacation allowance of $83 for this week.
Appeal Board Opinion and
Decision: The sole question
which is here presented is whether the failure of the employer to give written
notice of the vacation period causes claimant to be eligible for benefits
notwithstanding that he admitted the receipt and advance verbal notification
and of the vacation payment. Under the circumstances of this case, our
statement in Appeal Board, 68,256 is applicable as follows:
"We feel it would
do violence to the purpose and intent of the law as well as to the public
policy of the State to construe the vacation period provisions of the Law in
such manner as to justify the referee's decision.
It is common knowledge
that the vast majority of employing establishments throughout the State,
especially the smaller ones, do not designate vacation periods in writing. Such
arrangements are frequently made orally between supervisors and workers.
Typical of these situations is the usual vacation arrangements for the vast
majority of clerical and executive employees. Rarely is there a written formal
designation of the annual vacation period. If the referee's construction of
Section 591.3 of the Law were accepted such employees would be deemed to suffer
"unemployment for which benefits are payable." It is obvious that the
Legislature never contemplated such a result.
"We believe that
the Legislature did not intend to create an escape hatch to allow payment of
unemployment insurance benefits simultaneously with vacation pay in situations
as in this case we deem it sufficient that the vacation period herein was so
designated by the employer and the claimant in advance and we further hold that
the omission of the writing does not render the section ineffectual."
Our decisions in appeal
Board 95,055 and 95,378, upon which the referee relied, are inapplicable since
in those cases the employers did not give any prior notice of vacation period,
whereas here it is conceded that the employer notified the shop chairlady in
advance and the latter advised claimant that the week ending July 8 was to be a
vacation week.
We, therefore, hold that
claimant is ineligible for benefits for the week ending July 8, 1962, on the
ground that such week constituted a paid vacation period.
The initial
determination of the local office is sustained. The decision of the referee is
reversed. (June 4, 1963)
COMMENTS
In Release No.
A-750-1505, under similar circumstances, it was stated that this principle
"will as a rule only apply to cases of staggered vacation where the
vacation time is scheduled on an individual basis" and that it "will
rarely, if ever, apply to cases of plant shutdown for vacation purposes,
affecting all workers alike." Those comments are now obsolete and should
be so marked.
As an explanation of the
phrase "to which claimants or their representatives have acquiesced"
it should be noted that failure to protest an employer's advance oral
designation of a vacation period constitutes "acquiescence."
Index
No. 1625-2
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
8, 1963
INTERPRETATION
SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Personal Reasons
Appeal Board Case 101,790
UNEMPLOYMENT STEMMING FROM SALE OF CORPORATE "BUSINESS"
Where claimant, a
principal stockholder, participated in the decision to dispose of the corporate
"business" (a hotel), not because of a compelling need but
because of a profitable economic advantage, such action which resulted in
claimant's unemployment is tantamount to voluntary leaving without good cause.
Referee's Decision: The initial determination of the local office
disqualifying claimant from receiving benefits effective January 3, 1963, on
the ground that she voluntarily left her employment without good cause is
overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant was employed as an executive
housekeeper at a residence hotel, which was in the vicinity of a large
university. Claimant owned 25 per cent of the stock in the corporation which
owned and operated this hotel. Claimant's sister and brother owned the balance
of the stock. Claimant became unemployed when the corporation sold its only
asset, namely, the hotel at which she was employed.
Claimant and her fellow
stockholders sold the hotel because, in their view, there was too much
aggravation for the compensation which they derived from the hotel and they
were desirous of disposing of the property before the rents might be further
reduced on the basis of a proceeding pending before the Rent Commissioner.
They, therefore, elected to avail themselves of the opportunity of selling the
property at a profit to the university, notwithstanding that claimant knew that
such sale would produce her unemployment because the university had its own
staff to operate the hotel.
Appeal Board Opinion and
Decision: Recently, in Appeal
Board, 90,801, we had occasion to determine whether a loss of employment which
results from a claimant's sale of the stock of the corporation in which he had
a controlling interest and by which he was employed, constitutes a voluntary
leaving of employment within the purview of the Unemployment Insurance Law. We
concluded that, under such circumstances, there is a voluntary leaving of
employment and that "in each instance where a claimant becomes unemployed
due to the sale of corporate stock, the particular facts must be examined to
determine whether 'good cause' to precipitate unemployment by such sale
existed."
