A-750 1600 Series

A-750-1600

Index No. 1740D-5

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

December 6, 1963

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Discrimination
Failure to Pay

Appeal Board Case Number 105,248

FAILURE TO PAY HOLIDAY PAY; DISCRIMINATION ALLEGATION

Where claimant was not included in employer’s non-obligatory decision to grant holiday pay to some of his non-union employees, a voluntary leaving of employment, contending discrimination, was without good cause.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective June 6, 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 for seven months as a trimmer and packer by a manufacturer of handbags. The employer operated a union shop, but was permitted to employ non-union workers. The collective bargaining agreement between the employer and the union provided that Memorial Day was a paid holiday for union members. The agreement made no provision for non-union workers.

The employer had in his employ 22 union workers and 11 non-union workers on May 30, 1963. Claimant was not a union member. Although the employer was not obligated to do so, he paid holiday pay to six of the 11 non-union employees, based on their length of service and their employment records.

Claimant received her pay check on June 5, 1963 and found that she had not been paid for Memorial Day. She ascertained that two other non-union workers, one of whom had been hired on the same day as claimant, had been paid for that day. She asked her employer why she had not been paid, whereas the other two non union workers were paid. He informed claimant that she was not entitled to holiday pay. Claimant thereupon left her employment.

Appeal Board Opinion and Decision: The credible evidence establishes that, as a non-union worker, claimant was not entitled to be paid for Memorial Day as a matter of right under the contract between the employer and the union. The employer’s decision to grant holiday pay to some of his non-union employees, even though he was not obliged to do so, was a matter within his discretion. We reject claimant’s contention that the employer unlawfully discriminated against her, since she was not the only non-union employee who was not paid. On all of the evidence in this case, we find that claimant left her employment without good cause.

The initial determination of the local office is sustained. The decision of the referee is reversed. (November 20, 1963)

 

A-750-1602

Index No. 760B.1

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

January 2,1964

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Training Courses

Appeal Board Case No. 105,315

AVAILABILITY; ATTENDANCE AT REHABILITATION COURSE

Claimant, registered with the special Placement Unit, attending a rehabilitation course (watch repairing; 9:00 a.m. – 4:00 p.m. – 5 days) through arrangements by the NYS Division of Rehabilitation, was available for employment when he was prepared to abandon the rehabilitation program if he obtained employment, followed want ads, and would have accepted any employment consistent with his physical limitation.

Referee’s Decision: The initial determinations of the local office holding claimant ineligible to receive benefits effective May 20, 1963, and July 12, 1963, respectively, on the ground that he was not available for employment is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, 38 years old, filed for benefits effective May 20, 1963. He had injured his back in November 1962 and was unable to return to his job as a platform man. Claimant cannot do bending, heavy lifting, stand for long periods of time and travel by subway.

The New York State Division of Rehabilitation arranged for claimant to attend a school for watchmaking and repair beginning with June 4. Except for the month of July, when the school was closed, claimant has been attending classes five days per week from 9 a.m. to 4 p.m. This course will terminate in January 1965.

Throughout the period of claimant’s certification for unemployment insurance benefits, claimant followed the want ads in the newspapers. He would have accepted any employment consistent with his physical limitation. Since October 1, claimant canvassed employers who could utilize the new skills he had acquired in the training course. Claimant would have given up his training course for a full-time job in view of the fact that he has four children to support.

Claimant registered with the Special Placement Unit of the Employment service. From the inception of his registration with this unit, special consideration was given to him to the extent that his registration was placed in the active file. Any special orders received by this unit would have been referred to the claimant. In the judgement of the representative of the unit who appeared at the hearing before the Board, claimant has always been ready, willing and able to work.

The initial determination which was issued by the insurance office was based upon the same standards which are applicable to claimants who are not physically handicapped.

Appeal Board Opinion and Decision: In view of the claimant’s physical condition, and based upon claimant’s actions, we are of the opinion that claimant was available for employment. He made reasonable and realistic efforts to obtain employment. The Special Placement Unit gave claimant special consideration in order to obtain employment for him while he was attending school. Significantly, the representative of the Special Placement Unit was not of the same opinion as to claimant's availability for employment as was the employment interviewer who handles claimants other than those who are physically handicapped. Since claimant was prepared to abandon the rehabilitation program if he could obtain employment, his attendance at the school did not render him unavailable. Under the circumstances, we conclude that claimant was available for employment during the periods in issue.

The initial determinations of the local office holding claimant ineligible to receive benefits effective May 20, 1963, and effective July 12, 1963, on the ground that he was not available for employment, are overruled. The decisions of the referees are reversed. (December 13, 1963)

 

A-750-1603

Index No. 1410C-2

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

January 10, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Eligibility, Question of

Appeal Board Case Number 107,744

VACATION PAY; SECTION 523 - $50 STATUTORY LIMITATION

Vacation pay is not considered in determining the $50 statutory limitation for partial unemployment benefits (Section 523).

Referee’s Findings of Fact: A hearing was held at which claimant and representatives of the Industrial Commissioner, the employer and the union appeared and testified.

Claimant, a laborer, by initial determination effective August 5 through August 11, 1963, was ruled ineligible because he was on a paid vacation.

Claimant did not work in the period from July 22 through August 11. For the week ending July 28, 1963, he was paid $115.60 vacation pay. For the week ending August 4, 1963, he was paid $115.60 for vacation pay. For the period beginning August 5 claimant was paid 20 hours of vacation pay or $58.80.

The parties concede that the employer notified the workers in advance of the vacation period. The commissioner’s representative contends that since Claimant received in excess of $50 vacation pay for the period August 5 through August 11 he is ineligible for benefits.

Referee’s Opinion and Decision: A similar situation where a worker was paid vacation pay for three days in a week and the amount of the vacation pay exceeded $50 was considered in Appeal Board 100,965A. There the Board refused to follow the commissioner’s argument that vacation pay exceeding $50 rendered a worker ineligible. The Board said, "Accordingly we conclude that since claimant was unemployed on four days in the week ending July 22 for which days he received no vacation allowance she is entitled to be credited with one effective day despite the receipt by her of a payment in excess of $50 which payment was made on the basis of an accrued contractual right rather than as compensation for days of employment in that week." While the provisions governing eligibility during paid vacations have been amended, I find nothing in the new provisions which would lead to a contrary conclusion. I, therefore, follow the decision of the Board as cited above. The initial determination is 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 findings of fact and the opinion of the Board. The decision of the referee is affirmed. (December 27, 1963)

COMMENTS

This principle is self-explanatory and will also apply to holiday pay.

 

A-750-1604

Index No. 1460A-7

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

January 22, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Vacation Period

Appeal Board Case Number UCFE-1196

FEDERAL EMPLOYEES; VACATION PERIOD – TERMINAL LEAVE PAYMENTS

Lump-sum "terminal leave" payments to a Federal civilian employee, even if given with reference being made to a specific period of time following separation, do not represent the designation of such time as a "paid vacation period" within the meaning of Section 591.3.

Referee’s Decision: The initial determination of the local office holding claimant, a former federal employee filing for unemployment compensation benefits under Title XV of the Social Security Act, as amended, ineligible to receive benefits effective May 28, through August 15, 1963 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: We have reviewed the evidence as adduced at the hearing before the referee and we find that such evidence amply supports the following findings of fact made by the referee:

"Claimant worked as an inspector for a Federal agency in Schenectady, for 21 years to may 27. His employment terminated when his department moved to Pennsylvania. The employing agency reported on its Form ES 931 that claimant separated because of "Retirement – Voluntary". In paragraph 3a of the form it reported, "Date of Separation 5/27/63. Terminal leave (if any): From 5/28/63 to 8/15/63".

In a supplemental report the agency reported as follows:

"Mr. O.O. was officially separated from employment at this depot on 27 May 1963 for failure to accompany his activity to Mechanicsburg, Pennsylvania. He was paid the sum of $496.05 for accumulated annual leave and holiday leave computed as follows: 461 hours (445 hours plus 16 hours holiday leave) at $3.05 per hour. This payment covers the period from 28 May 1963 to 15 August 1963 (5 hours only)."

Board’s Opinion and Decision: Since the referee has written a well-reasoned opinion, the Board adopts it as the opinion of the Board as follows:

"Section 591.3 of the Law as amended, provides that no benefits shall be paid to a claimant for any day during a paid vacation period. The term ‘vacation period’ is defined as "The time designated for vacation." A paid vacation period is further defined as a vacation period for which a claimant is given a payment or allowance by the employer "even if such payment or allowance is deemed to be remuneration for prior services rendered as an accrued contractual right and irrespective of whether the employment has or has not been terminated."

The Referee is bound by the findings of the federal agency which are deemed final conclusive. However, the question is how the findings are to be applied insofar as Section 591.3 is concerned.

Section 609.5 of the Federal Regulations to implement the Unemployment Compensation for Federal Civilian Employees Program under Title XV of the Social Security Act "Lump-sum terminal annual leave payments shall not be allocated by the Federal Agency but shall be allocated as provided in Section 610.3(b)…of this chapter."

Section 610.3(b) provides:

"Lump–sum terminal annual leave payments shall be allocated in the same manner as similar payments to employees of private employers under State Law. In those states in which a private employer has an option as to the period to which such payments shall be allocated, they shall be deemed to have been allocated to the date of separation from employment, unless failure of the employer to allocate will result in allocation to a period prior to the employee’s separation from his employment, in which even the allocation shall be made by the State agency as in the case of such failure by the employer to allocate."

The Bureau of Employment Security of the United States Department of Labor, in its Unemployment Insurance Program Letter No. 572 dated September 12, 1960, stated:

"We informed the State agencies in Unemployment Insurance Program Letter No. 558, dated April 29, 1960, that Federal agencies will continue to report on Forms ES-931 lump-sum terminal leave payments in the period subsequent to separation as they have in the past. Such reporting of lump-sum terminal leave is not an allocation since, with repeal of section 1505, Federal agencies no longer are responsible for allocation of lump-sum payments of terminal leave but such leave is to be allocated in accordance with State law.

…The question has been asked as to whether the terminal leave period reported in item 3a of Form ES-931 amounts to a designation by the United States (as an employer), of the period to which such leave is to be allocated in accordance with the provisions of State law in States which permit employer designation of the period covered by terminal leave. The answer to this question is:

For the purpose of those state agencies whose laws permit employer designation of the period covered by terminal leave payments, the United States (as an employer) considers that Federal wages represented by lump-sum terminal leave payments are allocated to the date of separation from Federal service, as shown in item 3b on Form ES-931, and not to be a period subsequent to the date of separation from employment (unless failure of the employer to allocate will result in allocation to a period prior to the employee’s separation from his employment, in which even the allocation shall be made by the State agency under its law)."

From the foregoing, it appears that the finds of the employing agency respecting claimant’s receipt of a lump-sum terminal leave payment are inapplicable to Section 591.3 of the Law. Accordingly, sine the lump-sum terminal leave payment herein has not been allocated to a period subsequent to the date of separation from employment and since therefore, there is necessarily absent a designation by the employer of a vacation period as required by Section 591.3 of the Law, claimant was not on a paid vacation period during the period under review and is not ineligible for benefits by reason thereof."

The initial determination of the local office is overruled. The decision of the referee is affirmed. (January 13, 1964)

COMMENTS

This new principle pertains only to civilian Federal employees and supersedes any prior conflicting instructions.

As indicated by the Board, lump—sum terminal leave payments reported on Form ES-931 by the United States (as an employer) are allocated to the date of separation from Federal Service.

 

A-750-1606

Index No. 1460A-8

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

January 27, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT

Appeal Board Case Numbers 105,581 and 106,728 et al

PAID VACATION, QUESTION OF; TERMINATION OF EMPLOYMENT

The employer’s allocation of vacation pay to a period following termination of employment is insufficient to establish a "paid vacation period" within the meaning of Section 591.3 when a specific time for vacation was neither agreed upon nor designated by advance announcement to the employee. (A.B. 105,581)

An oral designation on the last day of work does not satisfy the statutory requirement. (A.B. 106,728)

Appeal Board Decision 105,581

Referee’s Findings of Fact: A hearing was held at which claimant and a representative of the Industrial Commissioner appeared and testified.

By initial determination effective May 20 to May 26, 1963, inclusive, claimant, a fur blender, was ruled ineligible because of lack of total unemployment.

Claimant has worked for the employer for 15 years. He is a member of a union, which is in contractual relations with the employer. He earns $115.50 for a five-day, 35-hour week. The collective bargaining agreement provides for vacation periods at the election of the employer from June to September. On May 10, claimant was laid off indefinitely. He was paid for his services to that date and an additional amount of $115.50, which he was told, was for vacation. No time was designated by the employer for vacation either orally or in writing. The employer made entries in its books to reflect payment for vacation purposes for the week May 20 to May 26. This was unknown to claimant. He was recalled to work on May 27.

Referee’s Opinion and Decision: The facts are not in dispute. Claimant was laid off for an indefinite period on May 10 and given an additional week’s salary directly by the employer which was designated broadly as vacation. No period of time was specifically allotted for the vacation. The pertinent provisions of the Unemployment Insurance Law is as follows [Section 591.3(a)]:

"3. Vacation period or holiday. (a) No benefits shall be payable to a claimant for any day during a paid vacation period, or for a paid holiday, nor shall any such day be considered a day of total unemployment under Section five hundred twenty-two of this article.

(b) 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."

Claimant was totally unemployed within the meaning of the Law for the period in issue. The statute provides for ineligibility for a specified period designated as a vacation in advance for which payment is made directly by the employer to the employee. The element of specified period is totally lacking here. Claimant was laid off for an indefinite period on May 10.

The initial determination is 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 findings of fact and the opinion of the Board. (Compare with Appeal Board 106,728). The decision of the referee is affirmed. (December 19, 1963)

Appeal Board Decision 106,728

Referee’s Decision: The initial determinations of the local office holding claimants ineligible to receive benefits effective July 1 through July 7, 1963, on the ground that such period was a paid vacation period for which no benefits are to be paid are overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimants, knit-goods workers, are employed in the same establishment. On Friday, June 28, 1963, they were informed orally by their foreman that the plant was to be closed during the following week for machinery repairs. They were told to return to work on July 8, which each did.

Claimants are members of a union, which is in contractual relations with the employer. The collective bargaining agreement provides that an annual vacation allowance equal to one week’s pay was to become payable at the end of the contract year on the pay day immediately preceding July 15 of each year. However, no vacation period was designated in the contract, nor was there any agreement between the employer and the claimants, their union or their representatives concerning the designation of a vacation period. The employer did not designate the week here in issue as a vacation period nor did it announce to its employees in advance thereof that such week had been designated as a vacation period. In accordance with the union contract, claimants were paid the vacation allowance to which they were entitled on July 11, 1963.

Appeal Board Opinion and Decision: The Industrial Commissioner contends that the foreman’s statement of the plant shut down for machinery repairs made orally on June 28, the day immediately preceding the shut down of the plan, was sufficient advance designation and announcement to constitute the period July 1 through July 7 as a paid vacation period during which claimants were not eligible for benefits.

Section 591.3 of the Unemployment Insurance Law which was added to Chapter 794 of the Laws of 1963 and became effective April 26, 1963, reads as follows:

3. Vacation period or holiday. (a) No benefits shall be payable to a claimant for any day during a paid vacation period, or for a paid holiday, nor shall any such day be considered a day of total unemployment under section five hundred twenty-two of this article.

(b) 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.

(c) A paid vacation period or a paid holiday is a vacation period or a holiday for which a claimant is given a payment or allowance not later than thirty days thereafter, directly by his employer or through a fund, trustee, custodian or like by his employer or through a fund, trustee, custodian or like medium provided the amount thereof has been contributed solely by the employer on behalf of the claimant and the amount so contributed by the employer is paid over in full to the claimant without any deductions other than those required by law, even if such payment or allowance be deemed to be remuneration for prior services rendered as an accrued contractual right, and irrespective of whether the employment has or has not been terminated.