In the instant case,
claimant's unemployment stemmed from the sale of the corporate
"business" rather than from a sale of the stock in the corporate
employer. Nevertheless, claimant, as a principal stockholder, participated in
the decision of the employer to dispose of the property and, without objection,
protest or dissent, joined with the remaining principals of the corporation in
the disposition of the corporate property which provided claimant with
employment. Under these circumstances, we conclude that, for the purpose of
determining claimant's rights under the Unemployment Insurance Law, she is in
substantially the same position as though her unemployment had stemmed from the
sale of her corporate stock. Accordingly, our reasoning in Appeal Board, 90,801
applies and our decision therein is incorporated herein by reference.
Having thus concluded
that claimant voluntarily left her employment within the intent of Section
593.1 of the Law, it is necessary to determine whether such voluntary leaving
was based on good cause. There is no proof to establish that there was any
compelling need for the sale of the hotel. It was sold, solely, because in the
judgment of the principals of the corporation, it was to their economic
advantage to accept the offer made by the university which would enable them to
make a profitable sale. This is a purely personal reason which was not of such
compelling nature as to provide good cause for the termination of employment
which was a necessary sequence to the sale. Accordingly, we hold that claimant
voluntarily left her employment without god cause.
The initial
determination of the local office is sustained. The decision of the referee is
reversed. (June 19, 1963)
COMMENTS
The principle that
unemployment stemming from the sale of claimant's corporate stock for personal
and non-compelling reasons results in disqualification for voluntary leaving of
employment is reported in Release A-750-1581.
This decision extends
that principle to situations where claimant participates in a decision to sell
the corporate "business."
Index
No. 1310-14
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
10, 1963
INTERPRETATION
SERVICE - BENEFIT CLAIM
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Unemployment due to - Question of
Appeal Board Numbers 98,903 and 102,051A
INDUSTRIAL CONTROVERSY, QUESTION OF; EMPLOYER'S INABILITY TO
FULFILL EMPLOYMENT CONTRACT
A work stoppage upon the
advice of claimants' union because of the employer's failure to fulfill
employment contract obligations (health and welfare fund payments, holiday pay,
wages, etc.) is not an industrial controversy where there is no dispute
concerning the terms or conditions of employment but simply an inability on the
part of the employer to pay because of lack of funds.
A.B. No. 98,903
Appellant: The claimant appeals from the decision of
the referee filed November 19, 1962, sustaining the initial determination of
the local office suspending the accumulation of benefit rights by claimant
during a period of seven consecutive weeks effective September 20, 1962, on the
ground that she lost her employment because of an industrial controversy in the
establishment in which she was employed.
Findings of Fact: Claimant, a draper, was employed through
September 19, 1962. On September 20, 1962, the finishers and the other piece
workers reported to their union and complained that the employer had refused to
pay them holiday pay for Labor Day, 1962, to which they were entitled pursuant
to the collective bargaining agreement. On the advice of the union, the
pieceworkers and finishers stopped working on September 20, and did not return
to work until two weeks later when they were advised by their union that the
matter had been settled and that they would be paid for the holiday. No work
was available for claimant and other timeworkers, due to the fact that the
pieceworkers and finishers were not working. Accordingly, claimant was laid
off.
There was no picketing
of the employer's establishment. The employer was not prevented from hiring
other employees to replace those who had refused to work. The employer paid its
employees for the Labor Day Holiday, on their ultimate return to work. The
employer had paid the claimant and other timeworkers for the holiday but was
unable to pay the pieceworkers and the finisher's holiday pay at the time they
were entitled to be paid because she was then without funds. She testified at
the hearing before the Board that because of other troubles with the union,
business had been bad and she was without funds to pay the money although she
recognized that under the contract, she was obligated to pay the pieceworkers
and the finishers for the holiday. There was no interpretive difference between
the employer and the union regarding the workers' rights to holiday pay under
the contract. The employer had been having a running dispute with the union on
other matters relating to price schedules which were not related to her
obligation to pay holiday pay to the workers involved.