(d) Any agreement expressed 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.

The week here at issue does not constitute a paid vacation period within the aforesaid provision of the Law because it does not fall within the definition specifically set forth in paragraph (b) above. This period was not designated for vacation purposes either in the collective bargaining agreement or by agreement between the employer and the claimant, their union or their representatives, nor did the employer designate in writing and announce to the employees in advance that such week was to be considered a vacation agreement. On the contrary, the employer specifically indicated that claimants would be temporarily laid off during that week because operations would be suspended for the purpose of making machinery repairs.

The case cited by the Industrial Commissioner (Appeal Board 100,658), to support his contention that the oral statement by the foreman given to claimants herein on June 28 was sufficient to constitute a designation and advance announcement of a vacation period is not apposite. In that case, about two weeks before the shop shut down date, the employer gave oral notice to the shop chairlady that the shop would be closed for vacation purposes, and the employees were so advised by the chairlady and the union and employees acquiesced to such designation. In the instant case, the employer did not give any prior notice of the "vacation period." An oral statement by the employer on the last day of work does not constitute a designation in advance within the meaning of the statute, (Appeal Board 100,013).

Accordingly, we conclude that the week in issue was not a paid vacation period for which claimants were ineligible to receive benefits.

The initial determinations of the local office are overruled. The decision of the referee is affirmed. (November 25, 1963)

COMMENTS

These two decisions present important principles and supersede any prior conflicting instructions. A claimant is not rendered ineligible for benefits by receipt of vacation pay upon layoff when the employer, unilaterally, allocates the vacation pay to the period following separation (or any other period) by payroll entries, reports to the local office, or in some other manner, without advance communication thereof to the claimant.

Similarly, ineligibility will not result when the only notice to the employee of a vacation designation is an oral statement by the employer on the last day of employment.

On the other hand, the decision implies that ineligibility will result when there is an expressed agreement between the employer and the employee regarding the time for vacation. Such agreement can, of course, be oral and need not predate the last day of work. The Appeal Board also adheres to its former decision (A-750-1596; A.B. 100,658) holding that the statutory requirement is satisfied when in advance of the last day of work there is an oral designation to which the employees acquiesced, that is to say, against which no protest was made.

 

A-750-1607

Index No. 1195-1

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

January 31, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Criminal Acts

Appeal Board Case Number 108,554A

CRIMINAL ACT DISQUALIFICATION, QUESTION OF: PLEADING GUILTY TO REDUCED CHARGE

Claimant was properly disqualified for loss of employment because of a criminal act when he had signed a statement admitting the commission of an act which constitutes a felony even though he subsequently pleaded guilty to a reduced charge of a misdemeanor.

Referee’s Decision: The initial determination of the local office holding claimant eligible to receive benefits effective May 6, 1963, without disqualifying conditions and overruling the employer’s objections to payment of benefits to claimant on the ground that he lost his employment by commission of an act constituting a felony in connection therewith is affirmed.

Appealed By: Employer

Findings of Fact: Claimant worked for the objecting employer as a commissary porter for approximately five years until January 27, 1963, when he was discharged for misappropriating merchandise belonging to said employer. Although originally indicted for the felony of grand larceny, claimant pleaded guilty to a reduced charge of a misdemeanor, petit larceny.

On January 27, 1963, claimant signed a statement wherein he admitted that he had stolen merchandise belonging to the employer valued at approximately $250 with the intention of selling the merchandise and retaining the proceeds for his own use. The stolen merchandise actually cost the employer $148.87.

Claimant had subsequent employment, which terminated prior to his filing a claim for benefits effective May 6, 1963. He received nine benefit payments through July 14, 1963.

Appeal Board Opinion and Decision: The credible evidence now before the Board establishes that on January 27, 1963, claimant signed a statement admitting that he committed an act which constitutes grand larceny, which is a felony under the Penal Law of this State. Since claimant lost his employment as a result of his felonious act in connection with his employment, and the signed statement admitting such act has been produced, claimant may not be credited with any days of total unemployment within twelve months after January 27, 1963. Accordingly, claimant was ineligible for benefits throughout the period here at issue and hence he was overpaid all benefits received by him. Under the plain mandate of Section 593.4 of the Law, the conclusion is compelled that claimant lacked good faith in accepting the benefits and, consequently, the overpayment is recoverable.

The employer’s application to reopen and reconsider the decision of the Board filed November 14, 1963 (Appeal Board, 106,605), is granted and the said decision is hereby rescinded.

The initial determination of the local office is overruled. The employer’s objection is sustained and claimant may not be credited with any days of total unemployment within twelve months after January 27, 19633. The decision of the referee is reversed. (January 20, 1964)

COMMENTS

Section 593.4 of the Law on Criminal acts states:

"No days of total unemployment shall be deemed to occur during a period of 12 months after a claimant loses employment as a result of an act constituting a felony in connection with such employment, providing the claimant is duly convicted thereof or has signed a statement admitting that he has committed such an act."

The Board found that "the credible evidence now before the Board establishes that ***claimant signed a statement admitting that he committed an act which constituted grand larceny, which is a felony under the Penal Law of this State." The fact that he was eventually not convicted of a felony but only a misdemeanor was held not to have any bearing on the result in view of his signed statement admitting the act.

 

A-750-1608

Index No. 1460C-4

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

February 11, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Vacation Pay

Appeal Board Case Number UCFE 1178

FEDERAL EMPLOYEE LIQUIDATING ANNUAL OR TERMINAL LEAVE WITH PAY

If a federal employee is on terminal leave status but the federal agency finds that he is not separated from federal services until such leave is liquidated, he is not totally unemployed and, therefore, not eligible for benefits during the period of such terminal leave.

Referee’s Decision: The initial determinations of the local office holding claimants ineligible to receive benefits effective July 1 through August 30, 1963 and July 8 through August 30, 1963, respectively, on the ground that they were not totally unemployed, or in the alternative, that such periods were paid vacation periods for which no benefits are payable are overruled.

Appealed By: Industrial Commissioner

Findings of Fact: The claimants herein were employed as grain fleet workers by the United States Department of Agriculture at a "mothball fleet" stationed in the Hudson River. Their last day of active duty with the Federal agency was June 28, 1963. Thereafter, they went on terminal leave status until August 30, 1963, at which time they were formally separated from government service because of a reduction in force as reported by the Federal agency. While on terminal leave, each claimant continued to receive his salary every two weeks until the leave which each had accrued was exhausted. The last day for which claimant J.N. received pay was August 21, 1963 and in the case of claimant W.T.L., August 12, 1963.

Appeal Board Opinion and Decision: The evidence establishes that the claimants remained on the government payroll and continued to receive their wages bi-weekly through August 21 and August 12, 1963, respectively. They were not totally unemployed during such periods despite the fact that they were under no obligation to render service to the government beyond June 28, 1963 (See Matter of Blitz, 302 N.Y. 573, affirming 275 App. Div. 1015, reversing Appeal Board, 18,942). Accordingly, we hold that claimant J.N. was not totally unemployed at least through August 12, 1963. In view of the foregoing, it is unnecessary to decide whether such periods were paid vacation periods.

The initial determination of the local office holding claimant J.N., ineligible to receive benefits effective July 1 through August 30, 1963, on the ground that he was not totally unemployed, is modified to be effective July 1 through August 21, 1963 and, as so modified, is sustained.

The initial determination of the local office holding claimant W.T.L., ineligible to receive benefits effective July 8 through August 30, 1963, on the ground that he was not totally unemployed, is modified to be effective July 8 through August 12, 1963 and, as so modified, is sustained. The decisions of the referees are reversed. (January 31, 1964)

COMMENTS

This case and its rule must be distinguished from the more common situation where a federal employee receives a lump-sum so-called "terminal leave" payment but is separated from federal service prior to the period "covered" by that payment. Under such circumstances, the claimant is totally unemployed and, as stated in Release A-750-1604 a terminal leave payment does then not reflect a paid vacation period."

Similarly, the here reported decision is generally not applicable to instances where vacation pay is received upon separation from other employment. Separation from other employment, under prevailing practices, is effective immediately and, therefore, the question whether there is a paid vacation period must be determined under Section 591.3 on ""Paid Holiday and Vacation Periods.""

 

A-750-1609

Index No. 1722-6

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

February 24, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Distance

Appeal Board Case Number 109,386

VOLUNTARY LEAVING AFTER WORKING AT NEW LOCATION; DISTANCE

Claimant, transferred to a new location requiring two hours travel each way, who tried working under the new conditions for one and one-half months but found them too difficult, quit with good cause since employment under the changed conditions was not for a substantial period of time so as to be deemed accepted permanently. (Matter of Sellers, A-750-1550, not applicable)

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective September 25, 1963 on the ground that she voluntarily left her employment without good cause is sustained.

Appealed By: Claimant

Findings of Fact: Claimant was employed as a kitchen steward in the commissary of an airlines company for about two and one-half years until September 24, 1963. From the inception of her employment to August 1, 1963 she worked at New York International Airport located in Queens where claimant resides. Thereafter she was "bumped" out of her job and was transferred to Newark Airport in New Jersey. As a result of such transfer claimant was compelled to travel about two hours each way from her residence to her new place of employment. Claimant tried working under these new conditions for about one and one-half months, but found that the excessive travel was too difficult for her. Because her employer would not transfer her back to New York, she terminated her employment on September 24, 1963.

Appeal Board Opinion and Decision: Section 593.1 of the Unemployment Insurance Law provides that a voluntary separation from 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. Section 593.2 of the Law provides that a claimant has good cause to refuse employment if it is at an unreasonable distance from his residence. The evidence herein establishes that these mentioned statutory conditions have been met. Claimant did not continue working under the changed conditions for a substantial period of time so as to be deemed to have accepted permanently the change in her working conditions and to have waived whatever valid objections she might have originally had. Claimant tried working at the new location for a sufficient period to prove that it was not such as she could accept. Accordingly, we hold that claimant had good cause to leave her employment within the meaning of the Law.

The initial determination of the local office is overruled. The decision of the referee is reversed. (February 11, 1964)

 

A-750-1611

Index No. 1325-1

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

May 27, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
Termination of

COURT OF APPEALS DECISION

Matter of William S. George, et al

Appeal Board Nos. 68,848 thru 68,855

QUESTION OF INDUSTRIAL CONTROVERSY TERMINATION DATE

Industrial controversy suspension, although it originated with a nationwide labor dispute affecting the several establishments of an integrated industrial enterprise, terminates with respect to a given establishment within such enterprise when there is an agreement settling all issues of the dispute in relation to such establishment, even if the dispute has not been settled for other establishments and regardless of the interdependency of the establishments resulting in continued unemployment due to the lack of essential parts or other reasons connected with the controversy.

COURT OF APPEALS DECISION

This controversy arises out of a nationwide strike of the General Motors plants called by the United Automobile Workers on October 2, 1958. Although the nationwide strike was settled by agreement within 24 hours, the national settlement allowed the various local unions to continue striking in support of negotiations on local issues.

Claimants here are employees at five General Motors plans in New York at which settlements of the strike continued by the various local unions were reached on different dates. The settlement and ratification dates are as follows:

Plant	Date of local agreement	Date of local ratification
Chevrolet-Tonawanda *      Motor plant	October 15	October 17
Foundry	October 27	October 27
Forge	October 27	October 28
Chevrolet Buffalo	October 12	October 13
Harrison radiator - Lockport	October 5	October 19
--West Lockport	October 5	October 19
--Buffalo	October 22	October 22

* The Tonawanda settlements are charted as a single establishment for reasons to be stated later.

Full employment in each plant was not resumed, however, until some time after the various settlements. In some instances recall was almost immediate but layoffs ensued thereafter because of lack of parts from plants still on strike. In some instances, recall itself was delayed. It was not until November 3 that full employment was restored through the nation. The instant claims are for unemployment benefits from the date of the local settlement in each claimant’s plan to the date when each claimant was recalled to employment.

The controlling statute is New York Labor Law, section 592, subdivision 1:

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

It is appellants’ contention that the lifting of the seven-week suspension of benefits provided for in the last phrase of section 592, subdivision 1, takes place on the date of each local settlement and ratification. The Unemployment Insurance Appeal Board so held. The Appellate Division reversed this determination, holding that the continued unemployment after each local settlement date until actual recall was not "involuntary." The court reasoned as follows:

"The facts in the instant case are unprecedented. General Motors is a far flung organization with 124 plants, widely separated geographically throughout the United States, interdependent one upon the other, and each producing something essential to a final finished product. When some of the plants are idle, others must of necessity be idle. Claimants must have been fully aware of this when they personally left their employment and initially participated in the strike. Their unemployment during the period for which they have granted benefits was the direct and inevitable consequence of the strike in which they joined. They are not innocent victims of a situation wholly beyond their control, and their unemployment may not be said to be involuntary (Matter of Machcinski [Corsi] 277 App. Div. 634)." (2084-5)

The Appellate Division was correct insofar as it stated that the other issue is "the very narrow question of when the strike or industrial controversy terminated within the meaning of Section 592(1)", but erred, in our view, when it attributed a vicarious voluntariness to the post-settlement unemployment on the ground that the claimants ought to have foreseen the consequences of idleness in some plants of an integrated industrial enterprise when they commenced the strike. The statute in question expressly limits such considerations to single "establishments." There can be little doubt that, under our cases, delays caused by lack of parts and supplies from other idle plants is not part of the termination of an industrial controversy in an establishment that has settled its own controversy.

The denial of benefits where unemployment results from a dispute "in the establishment in which [the claimant] was employed" is strictly limited by Matter of Ferrara, 10 N.Y. 2d 1, to the geographic location of the employment regardless of what the Appellate Division correctly recognized here as a highly integrated nationwide industry (see also Matter of Machcinski, 277 App. Div. 634). In the face of the Ferrara case it cannot be said that the several plants involved in this case constitute a single establishment. The Appellate Division avoided the establishment concept and simply regarded participation in the nationwide strike to be an adequate predicate for a holding of voluntary unemployment until all plants were again in operation. While statutes in other states may be framed differently (United Steel Workers v. Board of Review, 12 Utah 2d 136, 363 P 2d 1116), in this State participation in a multi-establishment strike is not the criterion of an individual’s right to unemployment benefits. As the Ferrara case shows, non-participants within the same establishment are subject to the same suspension of benefits as those who are engaged in the industrial controversy. So, conversely, employees in an establishment in which no dispute exists, even though they were participants in the initial multi-plant controversy, are not denied benefits where their unemployment is traceable solely to a controversy in another establishment. We hold that unemployment in one establishment that is due to lack of essential supplies or parts from some other establishment idle because of an industrial controversy qualifies for benefits under section 592, subdivision 1, if the controversy in the former is terminated.

The second branch of this appeal questions the Appellate Division’s affirmance of the Unemployment Insurance Appeal Board’s determination that the motor plant, forge and foundry at Tonawanda was one establishment. The controlling decision is Matter of Ferrara, 10 N.Y. 2d 1, which held that geographic unity is the primary and ordinarily decisive factor in determining the existence of an establishment under section 592, subdivision 1. It is simply a question of applying the standard to the physical plant at Tonawanda. This seems to us to be the sort of question as to which the administrator's choice should be given great weight. Although the three divisions are represented by different local unions of the United Automobile Workers, with different collective bargaining agreements, the facilities occupy a single tract of about 150 acres and are surrounded by a single 6 foot steel fence. Each has separate personnel records and each has a separate cafeteria.

On the other hand, they are served by a single power house, water pumping station, sewage disposal, electric and compressed air facilities. The administrative structure seems to tend to separateness while physically and spatially it is more of a unit. Unless we are to further refine the Ferrara standard as a matter of law – and there would be great difficulty in generalizing further refinements – we must leave the Appeal Board’s determination undisturbed.

Lastly, respondent argues that the individual strike settlements cannot be regarded as terminating the strikes in each establishment because of paragraph 118 of the national collective bargaining agreement between General Motors and the International Auto Workers, which states:

"The Union has requested this National Agreement in place of independent agreements for each bargaining unit covered hereby. Accordingly an authorized strike in one bargaining unit under this Agreement which results in an interruption of the flow of material or services to operations in any other bargaining unit under this Agreement, will be considered an authorized strike in any such affected bargaining unit."

It is argued that this provision means that the strike settlements that were reached at each establishment were without effect in settling the strike at such establishments so long as the interruption in the flow of essential parts held up actual operation. Cases such as Ford Motor Co. v. Huffman, 345 U.S. 330, and Allis-Chalmers Mfg. Co. v. N.L.R.B., 213 F 2d 374, are cited to show how the provisions of a collective bargaining agreement may override inconsistent mandates of law. For instance, in Huffman, an agreement dealing with veterans’ seniority rights was held binding even though it derogated from the statutory rights of returning veterans as set forth in Federal law.

Assuming arguendo that the provision was intended to have the effect now argued by respondent, it cannot do so under our law. Cases dealing with a conflict between a contract and a statute covering conditions of employment are not controlling. The statute may there be rightly regarded as controlling only in the absence of a contrary agreement. Here, however, conditions of employment are not involved. We are asked to hold that the benefits otherwise due the unemployed were bargained away. In respect of social legislation designed to benefit those whom the Legislature deems in need of assistance it is asking a great deal to have us displace the legislative determination of the needy class to conform to a prior private agreement – even though voluntarily entered into by those now in need of help. Our law, defining the class entitled to benefits and the conditions under which they are due, expressly recites that benefits shall be accumulated before the expiration of seven weeks "beginning with the day after such strike, lockout or other industrial controversy was terminated"; and "terminated," under our statute, means a ratified settlement within a given establishment, regardless of what the national collective bargaining agreement considers to be an "authorized strike" in such "affected bargaining unit." The sustenance due the unemployed is not a fit subject of private waiver, whether through collective bargaining or otherwise.

To summarize, we believe that where an industrial dispute is in fact settled by agreement within the unit defined by statute as an establishment, the policy of the statute is called into play notwithstanding the national agreement’s characterization of the continued work stoppage as "an authorized strike." The stoppage is in fact due to disputed at other establishments, and labels notwithstanding, that sort of reason for unemployment is not regarded by our law as a sufficient cause for denying benefits.

The constitutional argument raised by respondent is quite without merit. Laws pre-existing the formation of a contract and limiting its effectiveness do not "impair its obligation" within the constitutional prohibition (West Const. Hotel Co. v. Parrish, 300 U.S. 379). As to the argument under the supremacy clause (U.S. Const., Art. VI, par. 2) that section 592 invalidly regulates interstate commerce, it is sufficient answer to say that the constitutionality of our unemployment insurance law has been upheld (Chamberlin, Inc. v. Andrews, 159 Misc. 124, affd. 271 N.Y. 1, affd. 299 U.S. 515; Standard Dredging Co. v. Murphy, 319 U.S. 306) and the power to provide for payment of benefits and taxation of employers must carry with it the power to regulate, according to our own lights, eligibility for payments.

The order of the Appellate Division should be modified by reversing so much thereof as reversed the determination of the Unemployment Insurance Appeal Board and the determination of the Board reinstated.

Order of the Appellate Division modified by reversing so much thereof as reversed the determination of the Unemployment Insurance Appeal Board and the determination of that Board reinstated, with costs in this Court and in the Appellate Division, and as so modified, order affirmed. Opinion by Burke, J. All concur except Van Voorhis, J., who dissents and votes to affirm and Bergan, J., taking no part. (May 7, 1964)

COMMENTS

This decision stands for the general principle that a strike suspension terminates when all issues are settled by agreement even if recall of the claimant is delayed and the reasons for such delay are attributable to the industrial controversy. This reinstates interpretations, which prevailed before 1963.

 

A-750-1613

Index No. 1460A-3

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

June 22, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Vacation Pay

Appeal Board Case Number 112,250

VACATION PERIOD; QUESTION OF ANNOUNCEMENT IN ADVANCE

Where the employer, prior to a vacation shutdown which was posted at the plant while the claimant was on temporary lay-off, sent the claimant his vacation check whose stub stated the period of the vacation, the statutory requirement of designation in writing and announcement in advance is met.

Referee’s Decision: The initial determinations of the local office holding claimant, an assembler, ineligible to receive benefits effective August 5 through August 14, 1963, on the ground that such period was a paid vacation period for which no benefits are paid and charging him with an overpayment of $87.50 in benefits which is recoverable are sustained.

Appealed By: Claimant

Findings of Fact: Claimant, an assembler, was laid off due to lack of work effective April 26, 1963 and was not recalled to work, at least through September 15, 1963. In accordance with the provisions of the collective bargaining agreement between claimant’s union and his employer, claimant’s seniority was retained through the layoff period.

The collective bargaining agreement provided for the payment of vacation allowances to the employees in amounts measured by seniority but it did not specify the vacation period. Based on claimant’s seniority he became entitled to a gross payment of $153.60 which represented 60 hours of paid vacation time. Normally claimant worked a five-day, 40-hour week.

Up to the time that claimant was laid off in April the employer had not designated a vacation period. On May 3, 1963, the employer designated the two-week period ending on August 16, 1963 as the vacation period and it posted a notice in the establishment advising the employees of such designation and of the fact that the plant would be closed for vacation purposes during that period. Because claimant was not at work at any time between May 3 when the notice was first posted and the commencement of the designated vacation period, he had no opportunity to see the posted notice. However, on July 1, 1963, claimant received from the employer a check for $153.60 together with a stub attached thereto on which there was endorsed the following:

"This check represents 60 hours ( days) of vacation pay for the period of shutdown for vacation – August 6, 1963 through August 16, 1963."

Appeal Board Opinion and Decision: It is contended on behalf of claimant that the period here at issue was not, for the claimant, a paid vacation period for which claimant was ineligible to receive benefits for the reason that the period was not designated and announced to claimant in advance by the employer. In support of such contention it is argued that the designation by the employer and the notice which was posted was ineffectual as to the claimant because the posting and display of the notice occurred while claimant was in a layoff status. On the facts here adduced the contention so advanced lacks validity.

In Appeal Board #107,841, we dealt with a similar situation involving the effect of the posting of a notice during the time when employees were away from the plant because of a layoff. We there pointed out that Section 591 of the Law requires as a condition precedent to the ineligibility of the claimant, that the employer not only designate the vacation period but additionally announce the fact of such designation to the employees. Consequently, we held that no announcement of the designation had been made to employees who were in layoff status and who were not otherwise notified by the employer that it had made such designation. In the instant case, however, the employer had announced to the claimant in advance of the designated vacation period, that it had so designated the period, which is here in issue. The written statement, which accompanied the vacation payment which claimant received on or about July 1, 1963, constituted a sufficient announcement to the claimant of the fact of such designation.

The fact that the claimant was temporarily laid off prior to the commencement of the vacation period and that such layoff continued until a date subsequent to the close of the vacation period does not alter the fact that he was ineligible for benefits for the period for which he received a vacation payment so long as the employer designated the vacation period in writing and duly announced same. The statute as amended by L 1963, C 794, specifically provides for a period of ineligibility in the cases there provided for notwithstanding that the employment may have been previously terminated. Accordingly, we conclude that the claimant was ineligible to receive benefits for the period for which he was paid since such period was a vacation period as contemplated by the provisions of Section 591.

Although the initial determinations which were issued herein fix the period of ineligibility as the period beginning August 5, 1963 and ending August 14, 1963 and correctly establishes an overpayment of $87.50 representing the voiding of four effective days in the week ending August 11, 1963 and three effective days in the week ending August 1, 1963, the notice of overpayment purports to indicate that four effective days in the week ending August 19, 1963 were voided. Claimant was eligible for partial benefits for one effective day in the week ending August 18, 1963 since the vacation period for which he was paid covered only three calendar days in the week ending August 18, 1963. (See File A-710-10, Field Operations Bureau – Interpretation and Review Section Manual.)

The overpayment of benefits in the sum of $87.50 received by claimant is recoverable since it is specifically mandated by the provisions of Section 597.4 of the Law that there may be no waiver of the recovery of an overpayment where such overpayment results from the retroactive payment of remuneration.

The initial determinations as modified in accordance with the above are sustained. The decision of the referee as herein modified is affirmed. (June 2, 1964)

 

A-750-1617

Index No. 750C.1

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

August 13, 1964

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Health

Appeal Board Case No. 113,369

and

APPELLATE DIVISION DECISION

Matter of John L. Roehsler

CAPABILITY, QUESTION OF; SOCIAL SECURITY DISABILITY BENEFITS

The filing of an application for disability benefits under the Social Security Act or the receipt of such benefits does not constitute conclusive proof of incapability but may be treated as evidence in support of a factual determination of incapability.

Appeal Board Decision

The Industrial Commissioner appeals from the decision of the referee filed April 30,1964, insofar as it overrules the initial determinations of the Out-of-State Resident Office (1) holding claimant ineligible to receive benefits effective October 14, 1963, on the ground that he was not available for and no capable of employment and charging him with an overpayment of $387.50 in benefits ruled to be not recoverable and (2) holding the claimant ineligible to receive benefits effective December 23, 1963, on the ground that he was not available for employment, as modified by the referee to be effective January 3, 1964 only and March 10 through March 21, 1964.

Findings of Fact: Claimant had worked as a truck driver for about 35 years. He was compelled to abandon work in that occupation in about September 1961 because he suffered a broken back and leg injuries. After he made some recovery from the injuries he suffered, he worked intermittently as a taxi driver between February 1962 and March 1963. On or about March 15, 1963, claimant again became disabled due to a coronary occlusion which he suffered. He recovered from his disability sufficiently to enable him to engage in sedentary or clerical work on and after October 12, 1963. He actually worked as a telephone solicitor for one day but abandoned that work because excessive travel time and considerable walking was involved to travel to that place of employment. Since April 13, 1964, claimant has worked on a full-time basis as an assistant manager of a restaurant.

Pursuant to the advice of his physician that it would be advisable for him to reside in a warmer climate, claimant went to Puerto Rico on December 22, 1963. His wife remained in New York City and claimant continued to maintain his apartment there. Although he made no inquiry in advance with respect to opportunities for work in Puerto Rico, he maintained that he went to that area for the purpose of becoming employed there. He established his resident in Puerto Rico at a point which would have required travel for at least an hour to reach any possible labor market. Moreover, opportunities for the procurement of work by claimant in Puerto Rico were virtually non-existent because of claimant’s inability to speak Spanish fluently. He submitted statements at the Puerto Rico local office purporting to indicate a search for work by having allegedly visited one establishment on each day. He indicated that he followed that pattern of seeking work because he was advised that in Puerto Rico an applicant for benefits was required to establish contact with one prospective employer a day. Claimant was unable to qualify for a taxi driver’s license in Puerto Rico. Admittedly, claimant was ill with a virus infection on January 3, and from March 10 to March 21, 1964, and he was unable to work on those days.

Throughout the period here at issue, claimant received disability benefits under the provision of the Federal Social Security Act and he also received disability pension payments from two local unions. He was paid unemployment insurance benefits aggregating $387.50 for the period between October 21 and December 15, 1963 prior to the issuance of the initial determinations here under review, and it was held that although such payments constitute an overpayment, they are not recoverable.

Opinion: It is contended on behalf of the Industrial Commissioner that since claimant received an accepted disability benefits under the Federal social security program on the basis of his certification that he was unable to engage in any substantial gainful employment, he is necessarily ineligible for unemployment insurance benefits, on the ground that he is incapable of employment within the provisions of the Unemployment Insurance Law. The theory so advanced is without validity. (See Matter of Roehsler, 19 App. Div. 2d, 927, reversing Appeal Board, 98,779). The application for disability benefits under the Federal Social Security Act and the receipt of benefits thereunder are evidentiary matters, but do not constitute conclusive proof of incapability under the provisions of the Unemployment Insurance Law. This is especially true, since the Social Security Act encourages the resumption of work by recipients of disability benefits, in that the Act specifically requires a recipient for such benefits to submit to vocational rehabilitation. Moreover, the Act provides for the continuance in the payment of disability benefits notwithstanding that the recipient thereof engages in employment for a period of time while receiving such benefits (Section 222 of the Federal Social Security Act, as amended).

In the instant case, the proof adduced establishes that claimant was not totally prevented, by reason of his disability, from engaging in some employment. On the contrary, it has been established that claimant is physically capable of engaging in various types of sedentary work. The procurement of work by claimant confirms that fact. Accordingly, we conclude that except for January 3, and from March 10 through March21, 1964, when the specific illness for which claimant suffered prevented him from working, he was capable of employment.

Until claimant left New York City to go to Puerto Rico, he established his availability for work by presenting himself for employment wherever he believed work, which he could perform, was available. Similarly, after claimant returned to New York City from Puerto Rico, he again established his availability for work. However, while claimant was in Puerto Rico, he effectively withdrew from the labor market. While claimant may have acted in the interest of his health in temporarily moving to Puerto Rico, his failure to make advance inquiries with respect to opportunities for work in that area indicate the lack of a real desire to become there employed. This is especially true in view of claimant’s inability to speak fluently the language of the Island. Claimant’s alleged search for work while in Puerto Rico fails to demonstrate the exercise of real diligence. It appears that he attempted to make a formal compliance with what he believed was required of an applicant for benefits in Puerto Rico rather than to actually procure work. If, in truth, claimant was desirous of becoming employed, he would not have remained in Puerto Rico for almost four months after having learned soon after his arrival in that area that there were virtually no opportunities for his employment.

In view of the foregoing, we conclude that claimant was unavailable for employment from December 22, 1963 through April 3, 1964, and that except for such periods, he was available for an capable of employment. Since claimant was available for and capable of employment from October 21, 1963 through December 15, 1963, the benefits of $387.50 which he received for that period, do not constitute an overpayment.

Decision: The initial determinations of the Out-of-State Resident Office holding claimant ineligible for benefits on the ground that he was not available for an not capable of employment effective October 14, 1963 and charging him with an overpayment of $387.50 in benefits ruled to be not recoverable, is overruled.

The initial determination of the local office holding claimant ineligible to receive benefits effective December 23, 1963, on the ground that he was not available for employment is modified to the extent that it is held that claimant was unavailable for employment effective December 23, 1963 through April 3, 1964 and as so modified, the said initial determination is sustained. The decision of the referee is modified accordingly. (August 3, 1964)

COURT DECISION

It seems clear that claimant was uncertain whether his respiratory condition, which greatly restricted his physical activities but not, necessarily, some self-employment in work upon promotional ideas and programs, was of such a nature as to disqualify him from unemployment insurance benefits (Labor Law, §527, subd. 1, par. [a]; §591, subd. 2) and whether, if it was, it was so serious as to entitle him to disability benefits from the Federal Social Security Administration (see U.S. Code, tit. 42, §423). In this quandary, claimant made application to both agencies and it is undisputed that he did so without concealment or intent to defraud. Indeed, claimant requested the Social Security Administration to make available to the Industrial Commissioner the medical data compiled in his case, but this the Administration refused to do.

In this case, claimant’s application to the Social Security Administration might properly have been treated as evidence supportive of a factual determination of disability and consequent disqualification; but we are unable to determine whether the board gave the application that effect or whether the decision is to be construed as embodying the legally erroneous holding that the mere filing of the application established disability and consequent disqualification from unemployment insurance benefits as a matter of law (cf. Matter of San Filippo v. San Filippo, 17 A.D. 2d 1019, mot. For lv. to app. den. 12 NY 2d 645; Neel v. Ribicoff, 204 F. Supp. 914; Johnson v. Flemming, 188 F. supp. 477; Thompson v. Flemming, 188 F. Supp. 123).