Appeal Board Opinion and
Decision: The evidence now
before the Board establishes that the work stoppage in the employer's
establishment on September 20, 1962, was occasioned by the employer's inability
to pay to the piece workers and finishers the wages due to them as holiday pay
and not due to an interpretive difference regarding the contract. The
employer's failure to make the holiday payment was not occasioned by any
industrial controversy or labor dispute but rather was due to the employer's
lack of funds. The fact that the union counselled the workers to remain away
from work until they received payment due to them did not operate to make the
matter an industrial controversy. The employer's dispute with the union
regarding price schedules had nothing to do with the work stoppage. Under the
circumstances of this case, claimant's unemployment beginning September 20,
1962 was not due to an industrial controversy and consequently, the statutory
suspension is inapplicable.
In Appeal Board, 99,626,
wherein we affirmed the referee's decision without opinion, it was stated:
The record establishes
that claimant's failure to work on and after July 12 (claimants H., I., and A.)
was due to their stoppage because of the employer's failure to pay them wages
due as holiday pay. This failure of the employer to make the holiday payment
was not because of any dispute as to its obligation to make the payment but was
simply due to lack of funds. Under such circumstances, the claimants' failure
to work is not to be construed as due to an industrial controversy.
In Appeal Board, 91,106,
we said:
Claimants' refusal to
work because of the refusal of the employer to post a cash bond does not
constitute an industrial controversy within the meaning of Section 592 of the
Unemployment Insurance Law. The employer had evidenced its financial
instability by issuing wage checks which were dishonored by the bank.
Claimants' demand for the posting of a bond was not unreasonable because there
was a likelihood that they would not be paid for their services. The employer's
failure to secure permission from the Department of Labor to pay wages by check
was a violation of the Law. The claimants' herein were further justified in refusing
to continue in this employment because of this violation.
In Appeal Board, 98,774,
wherein we affirmed, without opinion, the referee's decision it was stated:
Refusal to work because
of an employer' failure to pay back wages, even when such refusal is based upon
the union's advice and counsel, does not constitute an industrial controversy
within the purview of the Unemployment Insurance Law.
We therefore conclude
that claimant did not lose her employment because of an industrial controversy
in the establishment in which she was employed.
The initial
determination of the local office is overruled. The decision of the referee is
reversed. (June 12, 1963)
A.B. 102,051A
Appellant: This is an application by the Industrial
Commissioner, pursuant to the provisions of Section 534 of the Unemployment
Insurance Law, to reopen and reconsider the decisions of the Board filed in the
Department of Labor on April 2, 1963, affirming (1) the decision of the referee
filed December 27, 1962 (appeal Board 98,817; 98,818; 98,819), and (2) the
decision of the referee filed January 16, 1963 (Appeal Board 99,373),
overruling the initial determination of the local office suspending the
accumulation of benefit rights by claimants during a period of seven
consecutive weeks effective September 19,1962 on the ground that they lost
their employment because of an industrial controversy in the establishment in
which they were employed.
Findings of Fact: Claimants were employed by a firm engaged in
the manufacture and installation of railings and ironwork. They are members of
a union in contractual relations with the employer. The contract provides,
among other things, for the employer to make contributions to a health and
welfare fund for the benefit of the members of claimants' union. The employer
had failed, over a period of time to make such contributions and was delinquent
in the payment of substantial sums of money to the health and welfare fund.
A Federal Court adjudged
the employer to be bankrupt effective September 14, 1962. On September 18
claimants and other employees, upon instructions from their union
representative, refused to work because of the employer's failure to pay the
contributions due to the health and welfare fund and because the employer was
insolvent. There was no dispute as to any of the terms and conditions of
claimants' employment, nor were there any negotiations between the employer and
claimants or the union relative thereto.