Remittal being necessary in any event, claimant should have a further opportunity to present medical evidence; particularly so because, in the course of a colloquy on that subject, he was not informed that the legal burden to do so was upon him.

COMMENTS

This decision is self-explanatory. Release A-750-1579 is now obsolete and should be so marked).

 

A-750-1619

Index No. 1460B-3

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

September 10, 1062

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without

Appeal Board Case Number 115,194A

INCREASED HOURLY RATE INSTEAD OF HOLIDAY PAY

Employees who merely receive a specified sum above their normal hourly rate of pay for each hour of actual work during a holiday week are not paid for the holiday and, therefore, such day is not a "paid holiday" within the meaning of Section 591.3 of the Law.

Appellant: The Industrial Commissioner applies, pursuant to Section 534, of the Law, to reopen and reconsider the decision of the Board filed June 16, 1964 (Appeal Board 112,670; 112,671), affirming the decision of the referee filed April 1, 1964, overruling the initial determinations of the local office holding claimant, S.M.D. ineligible to receive benefits effective November 2, 1963, only, and claimant G.J.W. ineligible to receive benefits effective December 25, 1963, and January 1, 1964, only, on the ground that such days were paid holidays for which no benefits are to paid and, charging claimant S.M.D. with an overpayment of $11 in benefits ruled to be recoverable and charging claimant G.J.W. with an overpayment of $13 in benefits ruled to be recoverable.

Findings of Fact: The following findings of fact made by the referee are not disputed and are hereby adopted as the findings of fact of the Board:

By initial determination effective November 28, 1963, only, the benefits of claimant S.M.D. were suspended because the period constituted a paid holiday. She was charged with an overpayment of $11.

By initial determination effective December 25, 1963 and January 1, 1964, the benefits of claimant G.J.W. were suspended because she also was on paid holidays. She was charged with an overpayment of $13.

Both claimants were employed as regular part-time workers for a large grocery chain store.

Claimant S.M.D. worked November 27, 29 and 30, a total of 16 hours. Claimant G.J.W. worked December 24 and 26, a total of 12 hours, and the following week she worked January 2 and January 4 again for a total of 12 hours.

Each of the claimant’s was paid her regular hourly rate of pay plus 40 cents per hour worked. The 40 cent premium was added to the hourly rate by virtue of the provisions of a bargaining agreement which provided that those part-time workers who were called upon to work during certain recognized holiday weeks would be paid an additional 40 cents per hour. Thus, the bonus payments became part of the wages paid for the weeks containing the holidays.

Claimant, S.M.D. claimed benefits for November 28, 1963, and received $11 for such day. Claimant G.J.W. claimed benefits for December 25, 1963, and January 1, 1964, and received $13 in total benefits for those days. Each called the attention of the clerks with whom they certified to the bonus pay arrangement.

To the foregoing, we add the following findings of fact. In the collective bargaining agreement entered into between claimants’ union and their employer, it was stipulated in Article 17 thereof as follows:

1. The following holidays will be recognized:

New Year’s Day

Independence Day

Thanksgiving Day

Memorial Day

Labor Day

Christmas Day

During a week in which a recognized holiday occurs or is observed, full time employees shall be scheduled to work forty (40) hours and, in addition, shall be paid eight hours straight time pay for the holiday, provided the employee works the scheduled day before and the scheduled day following the holiday.

2. A full time employee who works part of the holiday week and is absent due to proven illness or injury will receive the holiday pay.

* * *

4. Part-time employees who work during a holiday week will be paid an additional forty (40) cents per hour for each hour worked during the holiday week.

Opinion: Under the provisions quoted above, it is clear that employees who worked full-time were entitled to a day’s pay for each of the holidays enumerated. Since such payments were allocable to the holidays mentioned, the employees who received such holiday pay were not totally unemployed on the enumerated holidays (Section 591.3 of the Law).

However, the claimants, herein were employed as regular part-time workers. Under the provisions of the collective bargaining agreement claimants were not entitled to receive any holiday pay as such. Instead they were paid 40 cents in addition to their regular hourly rate for each hour they actually worked during a week in which a holiday occurred. Unlike the full-time employees who received a full days pay for holidays in addition to their regular week’s pay, the claimants herein received no pay for the holidays, but only a higher hourly rate of pay for the time they actually worked. Under such circumstances it cannot be said that the additional 40 cents per hour for time actually worked have any relationship to holiday pay. Therefore, we conclude that the claimants were not paid for the holidays and were totally unemployed on the holidays in issue, within the meaning of Section 591.3 of the Law and were not overpaid in benefits.

Decision: The industrial Commissioner’s application to reopen and reconsider the Board’s decision filed June 16, 1964 (Appeal Board, 112,670; 112,671), is granted and said decision is hereby rescinded.

The initial determination of the local office, in each case, are overruled. The decision of the referee is affirmed. (August 27, 1964)

 

A-750-1620

Index No. 915B-4

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

September 11, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Benefit Rate Deductions – Pension

Appeal Board Case Number 113,865

BENEFIT RATE REDUCTION – PENSION

Where claimant in accordance with an elected option withdraws all of his contributions and accrued interest from an employer’s pension plan and thus receives a pension 100% financed by the employer, the benefit rate is reduced by the total prorated weekly pension amount (Section 600 of Law).

Referee’s Decision: The initial determination of the local office reducing claimant’s benefit rights to zero under Section 600 of the Unemployment Insurance Law on the ground that claimant received retirement payments under a plan to which the employer was the sole contributor is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, an administrative assistant, worked 36 years for the employer until February 28,1964. Her employment came to an end because she was compelled to retire at age 65, in accordance with the employer’s retirement policy.

Beginning in 1954, the employer instituted a retirement plan under which claimant was required to contribute a percentage of her salary. Claimant contributed to the plan. The employer likewise contributed for claimant’s benefit. Under the retirement plan claimant’s pension was determined by a formula which took into consideration a percentage of her salary and the number of years she was employed. Claimant was entitled to elect one of several options at the time of her retirement. She elected the option permitting her to withdraw all of her contributions to the plan, together with credited interest thereon in a lump sum and to receive a pension based only on the employer’s contribution to the plan.

At her retirement claimant withdrew her contribution and interest totaling $4,006.85, and the employer purchased an annuity sufficient to provide the amount of pension claimant was entitled to receive under the option she elected under the plan. Claimant’s monthly pension amounts to $297.33. Such annuity was purchased with the funds which the employer alone had contributed to the plan together with additional funds contributed solely by the employer at the time of the retirement to produce the required pension.

Appeal Board Opinion and Decision: The record establishes that after claimant withdrew all of her contributions and credited interest in accordance with her election under the retirement plan, the sole source of the money used to purchase the annuity to provide a pension for the claimant was the contribution made by her employer. Since claimant was retired from her employment and due to such retirement is receiving a pension wholly financed by her employer, pursuant to an established plan, claimant’s benefit rate must be reduced by the entire amount of her monthly pension of $297.33 prorated weekly (Section 600.3 of the Law). Having withdrawn all of the contributions which the claimant had made prior to her retirement and having relied upon the funds contributed entirely by the employer to provide the pension which she receives, claimant cannot support her claim that the pension she receives is based at least in part, on her contributions to the plan under which the pension is paid.

The initial determination of the local office is sustained. The decision of the referee is reversed. (September 2, 1964)

 

A-750-1622

Index No. 1315-11

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

October 8, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONROVERSY
In the Establishment

APPELLATE DIVISION DECISION

Matter of Lessner, 36 AD 2d 1

Appeal Board Case Number 115,384

OPERATING OFFICE FOR VESSELS ON PIERS WHERE LONGSHOREMEN WORK

Members of the crew of a vessel and longshoremen engaged in the loading or unloading of the vessel are employed in the same "establishment" (Section 592.1 U.I. Law) if both are employees of the same employer and if the operating office for the vessel is maintained at a terminal located on piers where the longshoremen are so engaged.

Referee’s Findings of Fact: Combined hearings were held at which many of the claimants, officials and representatives of the unions of which some claimants were members, the attorneys for several unions to which many of the claimants belonged, representatives and witnesses for many of the employers, attorneys for many of the employers and for an association of employers and a representative of the Industrial Commissioner appeared. Extensive testimony was taken. Briefs submitted on behalf of many of the claimants and employers were also considered.

A stipulation was entered into that the final decision on the test cases, involving the claimants herein, be binding as to other employees of the U.-Lines, similarly situated with respect to the sole issue of whether those claimants should be suspended because of loss of employment because of a strike, lockout or other industrial controversy in the establishment in which they were employed, subject to the right of individual appeal to any claimant from an adverse decision. Similar stipulation was entered into with respect to G. Line.

All of the claimants had been ruled eligible for benefits when they filed their respective claims. Their respective employers protested such determinations, and claimed that each claimant was subject to suspension of benefit rights for a period of seven consecutive weeks, effective December 24, 1962, for loss of employment because of a strike, lockout or other industrial controversy in the establishment in which he was employed.

On October 1, 1962, longshoremen, in the Port of New York (as well as the entire East Coast and Gulf Coast) went out on strike against members of The New York Shipping Association (hereinafter referred to as NYSA), an association of ship operators, stevedores and other employers of waterfront labor. The strike was halted by a Taft-Hartley injunction, which expired December 23. The strike was immediately resumed. All non-military terminal and stevedoring operations came to a standstill. All terminals in the port were picketed. Ship movements were severely curtailed or were halted all together. During the strike, the Port of New York was lifeless. No work was performed and no longshore workers were hired (except for some strategic cargoes for the military). Wide publicity was given to the resumption of the strike and the resulting shutdown of the Port of New York with respect to all waterfront activities. After the strike was settled on January 26, 1963, the longshoremen returned to work and the port resumed its normal operations. Shipping was also resumed.

Most of the claimants herein were employed by ship operators as licensed or unlicensed personnel in the operation of vessels used for their maritime operations on the high seas. These included able-bodied seamen, cooks and assistant cooks, engineers and assistant engineers, engine storekeepers, firemen-water tenders, mates and assistant mates, messmen, musicians, officers, oilers, pantrymen, pursers, radio operators and officers, stewards and waitresses. These will be referred to as Group 1.

Some of the claimants were employed by such companies to perform services aboard their vessels while in port. These included relief mates and engineers and ship painters. These will be referred to as Group 2.

Some of the claimants were employed solely on shore as office employees and as port watchmen. These will be referred to as Group 3.

The strike of the longshoremen was supported by the National Maritime Union and other unions of which seamen and officers were members. As ships reached the Port of New York (and in one case, Baltimore), they were laid up and their crews filed for benefits. They did not actively picket, but they did respect the longshoremen’s picket lines at the terminals.

The terminals, which the ship lines operated, consisted of one or more piers. Such facilities included areas to receive cargo and freight to await arrival of vessels for shipment thereon and for inspection of cargo discharged at the terminals until picked up and further movement in transit. The operating offices of the ship lines are maintained at the terminals. When a crew is assembled or replacements are needed, they are sent to the ship lines’ personnel offices for processing and screening and for medical examination and for preparation of and the signing of shipping articles. The personnel, medical and payroll records are prepared and maintained in such offices at the terminals. At the end of the voyages, the seamen are usually paid off at the personnel offices and shipping articles are signed off. Grievance machinery is handled and processed at the same offices.

The terminals are used as the mail address of the vessels. Cargo is consigned to the terminals. Access to and egress from the ships for passengers, for seamen, for members of the public, for cargo and for truckmen is only through the terminals to which the ships are made fast at the piers.

Physical connection between the vessels and the terminals is made by hawsers or lines by telephone connections made to passenger vessels through a "jack," by waterlines through which City water is supplied for use on the vessel and by gangways or side ports for ramps or stairways connecting the vessel with the terminal. The piers are the starting and terminal points for each voyage of the vessels.

By December 18, 1962, U – Lines decided to suspend operations because of the impending resumption of the longshoremen’s strike when the Taft-Hartley injunction period would expire. When the vessel S.S.A. arrived in port on December 18 at the termination of a scheduled voyage, the next voyage, which was scheduled to start December 21, was cancelled. The company did not want to have the vessel return from the scheduled five-day cruise if a strike would be in effect at the home port at that time. If it had not been for the longshoremen’s strike, the vessel would have been continued in operation. It was laid up at Newport News and put back in service in February 1963, after the strike was settled.

Claimant S. was employed aboard this vessel was a musician. B. was employed as a purser. L. was employed as a bedroom steward. Sa. was employed as a third cook.

Other vessels of this line were laid up on arrival at port where the crews were laid off.

Claimant P., 70 years of age, had been employed by U – Lines as a ship’s painter for about 18 years. He was a member of an Industrial Union of Marine and Ship Builders’ Workers. He is not a seaman. His duties consisted of painting interiors of ships of his employer.

He was hired on shore (at the terminal). He used paints and supplies, which were stored on the pier. He had a locker on the pier and washed up at the wash basin on the pier. He was paid on the pier. He went from the pier onto or into the ships, which were made fast to the pier. He and co-workers did not participate in the longshoremen’s strike, but respected the picket lines.

Claimants H. and R. were employed as relief night mate and relief night engineer, respectively, aboard two vessels of the U – Lines from December 18 to December 22, 1962. When their respective employment’s ended, each returned to his union for further assignment. At the time the strike was resumed, each of the vessels on which these claimants had last been employed was under way on a foreign voyage.

During the hearing, U – Lines withdrew its objection to the payment of benefits to these two claimants.

Three claimants, Bo., D. and Re., were employed as office employees by TMV. They were members of an office employees international union. They were assigned to an office on Pier 2. This office was occupied by 43 employees of TMV and the port captain of a parent company, CAVN. Both companies were formed under the laws of the Republic of Venezuela. CAVN operated vessels between Venezuela and the United States. TMV was its agent in the Port of New York to solicit and obtain cargo and handle all necessary paperwork. TMV does not operate any vessels and does not require any stevedoring operations. However, CAVN has contracts with stevedoring companies as a member of NYSA and was one of the companies struck by the longshoremen. Employees of TMV did not participate in the strike, but under orders from their union respected the picket lines.

After the strike, work continued to be available for the white-collar workers of TMV, in its accounting, claim and traffic departments. TMV maintained another office in an office building in New York City where employees continued to work during the strike. That office was not picketed.

Claimant M. was employed by A. Corporation as a port watchman for many years. He was assigned to guard a special cargo crib on Pier 14, used by B. Line. The stevedoring operations at the pier were conducted for the B. Line by T. Corporation, which paid the longshoremen and reported such wage data to NYSA.

T. Corporation was one of the companies struck by the Longshoremen. However, with reduction of shipping and cargo movements due to the strike, the operations of A. Corporation were affected and its complement of watchmen was reduced from 17 to 9. The special cargo crib was closed entirely during the strike. When the strike was settled M. and co-workers returned to work.

T. Corporation and A. Corporation have interlocking directorates and common officers. One common office is used in an office building and common offices are used at Piers 14 and 15. There is one set of supervisors and one collective bargaining agreement covering one set of office employees. The pier superintendent (of T. Corporation) and the head security office (of A. Corporation) are one and the same person. There is one common paymaster, one switchboard and one common telephone.

G. Line, one of the protesting ship lines, controls all of its operations and directly employs longshoremen to perform stevedoring operations. U. – Lines directly employs many longshoremen and also contracts for such work and other maintenance and service work with stevedoring companies and other independent contractors. The longshoremen perform services in various areas of the piers and terminals and also work in and on the ships, which are at the piers.

Referee’s Opinion: The initial determinations of eligibility as to the various claimants herein were based on the conclusion that there was no industrial controversy in the establishment in which the respective claimants were employed and that the seamen were employed in separate establishments from the longshoremen and consequently were not subject to the industrial controversy suspension. In the case of some of the other claimants who were not seamen, it was held that there was no industrial controversy to which their respective employers were parties. The vessels on which the seamen and the musicians and the ships’ painters worked were deemed separate establishments from the piers or terminals, which were picketed and were the location of the controversy. The office workers and port watchmen were deemed to be on the payroll of entities, which were not parties to the controversy.

I consider that it has been effectively demonstrated that the ships were not separate establishments from the struck terminal facilities where the employers maintained their operating offices. The facts are practically identical with those in Appeal Board case 99,726. In that case which involved one of the protesting employers, G. Line, it was held that longshoremen were subject to suspension of benefits due to an industrial controversy, since they worked in the same establishment where an industrial controversy was in effect. That establishment was held to be a pier or terminal, though the persons who were on strike were seamen and not longshoremen. Since it was there held that there was a single establishment for both groups of employees, the same result must be adopted here.

In further support of the single establishment contention, reliance is placed on Appeal Board, 102,938. There it was held that the establishment of striking flight engineers as well as pilots and stewardesses were the terminals to which they had to report to board the airplanes to undertake flights and not the airplanes. In that case, office personnel employed in the terminal were held subject to suspension of benefits due to an industrial controversy. To the same effect is Appeal Board 75,544, which held the establishment of newspaper delivery truck drivers to be the plant where they were employed and not the trucks on which they worked.

It is, accordingly, held that the seamen and those comprising Group 1 each became subject to suspension from the accumulation of benefits because of loss of employment due to an industrial controversy in the establishment in which they were employed. It is immaterial that they did not directly participate in the strike of the longshoremen and had no interest in its outcome.

The same conclusion is reached with respect to the claimants who fall In-Group 2. Clearly, while those persons performed their services, there was physical connection of the vessels to the piers and terminals. The arguments in support of singleness of establishment are much stronger with respect to this group than with Group 1 who did perform the major part of their services while their vessels were free from physical attachment to the piers or terminals.

As to Group 3, it is urged that there was such a singleness of operation and control and oneness of management and policy-making existing between the two directly affiliated companies, T. Corporation, which was admittedly involved in the controversy and A. Corporation, that both "Units" involved are to be treated singularly as one employer. Reliance is placed on Matter of Technician Cardiograph Corporation, 285 App. Div. 193, and affirming Appeal Board 41,428. I consider that there is merit to the employers’ contention and hold that the employees of such employers as well as the other employers similarly situated, namely, TMV, must be deemed subject to the industrial controversy suspension.

Referee’s Decision: The objections of the various employers are sustained with respect to all of the claimants herein except H. and R. The initial determination of eligibility as to all the claimants herein, except only H. and R., are modified to provide for suspension of accumulation of benefit rights due to loss of employment because of an industrial controversy in the establishment in which said claimants were employed and, as so modified, are sustained.

Appealed By: Claimants

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 findings of fact and the opinion of the Board. The decision of the referee is affirmed. (September 25, 1964)

 

A-750-1624

Index No. 1285-5

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

November 4, 1964

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Union Relations

Appeal Board Case Number 114,080

REFUSAL; TRANSFER TO ANOTHER LOCAL OF SAME UNION

A claimant, member of a union, does not have good cause to refuse employment because it requires transfer to another local of the same union since such transfer would not have interfered with claimant’s membership in a labor organization within the meaning of Section 593.2a of the Law.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective February 19, 1964, on the ground that without good cause she refused employment which she is reasonably fitted by training and experience is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a bakery salesperson, was offered a referral to employment on February 19, 1964. She refused the referral because she would have been required to join a different local of the union of which she was a member. Claimant has been a member of her local for about six years but could have transferred to the sister local without loss of any rights except a possible suspension of some membership benefits such as seniority and medical care privileges. The wages and hours of the job offer were not substantially below the prevailing wages in claimant’s occupation.

Appeal Board Opinion and Decision: Claimant refused the employment because she was required to transfer to a sister local of her union. A transfer of union membership between locals of the same union does not come within Section 593.2(a) of the Law justifying the refusal of employment since the requirement of such transfer would not have been an interference with claimant’s membership in a labor organization (Appeal Board, 42,766; 73,661; 112,239). Nor does it appear that claimant would have suffered any undue financial burden on account of the transfer. Her refusal of the employment was without good cause.

The initial determination of the local office is sustained. The decision of the referee is reversed. (October 22, 1964)

 

A-750-1625

Index No. 915A-1

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

January 7, 1965

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Pension – Benefit Rate Deduction

Appeal Board Case Number 111,760

PENSIONS – BENEFIT RATE DEDUCTION; PROFIT SHARING PLAN

Payments received by a claimant upon retirement under a profit-sharing retiremnet plan constitute a "pension or retirement payment" as contemplated by the provisions of Section 600 of the Law.

Referee’s Decision: The revised initial determinations of the local office holding claimants eligible to receive benefits at a benefit rate of $50 each is modified by reducing the benefit rate by the amount received as a pension or retirement payment under a plan financed by the employer.

Appealed By: Industrial Commissioner and Claimants

Findings of Fact: Each of the claimants was employed by the employer herein, a publisher. Claimant J.F., a linotype machinist, was so employed for 28 years. Claimant A.V.G., a mailer, was so employed for 13 years. The employment of each claimant was terminated on June 27, 1963, at which time claimant J.F. was 65 years of age and claimant A.V.G., 64 years of age.

Each of the claimants was a beneficiary of a plan promulgated by the employer in 1949 and continued in effect through the present time. By virtue of the provisions of such plan, claimant J.F. received a quarterly payment of $600 from the date of termination of his employment and claimant A.V.G. received a quarterly payment of $450. Originally, the local office issued an initial determination that because of the installment payments received by claimant J.F. under the plan, his benefit rate was reduced by $46 weekly to a gross unemployment benefit payment of $4 weekly. However, such initial determination was revised and it was then initially determined that no deduction was to be made from the unemployment insurance benefit rate of either of the claimants herein.

The plan under which the quarterly payments were made to claimants, promulgated by the employer in 1949, is entitled "Profit Sharing Retirement Plan." The plan was created by a trust agreement executed by the employer and a trust company. The trust agreement sets forth the purposes of the plan as follows:

"The purpose of the D.J. Profit Sharing Retirement Plan is twofold. It is intended through the deposit of money in the Fund in every year in which the Company earns a net profit to provide a retirement benefit for those of its regular employees who qualify under the plan by reason of length of service with the Company and thus to assure them of income in the years after they have ceased active work.

"Secondly, it is desired to make the amount of these benefits depend directly upon the profits of the Company so as to provide a direct incentive to every employee to contribute to the efficient operation of the Company."

Under these terms of the trust agreement the employer obligated itself to pay periodically to the trustees a portion of its profits to be deposited in the fund established for the benefit of employees entitled to participate in the plan. The trustees are required to establish a separate account for each eligible employee and to credit each of such accounts with the share of the profits specified in the trust agreement. Every employee, except certain employees not here material, who shall have been continually employed by the employer for at least five years is entitled to participate in the plan. No contributions to the plan are made by any employees, but it is funded entirely by the moneys paid to the trustees by the employer out of the latter’s profits. The employees who thus became members of the plan acquired a vested interest in the moneys credited to their accounts by the trustees, but under no circumstances may any employee while he remains in the employ of the Company, withdraw any part of such moneys or assign or transfer his right to receive such moneys, nor is the employees’ interest therein subject to any attachment, execution, garnishment, trustee process or any other legal or equitable process or bankruptcy proceedings. However, upon the termination of employment of an eligible employee, the total of moneys credited to his account by the trustees under the plan becomes available for his benefit or to his beneficiary in the event of his death, and such entitlement does not become forfeited irrespective of the time when the termination of employment occurs, nor on account of the cause for such termination. When the eligible member’s employment terminates, the method of payment of the funds credited to that employee’s account is determined in the sole discretion of the trustees under the plan, except that if the aggregate amount credited to such employee does not exceed $1000, the aggregate of the account is paid in a lump sum to the terminated employee or to his beneficiaries. In all other instances, the trustees of the plan are vested with discretion to choose one of three methods of payment to the terminated employee; they may pay the entire sum, irrespective of the amount thereof, in a lump sum to the separated employee; they may use the total of the account to purchase an annuity for the benefit of the separated employee; or they may pay the sum in periodic installments.

In the instant cases, when claimant J.F. was separated from the employment he had to his credit in the aforesaid account the sum of $25,339.83. The trustees determined to pay such sum to him in quarter annual installments of $600 each, and when claimant A.V.G. was separated from the employment, the total credited to his account was $9,340.68 and the trustees determined to pay that amount to him in quarter annual installments of $450 each.

It is undisputed that throughout the period here at issue, such benefits had been paid to each of the claimants herein.

Appeal Board Opinion and Decision: The claimants and the Industrial Commissioner contend that the payments received by each of the claimants as above set forth, are not pension or retirement payments as contemplated by the provisions of Section 600 of the Law and that therefore there is no authority for reducing claimants’ benefit rate. On the other hand, the employer contends that such payments constitute pension or retirement payments under a plan financed in whole by it and that therefore the benefit rate of each claimant must be reduced by the prorated weekly amount of the payments which each claimant became entitled to receive under the plan.

It is abundantly clear that the plan promulgated by the employer does not qualify as a retirement plan within the contemplation of the Internal Revenue Code, because under that statute a qualified retirement plan must be funded by contributions regularly made without regard to whether the employer had earned a profit and based upon certain actuarial tables (section 401, Internal Revenue Code; C.C.H. Pension Plan Guide, Paragraph 10,054). However, the Legislature of this state in enacting Section 600 of the Unemployment Insurance Law, did not require that in order to provide a basis for reducing a claimant’s benefit rate, the plan under which payments are made must qualify as a retirement plan under the Internal Revenue Code. On the contrary, the statute in general language requires a benefit rate reduction in every instance in which a pension or retirement payment is made under a plan financed in whole or in part by an employer. It is clear from the specific language of the trust agreement, which created the plan in issue that the primary purpose thereof was to provide retirement payments to employees who qualify as beneficiaries. Obviously, therefore, the payments to which an employee becomes entitled when he is retired from an employer’s employ is a pension or retirement payment. It is to be presumed that when the statute was enacted, the Legislature recognized the distinction between plans which qualify as profit sharing plans under the Internal Revenue Code and those which qualify as retirement plans under that code. If the Legislature had intended to except from the effect of Section 600 payments made in pursuance of profit sharing plans, they would have stated so specifically.

We do not deem it significant that the employer contributed to such plan only out of its profits. The contributions nonetheless were the employer’s moneys and therefore the financing of the fund was made solely by the employer’s funds. That the accounts of the employees were individually credited with the periodic contributions made by the employer, does not alter this conclusion. These moneys were in no sense funds of the employees, notwithstanding that they acquired the vested right to the receipt of such moneys upon termination of employment. No employee acquired any right to use of such funds therefore such moneys were not the moneys of the employee until payments were made to him after his separation from employment and the action of the trustees in determining the manner of payment.

We therefore conclude that the payments made to each of the claimants herein constitute such payments as were contemplated by the provisions of Section 600 as a basis for reducing the claimants’ benefit rate. Accordingly, the benefit rate of each claimant is to be reduced by the prorated weekly amount of payments received by him.

The employer’s objections are sustained, and the revised initial determinations are modified by reducing the amount of each claimant’s benefit rate in accordance with the provisions of section 600 of the Law. The decision of the referee is affirmed. (December 15, 1964)

COMMENTS

1. This decision stands for the principle that payments received under profit-sharing retirement plans are to be treated in the same manner as payments under other retirement plans.
2. If by virtue of an option or because of any other provision of the plan, pension or retirement payments to which the employer contributed at least 50% are made in periodic installments, although only for a limited length of time, or are designated to cover a given period, their prorated weekly equivalent for the period involved must be established and the benefit rate reduced accordingly.
3. Cases may occur where a claimant is separated while well under the typical retirement age and receives a payment pursuant to the plan. No problem arises if the payment is then made in a single lump sum without the options of a periodic payment. There is no benefit rate reduction in such instance. Other cases of this nature, that is, where a period is designated or where periodic installment payments are made, should be referred through channels to the Interpretation and Review Section for consultation.

 

A-750-1626

Index No. 790.6

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

March 4, 1965

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Refusal of Employment

REFUSAL OF EMPLOYMENT
Offer, what constitutes

Appeal Board Case Number 120,452

SEAMAN’S FAILURE TO BID FOR A JOB AT UNION HIRING HALL

Where a seaman has reasonable prospects of employment because of employment registration seniority, his failure to bid for a position while present at the union hiring hall constitutes a refusal of employment within the meaning of the Unemployment Insurance Law. (See "Comments" for other circumstances, such as failure to report at hiring hall, raising the availability issue.)

Referee’s Findings of Fact: A hearing was held at which claimant and a representative of the Industrial Commissioner appeared and testified.

By initial determinations effective November 18, 1964, claimant, a seaman, was disqualified for refusal of employment without good cause and because of unavailability for employment. He was held to be overpaid $46, which was ruled to be recoverable.

Claimant registered for employment at the union hiring hall on August 23. There are four types of seniority among seamen, depending upon length of service. Claimant, because of previous service, has the highest type of seniority.

Available positions are announced daily at the union hiring hall. Seamen who desire employment apply for the available work which is given to the seaman with the greatest employment registration seniority. Claimant has sufficient registration seniority to apply for and obtain a position on November 18. Claimant was present in the union hiring hall when the position was announced and he knew that in all probability, he could obtain the position if he applied for it. The position involved work as a bedroom steward and officers’ messman. Claimant disliked such a combination and failed to apply for an obtain the position for that reason. Also, he has worked sporadically as a longshoreman and was at that time interested in work as a longshoreman. For that reason, he permitted his 90 day registration for employment card to expire without "Shipping out."

Claimant was paid $46 in benefits subsequent to November 18 because he failed to disclose to the insurance office that could have applied for and obtained employment.

Referee’s Opinion and Decision: The posting of available work by a representative of the union upon the request of an employer constitutes and is, in effect, a constructive referral to employment since all seamen who have registered for employment are invited to apply for the available position. This is the only mode of referral to employment in connection with the hiring of seamen through the union hiring hall. A seaman is aware that he is required to shape daily in order to be considered for employment in connection with this process of referral. With reference to selection for other types of employment, in the ordinary case the workers who are referred to a prospective employer are interviewed and one applicant is selected by the employer for the available position. In connection with seamen, it has been agreed that selection for the position among the seamen who have been referred (the process of referral is made up of posting of the jobs in the union hiring hall for bids by any seaman possessing an employment registration card) will be based upon the seniority of the seamen who have registered for employment and have accepted the referral by bidding for the position. Accordingly, where a seaman has reasonable prospects of employment because of employment registration seniority, and he fails to bid for a position, such failure to bid for the work which the seaman has reasonable prospects of obtaining, constitutes a constructive refusal of referral within the meaning of the Unemployment Insurance Law. To hold otherwise would mean that a seaman who obtained employment through a union hiring hall could never be disqualified for refusing employment by simply failing to bid for available work. No such result was intended by the Law.

The credible evidence also compels the conclusion that claimant was unavailable for employment in his usual occupational category as a seaman and he was properly held ineligible because of unavailability for employment.

Claimant was overpaid any benefits received subsequent to November 18, the effective date of the initial determinations. The overpayment is recoverable since claimant failed to disclose to the insurance office that he had refused referral to employment by failing to apply for the available position as a seaman and also because of his failure to disclose that he was not interested in employment in his customary occupation as a seaman. It is significant that claimant permitted his 90-day employment registration to expire without accepting referral to employment by bidding for available work. The initial determinations are sustained. Claimant was overpaid. The overpayment is recoverable.