Appeal Board Opinion and
Decision: The Industrial
Commissioner contends that because claimants' refusal to work was based upon
the advice and counsel of their union, and because there was some picketing,
the cessation of work constituted a concerted walkout and created an industrial
controversy within the meaning of the Law. We find that the substantial fringe
benefits due from the bankrupt employer under the contract with claimants'
union constitute an important part of claimants' wages. We have held that the
refusal to work because of an employer's failure to pay back wages, even when
such refusal is based upon the advice and counsel of claimants' union, does not
constitute an industrial controversy within the purview of the Unemployment
Insurance Law (Appeal Board, 98,714).
Similarly, a work
stoppage resulting from the failure of the employer to pay wages due as holiday
pay, not because of any dispute as to the obligation, but only because of the
employer's inability to pay, is not an industrial controversy (Appeal Board,
99,626).
Even were we to accept
the contentions of the Industrial Commissioner, the situation herein is not
unlike that which existed in (Appeal Board 91,106), where we held that the
refusal of claimants to work because the financially unstable employer refused
to post a cash bond to insure payment of wages, after wage checks had been
dishonored by its bank, did not constitute an industrial controversy.
Considering that there
was no dispute between the employer and claimants or their union, that there
were no negotiations between the parties relative to the terms and conditions
of claimants' employment, that the employer was insolvent and adjudged bankrupt
by a Federal Court four days earlier, and that the employer was delinquent in
the payment of substantial fringe benefits to the health and welfare fund
managed by claimants' union, we hold, under these circumstances, that there was
no industrial controversy within the meaning of the Unemployment Insurance Law.
The application of the
Industrial Commissioner to reopen and reconsider the decisions of the Board
filed in the Department of Labor on April 2, 1963 (Appeal Board 98,811; 98,819;
99,373), is granted and said decisions are hereby rescinded. The initial
determinations of the local office are overruled. The decisions of the referee
are affirmed. (June 11, 1963)
Index
1735 D-3
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July
12, 1963
INTERPRETATION
SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Violation of Agreement
Appeal Board Case Number 91,334
EMPLOYER'S FAILURE TO FULFILL PROMISE OF TRANSFER
An employer's failure to
fulfill a promise, made subsequent to hire, to change employment conditions
(transfer) is not good cause for voluntary leaving since no circumstances
developed which would have justified refusal of the employment in the first
instance.
Referee's Decision: The initial, determination of the local
office disqualifying claimant from receiving benefits effective January 12,
1962 on the ground that he voluntarily left his employment without good cause
is overruled.
Appealed by: Industrial Commissioner
Findings of Fact: Claimant was employed as a dishwasher in a
department store, for about six months to January 11, 1962. During his
employment, claimant had requested transfer to the shipping room where he could
earn a higher wage. On two occasions, claimant had been told that he would
receive the transfer if a vacancy occurred. Claimant was dissatisfied with the
conditions of his employment because he was required on occasions to work in
the downstairs floor. Early in January, a vacancy occurred in the shipping room
and another employee was given the job. Claimant then resigned after having
given a week's notice of leaving.
Appeal Board Opinion and
Decision: The employer's
failure to carry out its promise to transfer claimant to the next vacancy which
arose did not provide claimant with good cause for his summary leaving of his
employment. The conditions of claimant's employment had not changed during the
course of his employment. No other circumstances developed which would have
justified his refusal of the employment in the first instance. Admittedly,
claimant's leaving was prompted as much by his dissatisfaction with working
conditions as by his disappointment in failing to secure the transfer. It must
be held therefore, that claimant voluntarily left his employment without good
cause. (Matter of Sellers, 13 App. Div. 204, reversing Appeal Board
70,414).
The initial
determinations of the local office are sustained. The decision of the referee,
insofar as appealed from, is reversed. (July 16, 1962).
COMMENTS
The principle here
stated is applicable in those cases where a promise by the employer, after
claimant's acceptance of employment, to fulfill claimant's request for a
transfer, wage increase or other change in employment conditions is not kept.
Under these circumstances App. Div. decision, Matter of Sellers (Release
A-740-1550) is applicable since nothing developed during the course of the
employment to justify a refusal in the first instance.
However, it should be
noted that, if a hardship or compelling reason is involved in the claimant's
request for a change in the employment conditions, "good cause" may
exist as in any other voluntary leaving issue.