Appealed By: Claimant

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 findings of fact and the opinion of the Board. The decision of the referee is affirmed. (February 16, 1965)

COMMENTS

Release A-750-952 (Rev.), dealing with a somewhat similar case, is now obsolete and should be so marked. The Board in that decision overruled in effect a refusal disqualification by sustained an alternate determination of unavailability, finding that "claimant absented himself from the hiring hall" and holding that in doing so "he had, in fact, removed himself from the labor market." The court upon appeal by the Industrial Commissioner sustained the Board and, since "the evidence presented is sketchy, inconsistent and fails to establish facts with clarity," stated: "we cannot say as a matter of law that the claimant refused employment" under disqualifying conditions.

The evidence in the instant case is quite clear and shows that claimant did not remove himself from the labor market but "was present in the union hiring hall when the position was announced and he knew that in all probability, he could obtain the position if he applied for it." Under such circumstances, in following the here reported Board decision, the issue presented is one of "refusal."

If the evidence does not clearly show a refusal but where circumstances are such that the claimant’s actions, or failure to act, point to unavailability, by withdrawal from the labor market or because of other conditions, that issue must be resolved. Failure to report at the hiring hall is an illustration of such a situation.

 

A-750-1628

Index No. 1635A-2

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

March 18, 1965

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Domestic Circumstances

Appeal Board Case Number 118,559

DESIRE TO BE WITH CHILDREN DESPITE CHILD CARE ARRANGEMENTS

Where claimant had engaged someone to care for children, leaving employment to be with them during the summer is without good cause since claimant’s presence was not a compelling necessity.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 31, 1964, on the ground that she voluntarily left her employment without good cause is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a business office representative for the telephone company, last worked for the employer on July 2, 1964. She commenced this employment which was a temporary tenure on September 17, 1963, and worked three days a week, seven hours a day. The employer’s rules provide that temporary employees could only work for a period of 11 consecutive months and then would be terminated by the employer. The termination is a lay-off and is characterized by the employer as "work completed." Temporary employees are not eligible for rehire until the expiration of three months from the last day of work and are only permitted to resign if there is no work for them in which event the employee can be reinstated after a one week period. There was work for claimant through August 17, 1964. However, on July 2, 1964, claimant notified the employer that she wished to resign in order to be with her children during the summertime. She had hired her cousin to care for her children. Claimant’s presence therefore was not a compelling necessity in order to care for her children. Although there was work for claimant on July 2, 1964, her resignation was characterized by the employer as "work completed."

Claimant filed for unemployment insurance benefits on September 3 effective as of August 31, 1964. On October 5, 1964, claimant was rehired by the employer although claimant had called the employer in mid-August and was told that there was no work for her at that time.

Appeal Board Opinion and Decision: Claimant’s voluntarily leaving of her employment on July 2, 1964, was without good cause when she resigned her position in order to spend the summer with her children. Her reasons were personal and non-compelling. We do not accept the view that the claimant primarily was motivated to resign by the fact that in any event the employer was going to terminate claimant mandatorily on August 17 and she would have to wait three months for rehire and therefore claimant chose to have the three months’ suspension period commence with July 2 rather than August 17, 1964. We hold that the actual date of claimant’s filing for benefits does not affect our conclusion that claimant’s voluntarily leaving of employment was without good cause and that her reasons therefore were personal and non-compelling.

The initial determination of the local office is sustained. The decision of the referee is reversed. (March 9, 1965)

 

A-750-1629 (Rev.)

Index 1315-12

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

MAY 20, 1965

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

Appeal Board Case Number 118,398

INDUSTRIAL CONTROVERSY - PICKETING CAUSED BY ANOTHER UNION

An industrial controversy at one of the employer's establishments is not extended to another of his establishments solely because it is picketed by the striking union.

Referee's Decision: The decision of the referee overruled the initial determinations of the local office holding claimants eligible to receive benefits without disqualifying conditions and sustained the employer's objection to the payment of benefits to the said claimants on the ground that they were subject to disqualification for having voluntarily left their employment without good cause, effective the day after the termination of such employment.

Appealed By: Industrial Commissioner.

Findings of Fact: The employers operated warehouses at various separate locations in New York City and in the State of New Jersey. The employers were in contractual relations with the Local 818, affiliated with the National Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ind.) with respect to the persons employed in its New York City warehouses. Claimants were members of such union local and were covered by the collective bargaining agreement. The employers were also in contractual relations with Local 617 affiliated with the same parent organization with respect to its employees in its New Jersey warehouses. Each of the agreements between the employers and the respective union local was separate and distinct. Each agreement expired by its term on May 31, 1964.

At the expiration of its agreement with the employers, Local 818, the union with which claimants herein were affiliated, negotiated with the employers for a renewal contract. It agreed with the employers to indefinitely extend the period of the expired contract while the negotiations were pending and it further agreed that its members would continue in employment in the New York City establishments. However, Local 617, the local which covered the New Jersey employees, declared a strike against the employers on June 1, 1964, and during the pendency of such strike, that local caused picketing at the New York City establishments of the employers, specifically at the premises where each of the claimants herein was employed. Claimants, together with other persons employed in the New York City establishment, refused to cross the picket lines which had been placed by the New Jersey local at the New York City establishment and therefore they ceased working. They returned to work immediately after the pickets were removed. Prior to the time when the pickets were completely removed from the New York premises, the employers commenced a proceeding in the United States District Court for the Southern District of New York charging the New Jersey union local with illegal picketing and by consent of the parties a restraining order was issued by the Court limiting the number of pickets which could be maintained at the New York establishment.

Appeal Board Opinion and Decision: The referee concluded that claimants herein had not lost their employment due to the existence of an industrial controversy in the establishment in which they were employed, but nevertheless concluded that claimants were subjected to disqualification on the theory that by terminating their employment on account of their unwillingness to cross a picket line, they voluntarily left their employment without good cause within the purview of the Unemployment Insurance Law. There is ample authority in support of the referee's conclusion that claimants did not lose their employment as the result of an industrial controversy in the establishment in which they were employed. It has been held repeatedly that the suspension of benefits provided for in Section 592 of the Law applies only in instances where the loss of employment results form an industrial controversy in the establishment in which the claimants were employed. "Establishment" has been defined as the geographical location of the place of employment (See Matter of George, 14 N.Y. 2d 234 affirming Appeal Board 68,848 et seq' Matter of Ferrara, 10 N.Y. 2d modifying Appeal Board 63,261 thru 63,308-58 et al.). In the instant case it is undisputed that there was no controversy between the employer and claimants or their co-workers at the New York establishment or the union which represented them. The employer was involved in an industrial controversy with the union with which it contracted with respect to employees located at an entirely different establishment in another state. The existence of that industrial controversy in New Jersey cannot be deemed to have existed in the establishment in which claimants herein were employed. Nor does the fact that the New Jersey local picketed the New York City establishment (See Matter of Ferrara, supra; also Appeal Board 69,148; 70,856). Accordingly, we concur in the conclusion reached by the referee that the claimants herein did not lose their employment as a result of an industrial controversy in the establishment at which they were employed and hence they are not subject to a suspension of benefits under the provisions of Section 592 of the Law.

There remains for consideration the question with regard to whether claimants' refusal to cross the picket line constituted a voluntary leaving of employment without good cause. The authorities hold to the contrary. Even though there may be no actual fear of personal violence, a worker is provided with good cause to refuse to cross a picket line if his personal scruples so dictate (Matter of Wittlaufer, 277 App. Div. 805, affirming Appeal Board 18,177-48; Matter of Bucklauew, 277 App. Div. 805, affirming Appeal Board 18,129-48; also see Matter of Freeman, 9 App. Div. 2d 1008, affirming Appeal Board, 66,611 thru 66,613-58.

Accordingly, we conclude that there is no validity to the employer's objection and that the claimants are not subject to either a suspension of benefits or a disqualification from receiving benefits.

The initial determinations holding that claimants are eligible for benefits without disqualifying conditions are sustained. The objections of the employer are overruled. The decision of the referee is reversed. (March 12, 1965)

COMMENTS

That portion of the decision which deals with the refusal to cross a picket line will apply to all similar instances. Thus, if there is a picket line at the claimant's establishment but no industrial controversy exists at that "establishment", the claimant is neither subject to a strike suspension nor to a voluntary quit disqualification if he failed to report for work because of his personal scruples against the crossing of a picket line.

 

A-750-1630

Index No. 1580D-2

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

March 25, 1965

INTERPRETATION SERVICE - BENEFIT CLAIM
MISREPRESENTATION - OVERPAYMENTS
Penalty Period

Appeal Board 119,121

FORFEITURE - PENALTY INADVERTENTLY WITHHELD - FORFEITURE PENALTY REMAINS

Where benefits should have been withheld because of a forfeiture penalty but were paid in error and are non-recoverable, the forfeiture penalty is not served in that period but remains in effect and applies to subsequent effective days.

Referee's Findings of Fact: A hearing was held at which claimant and a representative of the employer appeared and testified. A statement was submitted on behalf of the Industrial Commissioner in lieu of an appearance.

Claimant, a paster, was ruled ineligible because of lack of total unemployment by initial determination effective July 8, 1963, only. His benefits were ruled to be forfeited for 24 effective days because of wilful false statements to obtain benefits. Claimant was ruled overpaid $7 in connection with these determinations, which he has repaid. Claimant was ruled overpaid an additional $180 for benefits received during the period from July 6, to August 16, 1964, and this overpayment was held to be recoverable. He was further ruled ineligible because of unavailability for employment by initial determination effective September 29, 1964.

The initial determinations ruling claimant ineligible because of lack of total unemployment and ruling that claimant had made wilful false statements to obtain benefits were given to claimant on November 1, 1963. He did not request a hearing until October 13, 1964. The Industrial Commissioner has interposed the contention that claimant's request for a hearing is not timely as to these determinations. Claimant states that he did go to the insurance office during November, 1963, and was told that the determinations were correct, so that he took no further action.

Claimant filed a new original claim effective June 29, 1964. The insurance office had claimant's insurance record which indicated he was then under a penalty of forfeiture of 24 effective days. However, apparently due to inadvertence, benefits were paid to the claimant although he was under a forfeiture penalty and he received six benefit payments for the period from July 6 to August 16, 1964. Claimant did not realize that he was not entitled to benefits for that period because of the prior penalty. He believed that since he had previously repaid the $7 overpayment the matter had ended, and he was unaware of the significance of the forfeiture penalty.

Claimant, age 64, had worked for his last employer for about three years to June, 1964. Subsequent to the end of that employment he applied for his union retirement annuity. He is receiving $87.50 per month, and under the terms of this retirement can not work for his former employers and, further, if he earns over $100 a month he will forfeit the retirement annuity for that month. Claimant states that he is not willing to forfeit the retirement annuity for any month. During the period involved claimant has made extremely meager contacts for employment. He was unable to give the name of any employers whom he contacted, but states simply that he did contact some employers. Admittedly, none of these contacts were made for at least three weeks prior to the hearing

Referee's Opinion and Decision: Since claimant did not request a hearing within 30 days as to the determinations of lack of total unemployment and wilful false statements to obtain benefits, the Referee is without jurisdiction to determine the merits of those issues.

Claimant was overpaid $180 since he received benefit payments during a period when he was under a forfeiture penalty. However, the record indicates he received these payments in good faith. Claimant was unaware that he had to notify the insurance office of the forfeiture penalty and, further, he did not understand the nature of such penalty, or the fact that he was required to sign for six checks that he would not receive because of such penalty. Accordingly, this overpayment is not recoverable. However, the forfeiture penalty remains in effect and in the event the claimant becomes entitled to receive benefits, such penalty may be imposed. On the issue of availability claimant has shown no attachment to the labor market. His acceptance of the retirement annuity prevents him from working for his prior employers and it appears that he is not willing to give up such annuity in the event he obtains employment. Further, his job efforts during the period involved were virtually nil and did not show an attachment to the labor market. Claimant was not available for employment from September 22.

The initial determinations of lack of total unemployment and wilful false statements to obtain benefits remain in effect. Claimant was overpaid $7 in connection with these determinations, which is recoverable. The initial determination that claimant was overpaid an additional $180, which is not recoverable. The initial determination that claimant was unavailable for employment is sustained.

Appealed By: Claimant

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 findings of fact and the opinion of the Board. The decision of the referee is affirmed. (February 2, 1965)

 

A-750-1634

Index No. 1460B-4

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

April 21, 1965

INTERPRETATION SERVICE - BENEFIT CLAIM
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without work
Other

Appeal Board UCFE 1533

FEDERAL EMPLOYEE (UCFE) - HOLIDAY PAY

A Federal employee (UCFE) is not totally unemployed on days for which he receives holiday pay even though such days follow the date on which the federal services of the claimant terminated.

Referee's Findings of Fact: A hearing was held at which claimant F. and a representative of the Industrial Commissioner appeared and testified.

By initial determinations, claimant F. was ruled ineligible effective November 11, 1964, and November 26, because of receipt of holiday pay. Claimant R. was ruled ineligible effective November 11 only, because of receipt of holiday pay. Claimant F. was employed by the Federal government through October 31, 1964, when she was compulsorily retired. The Federal Agency reported "Retirement-Mandatory eff COB 10/14/64 A/L Due 295 hrs. plus 2 holidays."

The two holidays for which she was paid was Armistice Day on November 11 and Thanksgiving Day on November 26.

Referee's Opinion and Decision: The record clearly establishes the receipt of holiday pay by F. for the two days in issue, in addition to the payment for accrued annual leave. The receipt of such holiday payments falls squarely within Section 591, Subdivision c of the Unemployment Insurance Law, and therefore, claimant was ineligible for benefits for these two days.

Claimant R. failed to appear, although duly notified.

The initial determinations are sustained.

Appealed By: Claimant

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 findings of fact and the opinion of the Board.

The decision of the referee is affirmed. (January 25, 1965)

 

A-750-1635

Index No. 1460C-3

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

April 21, 1965

INTERPRETATION SERVICE - BENEFIT CLAIM
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without work
Vacation pay

Referee Decision No.3-7-65

STATE EMPLOYEE KEPT ON PAYROLL -LEAVE TIME LIQUIDATION

State employee carried on the payroll in order to liquidate accumulated leave time (annual, personal and overtime) is not totally unemployed during such period.

Referee's Findings of Fact: A hearing was held at which claimant and a representative of the employer appeared and testified. A statement was submitted on behalf of the Industrial Commissioner in lieu of an appearance.

By initial determination effective November 16 through December 3, 1964, claimant was ruled ineligible because of lack of total unemployment.

Claimant was employed by the Canal Division of the State Department of Public Works, as a ship's cook, at an annual salary of $4124. He worked a five-day, 40-hour week and was paid gross wages of $163.16 bi-weekly. Claimant commenced his employment on April 13, 1964. The job was a seasonal one and was scheduled to terminate in December. During the course of his employment, claimant accumulated vacation time and personal leave time. In addition, he worked overtime for which he was to receive compensatory time off. The employing agency calculated that if claimant's last day of work were November 16, he would be able to liquidate 172 hours of accumulated annual leave, 14 hours of personal leave and 47.30 hours of overtime by the end of the year. Accordingly, claimant last worked on November 16, but was carried on the employer's payroll until his accumulated time was liquidated. He received his regular bi-weekly pay check with the usual tax deductions until he was removed from the payroll and officially terminated.

Referee's Opinion and Decision: In Matter of Blitz, 302 N.Y. 573, affirming 275 App. Div. 1015 , reversing Appeal Board 18,942, the Court held that a state employee who continues on the state payroll while liquidating annual leave, is not totally unemployed during such period. The Board held to the same effect in Appeal Board 117,191, affirming Referee Dec. 32-63-64. Accordingly, in the instant case, I must conclude that claimant was correctly ruled ineligible because he lacked total unemployment during the period under review.

The initial determination is sustained. (February 24, 1965)

 

A-750-1638

Index No. 1420-11

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

June 9,1965

INTERPRETATION SERVICE - BENEFIT CLAIM
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous Employment

Appellate Division Decision

Matter of Max Carasso

Appeal Board 105,725

TOTAL UNEMPLOYMENT, QUESTION OF; SELF-EMPLOYMENT

Claimant, a free lance business consultant, who advertised in a trade publication, maintained an office and storage space, and had a telephone answering service with a listing in the telephone directory, was not totally unemployed notwithstanding that the business was merely a side line while regularly employed, was sporadic, involved limited investment and was not remunerative during the period for which benefits were claimed.

Referee's Findings of Fact: A hearing was held at which claimant, his attorney, and a representative of the Industrial Commissioner appeared. Testimony was taken.

By initial determination effective June 10, 1963, claimant, an administrative assistant, was ruled ineligible because of lack of total unemployment. By another initial determination effective May 20 through June 9, 1963, claimant was ruled ineligible because of failure to comply with registration requirements.

At the time of the hearing, claimant withdrew his request for a hearing and his objection to the determination of failure to comply with registration requirements.

Claimant was last employed on December 15, 1962, and had worked for this employer for approximately 11 months at a terminal salary of $7800 per year. During the course of his employment, claimant was also engaged in free-lance work as a consultant. He earned approximately $1532 in 1962 in this work. Claimant maintains an office address and telephone service for which he pays the sum of $10 a month. He has a listing in the telephone directory under this address. He receives mail at this address, which is forwarded to him at his home. Claimant also maintains an office and storage space at another address, for which he pays $25 a month. During the early part of 1963, claimant solicited business by mailing letters to various concerns. He also has advertised in a trade publication. This publication will again be issued in 1963, and claimant has again repeated his advertisement in it. In 1963, claimant has earned a gross sum of approximately $2000.

Referee's Opinion and Decision: The credible evidence established that claimant is engaged in self-employment. All periods of self-employment are periods which constitute a lack of total unemployment within the meaning of the Unemployment Insurance Law, irrespective of whether or not income had been received regularly. (See Appeal Board 49,943- 55) It must be held that during the period under review, claimant was engaged in self-employment and that, therefore, he was not totally unemployed. He was correctly ruled ineligible because of lack of total unemployment. Since claimant withdrew his request for a hearing and objection to the initial determination of failure to comply with registration requirements, this issue is not before me.

The initial determination as to lack of total unemployment is sustained. The initial determination as to failure to comply with registration requirements remains in effect. (August 2, 1963)

Appealed By: Claimant

Appeal Board 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 findings of fact and the opinion of the Board. The decision of the referee is affirmed. (October 30, 1963)

Appellate Division Decision: Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board denying claimant benefits on the grounds that he was not totally unemployed within the meaning of Section 522 of the Labor Law. Claimant asserts that the board's finding that he was not totally unemployed is unwarranted. Of course, this determination is factual and must be sustained if supported by substantial evidence. Here there is evidence that claimant was, at the time he claims to have been totally unemployed, engaged in free-lance work as a business consultant. He maintained an office and storage space, had a telephone answering service and a listing in the telephone directory, and advertised in a trade publication. The fact that this was merely a sideline while he was regularly employed or that it was sporadic and involved only a limited investment is not controlling. Nor is the fact that the endeavor was non-remunerative during the period for which benefits are claimed (Matter of Bailey [Catherwood], 18 AD 2d 727) or that claimant did not realize that his activities constituted employment (Matter of Bunzl [Lubin], 1 A 2d 46). On the instant record the board could properly find that claimant was not totally unemployed.

 

A-750-1642

Index 755 D.11

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

JULY 1965

INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Work History - Part-Time

AVAILABILITY - DESIRE FOR PART-TIME WORK - CHILD CARE

Restriction to part-time work because of claimant's desire to be with her children after school is a personal reason insufficient to justify a status change from a full time to a part-time worker and, therefore, renders the claimant unavailable for employment.

A.B. 123,329

Referee's Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective February 8, 1965 on the ground that she was not unavailable for employment is overruled.

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant worked as a telephone operator for a utility company on a full time basis. She has two children, ages 6 and 7. She employed a baby sitter to care for her children. Claimant left her employment on November 26, 1964 after the baby sitter became ill and left her employment. Claimant is separated from her husband. She advised the employer that she intended to remain at home and care for her children.

Claimant sought employment as a telephone operator and general office worker. Some opportunities existed for the hours of work to which claimant restricted herself.

Appeal Board Opinion: We are not in accord with the conclusion of the referee that claimant was available for employment. Claimant's entire work history has been as a full time worker and she now restricts herself to part-time employment. Claimant has not shown this self-imposed restriction became necessary because of compelling circumstances over which she had no control. Claimant's desire to work only during hours which would enable her to be at home when her children return from school is a personal reason which is insufficient to justify a change in her status from a full time to a part-time worker (Compare Appeal Board, 62,005). We, therefore, hold that claimant was unavailable for employment.

The initial determination of the local office holding claimant ineligible for benefits effective February 8, 1965 on the ground that she was not available for employment is sustained.

The decision of the referee, insofar as appealed from, is reversed. (7/8/65)

COMMENT

In Release A-750-1472 (A.B. 62,005-57), Index 755D.8 it is stated:

"A claimant who is compelled by force or circumstances, over which he has no control, to limit himself to part-time work which he can perform and which if obtainable in the labor market is available for employment even though he has a prior history of full time employment."

In the case here reported claimant desired to work only during hours which would enable her to be at home when her children returned from school. The Board held that "claimant has not shown that this self-imposed restriction became necessary because of compelling circumstances over which she had no control." Apparently, the Board felt that claimant could have hired a baby sitter as she had done in the past when she was a full time employee.

 

A-750-1644

Index No. 805-4

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

August 25, 1965

INTERPRETATION SERVICE - BENEFIT CLAIM
CLAIMS REGISTRATION AND REPORTING
Due Diligence

Appeal Board 124,639

FAILURE TO REPORT SUBSEQUENT TO EXCUSED FAILURE TO REPORT

Where claimant's failure to report as required is excused but he does not subsequently report in such statutory week for unjustifiable reasons, no credit is allowed for days in that week subsequent to the excused failure to report.

Appeal Board Decision

The Industrial Commissioner appeals from the decision of the referee filed June 7, 1965, insofar as it modifies the revised initial determination of the local office holding claimant ineligible to receive benefits effective April 14 through April 18, 1965 (inadvertently stated by the referee to be effective April 13 through April 18, 1965) on the ground that he failed to comply with reporting requirements, as modified by the referee to be effective April 14, 1965, only. The referee also ruled that claimant was not eligible to receive benefits effective April 13, 1965, only, on the ground that he was not available for employment.

Findings of Fact: Claimant, a laborer, was assigned Thursday as his reporting day. However for the statutory week ending April 18, 1965 local office reporting schedules were varied because of religious holidays which fell during that week, and claimant was told to report on Tuesday, April 13 instead of on Thursday, April 15. He failed to report on April 13 because his attendance was required as a witness in a criminal case pending in the New York City Criminal Court. Claimant's failure to report on that day was excused. He did not report to the local office again until April 19. He failed to report on Wednesday, April 14 because it did not occur to him to do so, and although he could have reported in the afternoon on April 15 and could have reported at anytime that the local office was open on April 16, he did not.

Claimant assumed that the local office was closed on Thursday and Friday, April 15 April 16, because his reporting date had been changed from April 15 to April 13. The local office was not closed on April 15 and April 16.

Opinion: The Industrial Commissioner's regulation 41.d provides as follows:

"A claimant may not receive credit for any period of unemployment from the day on which a failure to report occurred until he next reports or until the beginning of the week in which he next filed an additional claim in accordance with regulation 40, whichever is earlier."

In Appeal Board 55,352, the claimant was required to report to the insurance office on March 16, 1956, and failed to do so for a non-excusable reason. March 17 and March 18, 1956 were Saturday and Sunday, days on which the local office was closed. The Board held that the failure to report as required on March 16, 1956 carried with it the consequences of ineligibility on the Saturday and Sunday following the failure to report, notwithstanding that the local office was closed on those days.

We see no substantial difference in this case from the factual situation in Appeal Board 55,352. Claimant herein admittedly failed to report to the local office on April 14, 1965 through his own neglect. Since he is chargeable with a failure to report on April 14, 1965, he is likewise to be charged with the consequences which flow from his failure to report on that date, whether or not the local office was open during the intervening days before he finally reported on April 19. Therefore, in accordance with the provisions of the quoted paragraph of Regulation 41, claimant may not receive credit for April 15 through April 18, 1965. Since claimant could not accrue any effective days during the statutory week ending April 18, 1965, it is not necessary to decide claimant's availability for employment effective April 13, 1965, only, as that question is academic.

Decision: The revised initial determination of the local office holding claimant ineligible to receive benefits effective April 14 through April 18, 1965, on the ground that he failed to comply with reporting requirements is sustained. The decision of the referee, insofar as appealed from, is reversed. (August 13, 1965)

 

A-750-1645

Index No. 1605B-1

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

August 31, 1965

INTERPRETATION SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Discharge or Leaving

Appeal Board 125,142

RESIGNATION SUBSEQUENT TO LAY-OFF

A claimant who is laid off for an indefinite period with no expectation for recall within a reasonable time does not voluntarily leave his employment upon submitting his resignation.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective April 1, 1965, on the ground that he voluntarily left his employment without good cause, as modified by the referee to be effective April 6, 1965 is sustained.

Appealed by: Claimant

Findings of Fact: Claimant was employed as a mail sorter for about nine months until March 26, 1965, when he was laid off for an indefinite period with no immediate prospects of re-employment in the future. On April 5, 1965, claimant visited the establishment of his former employer and when he ascertained that there was no work then available for him and could not be given any assurance when work would be available for him in the future, he submitted a resignation.

Appeal Board Opinion and Decision: When claimant was laid off on March 26, 1965, or an indefinite period and with no expectation for a recall within a reasonable time thereafter, claimant no longer had a job pending. The relationship of employer-employee then ended. His resignation on April 5, 1965, was an empty gesture, since he had no job then from which he could have resigned.

Under the circumstances, claimant may not be charged with having left his employment without good cause for the obvious reason indicated.

The initial determination of the local office is overruled. The decision of the referee is reversed. (August 25) 1965)

 

A-750-1646

Index 1410C-3

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

SEPTEMBER 3, 1965

INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Statutory limit on earnings

Appeal Board Case Number 124,517

RECEIPTS OF "STAMPS" AS VACATION PAY; QUESTION OF STATUTORY LIMITATION FOR PARTIAL BENEFITS

Where, pursuant to the collective bargaining agreement governing the industry, claimants receive stamps representing six per cent of their wages, redeemable in cash from the union "vacation pay" fund, such stamps represent vacation pay and cannot be used in determining the $55 statutory limitation for partial unemployment benefits.

Referee's Decision: The initial determination of the local office holding claimant eligible to receive benefits, effective the statutory week ending April 18, 1965, without any disqualifying conditions is overruled. The employer's objection thereto on the ground that claimant lacked total unemployment in that he earned in excess of $50 during the statutory week is sustained.

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant is a structural steelworker and is a member of the predominant union in the industry. During the statutory week ending April 18, 1965, he was employed on April 15, 1965. He was paid $48 cash wages and received "vacation pay" stamps of the value of $2.90.

Pursuant to the collective bargaining agreement governing the industry, structural steelworkers, when paid their wages are given stamps representing six per cent of their wages, in addition to their cash wages. The employers purchase these stamps, at face value, from the union. The money paid for these stamps is held by the union in a "vacation pay" fund. During the period from June 1 to September 30 of each year, the steelworkers may redeem the stamps in their possession, at face value, in cash from the fund. They may do this, even though they are then currently employed. In addition, they may redeem the stamps at any other time of the year, if they are then unemployed. The employer objected to the payment of benefits to claimant for the statutory week in issue, on the ground that claimant's cash wages of $48 and the vacation pay stamps of $2.90 represented earnings in excess of the statutory maximum set forth in Section 523 of the Law and therefore claimant was ineligible to receive benefits.

Appeal Board Opinion and Decision: The Board has ruled in Appeal Board, 100,965A that vacation pay or allowance is no to be used in determining whether claimant has earned in excess of the statutory maximum for a particular week wherein benefits are claimed. The Board said:

Accordingly, the vacation allowance of $51.84 which claimant received for the three days of the vacation period in that week was not "compensation" for "days of employment" as contemplated by Section 523, so as to preclude claimant from receiving credit for effective days on the basis of her remaining days of unemployment in that week. Nowhere in Section 591.3 which governs eligibility during vacation periods is it provided that a vacation allowance or payment is to be deemed "compensation" for days of employment or that the days for which the allowance is made shall be deemed "days of employment."

Although the above was written in reference to a case which was governed by Section 591.3 as it read prior to its amendment by Chapter 794 of the Laws of 1963, such amendment did nothing to change the section in this respect. Vacation allowance and vacation credits still are not to be deemed "compensation" so as to make claimant ineligible to receive benefits on the ground that his earnings in the week exceed the statutory maximum set forth in Section 523.

The vacation stamp plan considered herein is merely a method of computing accrued vacation credits. It was designed for the convenience of the employers and employees in a specific industry due to the conditions of employment in that industry and falls within the purview of Section 591.3 of the Law.

The claimant is eligible to receive benefits and was not overpaid.

The initial determination of the local office is sustained. The employer's objection is overruled. The decision of the referee is reversed. (September 1, 1965)

COMMENTS

The principle that vacation pay is not considered in determining the statutory limitation for partial unemployment benefits (Section 523) is contained in Release A-750-1603.

 

A-750-1647

Index No. 1505E-4

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

November 30, 1965

INTERPRETATION SERVICE - BENEFIT CLAIM
MISREPRESENTATION
Evidence of - Misconduct

Appeal Board Case Number 122,795

FALSE STATEMENT DURING COURSE OF REFEREE HEARING

A wilful false statement deliberately made by the claimant at a referee hearing is subject to the imposition of the penalty provided in Section 594 of the law when there is evidence showing a calculated scheme to deceive the hearing officer, such as the presentation of spurious documents purporting to support the false statement.

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 20 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, an assistant bookkeeper, was laid off from her last job on December 11, 1964. During the course of her claim for benefits filed effective December 14, 1964, initial determinations were issued by the local office holding claimant ineligible to receive benefits (1) for an indefinite period effective December 14, 1964 because she was not available for employment and (2) effective December 21 through December 27, 1964 because she failed to comply with reporting requirements. Claimant duly requested a hearing thereon which was held on January 22, 1965. During the course of said hearing, claimant testified in connection with the issue of her search for work, that she had placed a "situations wanted" advertisement in one of the leading metropolitan newspapers on four successive Sundays. She submitted to the referee a receipt purporting to have been issued by an advertising agency which Claimant had used for the placement of the advertisement. Claimant offered such testimony for the deliberate purpose of convincing the referee that she was available for work and that she was making diligent efforts to seek work. The referee adjourned the hearing in order to allow the Industrial Commissioner to confirm the receipt as well as various job efforts which claimant alleged she had made. Thereafter and on February 3, 1965, the local office issued the initial determination charging claimant with having wilfully made false statements to obtain benefits and imposing the penalty herein reducing claimant's future benefit rights by 20 effective days because claimant ". ..produced a fake receipt for an ad placed with the N.Y. Times through an agency at the hearing which was held on 1/22/65."

At the adjourned hearing held on March 30, 1965, claimant admitted that the receipt was spurious and that she had filled out a blank receipt which she had obtained from a former employee of the advertising agency in order to protect herself because the personnel at the insurance office did not believe her job search was adequate and sincere.

Appeal Board Opinion and Decision: A novel question is presented on this appeal. The sole issue is whether or not claimant's false statement during the course of a hearing before an unemployment insurance referee falls within the provisions of Section 594 of the Law and therefore constitutes a wilful misrepresentation made to obtain benefits which requires the imposition of the statutory penalty.

Section 594 of the Law provides:

Reduction of benefits for false statement. A claimant who has wilfully made a false statement or representation to obtain any benefit under the provisions of this article shall forfeit benefits for at least the first twenty but not more than the first eighty effective days following discovery of such offense for which he otherwise would have been entitled to receive benefits. Such penalty shall apply only once with respect to each such offense.

For the purpose of subdivision four of section five hundred ninety of this article, the claimant shall be deemed to have received benefits for such forfeited effective days.

The penalty provided in this section shall not be confined to a single benefit year but shall no longer apply in whole or in part after the expiration of two years from the date on which the offense was committed.

A claimant shall refund all moneys received because of such false statement or representation made by him.

It is abundantly and unmistakably clear that claimant was attempting to obtain benefits under the Unemployment Insurance Law when she deliberately and wilfully made a false statement when she testified that she had demonstrated her availability by causing an advertisement to be placed in the newspapers and that she had a receipt from an advertising agency attesting to that fact. Claimant admittedly knew that the statement was false and that she had made it with the calculated intent that it be relied upon so that she would obtain benefits. The circumstance that claimant made the wilful misrepresentation in the course of her testimony before the referee at the hearing on the merits of her claim for unemployment insurance benefits cannot alter the conclusion that the statutory penalty provided for in Section 594 of the Law must be imposed. That section makes no distinction as to the manner or the place where wilful misrepresentations are made and provides only that a penalty be imposed upon a claimant who has wilfully made a false statement or representation to obtain any benefit under the provisions of the Unemployment Insurance Law.

We are not in accord with the referee's conclusion that Section 594 is inapplicable for the reason that the section is found in Title 7 of the Law, (dealing with benefits and claims) and therefore does not encompass proceedings set forth in Title 8 of the Law. Section 594 specifically provides that it relates to wilful misrepresentations made to "obtain any benefit under the provisions of this article" (underscoring supplied). Titles 7 and 8 are parts of the same Article of the Labor Law, namely Article 18, which is the Unemployment Insurance Law (Section 500). Consequently, when a claimant, in furtherance of his claim for benefits under Title 7 of the Law, avails himself of the right to protest an initial determination, the proceedings which ensue, including the hearing which is held in pursuance of the provisions of Title 8 of the Law, are part and parcel of the proceedings by which claimant is attempting to obtain a benefit under the provisions of Article 18 of the Labor Law. Hence, as in the instant case, when the claimant wilfully and deliberately testifies falsely and attempts to bolster such false testimony by producing manufactured, spurious documentary evidence for the specific purpose of inducing the hearing officer to overrule the initial determination of ineligibility in reliance thereon, the conclusion is compelled that such claimant has wilfully made a false statement to obtain a benefit under the provisions of Article 18 of the Labor Law, as contemplated by Section 594 thereof.

In arriving at our conclusion, we do not subscribe to the contention advanced on behalf of the Industrial Commissioner to the effect that Section 594 was adopted by the Legislature with the "express intent" of providing "a useful means or method of deterring the commission of perjury at Appeal Board or Referee hearings" or that such section was adopted "in order to provide a means of administrative control of referee and Appeal Board hearings." Suffice it to say, that it has been conclusively established in the instant case that this claimant deliberately and wilfully made false statements and representations by affirmatively producing a document which she knew to be spurious.

We recognize that not infrequently the acceptance by the referee of one party's version of the facts and the rejection of a contrary version in arriving at a decision on a disputed issue of fact implies that the rejected version is false. However, we do not hold that in all such instances wherein the claimant's version is rejected, it necessarily follows that the penalty provided for in Section 594 of the Law is applicable. We recognize that interested parties may exaggerate and that testimony may be colored by the desire to present the issues in the light most favorable to the affiant. In such instances, the issue will be disposed of on the basis of the hearing officer's evaluation of the credibility of proof, and in the absence of an affirmative showing of a calculated scheme to deceive the hearing officer, we would find no basis for an application of the provisions of Section 594 of the Law.

Likewise, the Industrial Commissioner is not precluded from issuing the initial determination here under review by reason of the fact that claimant's actions complained of may constitute a basis for criminal prosecution. Significantly Section 630, contained in Title 9 of the Law, dealing with penalties and misdemeanors, specifically provides that the penalties and misdemeanors therein defined "are in addition to those otherwise prescribed in this entire article." Accordingly, we conclude that such false statement by claimant, under these particular circumstances, constitutes a wilful misrepresentation made to obtain benefits and requires the imposition of the statutory penalty (Labor Law, Section 594).

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 20 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. (October 28, 1965)

COMMENTS

A forfeiture penalty resulting from false statements during the course of a hearing should only be imposed where, as here, it is "abundantly and unmistakably clear" that claimant "deliberately and wilfully" made the false statements or misrepresentations.

As stated by the Board in the following language, caution should be exercised in applying this principle:

We recognize that not infrequently the acceptance by the referee of one party's version of the facts and the rejection of a contrary version in arriving at a decision on a disputed issue of fact implies that the rejected version is false. However, we do not hold that in all such instances wherein the claimant's version is rejected, it necessarily follows that the penalty provided for in Section 594 of the Law is applicable. We recognize that interested parties may exaggerate and that testimony may be colored by the desire to present the issues in the light most favorable to the affiant.

In such instances, the issue will be disposed of on the basis of the hearing officer's evaluation of the credibility of proof, and in the absence of an affirmative showing of a calculated scheme to deceive the hearing officer, we would find no basis for an application of the provisions of Section 594 of the Law."

 

A-750-1648

Index No. 1137-2

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

January 4, 1966

INTERPRETATION SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Provoked Discharge
Violation of Contract of Hire

Appeal Board 127,442
(See A-750-1823 comments)

PROVOKED DISCHARGE; REFUSAL TO SUBMIT TO POLYGRAPH TEST

An agreement to submit to a polygraph test as a term and condition of employment is unreasonable and, therefore, a subsequent refusal to do so may not be the basis for disqualification.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective May 21, 1965, on the ground that she voluntarily left her employment without good cause by provoking her discharge is overruled.

Appealed By: Industrial Commissioner

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

Claimant, a cashier, filed for benefits effective May 24, 1965. By revised initial determination effective May 21 she was disqualified from receiving benefits because of voluntary leaving of employment without good cause.

Claimant worked for her last employer seven months to May 20. She worked 37-1/2 hours per week. Her hourly rate was $1.30.

At the time claimant was hired she was advised that employees were required to submit to periodic polygraph testing. She signed a statement whereby claimant agreed to submit to the polygraph test if and when required. Claimant and approximately 50 per cent of the employees that were working at the employer's store were selected on April 26, at random to submit to the polygraph test. Claimant declined to submit to the polygraph test. She was subsequently given an opportunity to recant. When she refused to do so she was terminated. At no time was claimant advised, either in writing or orally, by any company official that her failure to submit to this test would result in the loss of her employment. She was advised by the detective agency hired to administer the test that her failure to submit would result in the loss of her employment.

To the foregoing, we add the following findings of fact:

At no time was claimant given a guarantee as to the competency and qualifications of the individuals who would administer the polygraph testing, nor was she given any assurance as to the scope and extent of the examination to be conducted, nor was she advised of the uses to which the employer intended to put the results.

Appeal Board Opinion and Decision: After a review of the entire record herein, we find that the referee rendered a well-reasoned opinion which is supported by the evidence and the Law, and we herewith adopt the opinion of the referee as the opinion of the Board:

It has been consistently held that employees who refuse to submit to a polygraph test and are subsequently discharged were not subject to a disqualification for voluntary leaving of employment without good cause.

However, in the instant case the employer's representative, and the Industrial Commissioner vigorously assert that submission to the polygraph test was, in fact, a condition of claimant's employment and had she not originally agreed to submit to this test she would not have been hired in the first instance.

When claimant was originally hired she was advised by the employer in writing with respect to the objectives of the polygraph test. In part the employer set forth its objectives as, the objective of which (polygraph test) is not to catch thieves (we hope we have none) but to deter petty larceny on the part of employees who may unfortunately find themselves with both the need and opportunity to steal.

You will simply be assisting the company in making this minimal polygraph program an effective deterrent to employee pilferage.

All of the questions asked will boil down to one question. "Have you taken any" money or merchandise from a Twin Fair store for your own personal use for which you have not paid for and do you know of anyone who has?

We hope that even the most thoughtless employee will think twice before jeopardizing his job, his reputation and his future through any dishonest practice. A polygraph examination has never made a thief out of anyone.

As a result of the polygraph examination conducted during the latter part of April, 91 employees were examined, 86 successfully passed the examination and 5 failed to do so.

The question to be decided is simply whether or not the employer requiring claimant to take a polygraph test as a term and condition of her employment is reasonable or not.

The proponents of polygraph testing advocate that the system is a scientific and reasonable method in ascertaining whether or not the subject is, in fact, telling the truth. Those who oppose such examinations insist that the polygraph tests are not accurate and depend upon too many variable factors over which the person administering the test has no control or which the subject to be examined has no control. Notwithstanding, it is universally recognized that a polygraph test is not infallible because of the human variables involved and that the readings and results of a polygraph test are not necessarily accurate. The physical makeup of the subject examined results in this inaccuracy since it is common knowledge that various individuals may do violence to the truth without any appreciable increase in the pulse rate or the like and that although their answers may be false, they are not so recorded on the polygraph. Conversely, individuals who are timid, nervous and the like may give truthful answers and the polygraph may record them as contrary. Consequently, I must conclude that an agreement to submit to a polygraph test as a term and condition of employment is unreasonable and that claimant's failure to submit, even though she had previously agreed to do so, may not be the basis of her disqualification for benefits.

By requiring claimant to submit to a polygraph test as the terms and conditions of her employment, the employer is attempting to abridge claimant's constitutional rights against self-incrimination. While it is true that an individual may waive his rights under the State and Federal Constitution, I know of no case law or any statute, either at the federal or state level, which requires claimant to waive her rights in the future as in the instant case. Claimant's rights under the Constitution are only waived when she actually submits to the examination or answers questions concerning a subject matter which may tend to demonstrate that claimant is not taking refuge in the Fifth or Fourteenth Amendment. Further, the questions asked claimant by the employer not only concerned her conduct but also the conduct of her co-employees. The latter does nothing more than to foster co-employees to spy on one another, and is an attempt to have co-employees act in the capacity of informer on behalf of the employer.

Based on the inherent defects in polygraph testing, it is conceivable that an individual who has never violated any employer's rules may fail to pass the test. Accordingly he would be discharged and allegedly charged with an act of dishonesty which he did not, in fact, commit. We must not permit the possibility of an individual's reputation being irreparably harmed on an imperfect and unscientific method of examination.

Further, the employer's representative who appeared and testified at the hearing stated in substance that in the event an employee was examined and the polygraph test was not favorable, that employee would not be discharged until and unless the employer secured a confession from the employees. This fact opened another facet which could conceivably lead to abuse and abridge an individual's rights. Assume, and we are in no way implying that the employer does engage in the following practices, that an unfavorable reading was received. It is conceivable that the employer would subject the employee to an extensive, vigorous and rigorous examination to the point where the individual may readily confess to any conduct in order to forego any further interrogation. The employer's argument carried to its logical conclusion, that is, an unfavorable reading will not result in a loss of employment unless a confession is obtained, results in an absurd conclusion. It is difficult to reconcile the employer's position that an employee will not be discharged in the event of an unfavorable reading and unless a confession is obtained, but, nevertheless, an employee will be discharged for the failure to submit to a polygraph test. This rationale is absurd. If the employee will not be discharged for an unfavorable result, why should an employee be discharged for failing to submit to the polygraph test.

Therefore, I conclude that the employer's term and condition of employment that claimant submit to a polygraph test is unreasonable and consequently she should not have been disqualified from receiving benefits.

To the foregoing, we add the following:

The Wisconsin Industrial Commission had occasion recently to pass upon a substantially similar set of circumstances in a case involving a claimant who, although initially had signed an agreement to submit voluntarily to lie detector tests, refused to do so sometime thereafter when, for the first time, the employer asked that he submit to the lie detector test and for so refusing he was discharged. The commission held that the discharge was not for misconduct, and in its explanation stated:

Wisconsin law, and that of nearly all jurisdictions, does not permit the introduction into evidence of polygraph or "lie detector" test results under the theory that it would open the door to abuse that would not promote the cause of justice.

From this initial ruling to the present time the court has steadfastly maintained this same position and has refused to admit any such evidence to establish whether a witness is truthful or untruthful.

In the instant case the employee was not discharged for stealing and there was no allegation that he was so discharged. He was discharged solely because of his refusal to take the test. He refused to take the test because only certain workers were selected for such test.

Although the employee may have been said to have breached a condition of his employment or a company work rule and to have been discharged for such action, in considering whether such breach is misconduct connected with his employment such condition of his employment must be assessed in light of the purpose of unemployment compensation rather than solely in terms of efficient industrial relations.

The employee's action in refusing to submit to a polygraph test was not an unreasonable act on his part. His conduct, furthermore, was not an intentional and unreasonable interference with the employer's interest. For unemployment compensation purposes it would be unreasonable to expect him to submit to a polygraph test in order to keep from becoming unemployed in view of the refusal of the State supreme court to recognize the validity and probative value of such a test.

Under all of the circumstances of this case the employee' s action in breaching a condition of his employment by refusing to take a polygraph test in order to keep from becoming unemployed was not such action as would evince a wilful, intentional, and substantial disregard of the employer's interests, amounting to misconduct connected with his employment.

We feel that this reasoning applies with equal force to the case now before us. We understand that very often a case will arise where an unemployed worker in his quest for employment and in his desire to become gainfully employed may agree to certain conditions of employment set forth by the employer in order to get a job. Oftentimes, unreasonable conditions are propounded and in this fashion accepted by a needy worker who, upon realizing the unreasonableness of the conditions, will, thereafter, refuse to adhere to them. In such situations and where we find that such conditions were in fact unreasonable, we have consistently held that a claimant for benefits was provided with good cause for leaving employment under such circumstances since he was not obliged to adhere to unreasonable conditions in order to hold on to his job within the purview of the Unemployment Insurance Law.

In the instant case, the employer's requirement that claimant submit to periodic polygraph testing was unreasonable and claimant had valid and compelling reasons for refusing to accept this condition of her employment. The fact that she had initially agreed to undergo polygraph testing in order to get the job does not change the result. While it may well have been the employer's right to terminate claimant's services in the exercise of its managerial prerogatives, such termination is not accompanied by disqualifying factors within the purview of the Unemployment Insurance Law.

The initial determination of the local office is overruled. The decision of the referee is affirmed. (December 14, 1965)

 

A-750-1649

Index No. 1315-13

NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATIONSERVICES OFFICE

February 23, 1966

INTERPRETATION SERVICE - BENEFIT CLAIM
INDUSTRIAL CONTROVERSY
"In the establishment, " Question of

APPELLATE DIVISION DECISION

Matter of Abraham Cohn

Appeal Board 114,827

PARENT AND SUBSDARY CORPORATION -QUESTION OF "ESTABLIMENT"

If two financially interrelated employers with interlocking management are engaged in integrated operations on the same premises, these premises constitute the same "establishment" for the employees of both employers even though only one is involved in an industrial controversy, with the result that employees of the other employer are also subject to a suspension as provided in Section 592 if they lose their employment because of the industrial controversy.

COURT DECISION

The issue on this appeal is whether the claimant, an employee of the subsidiary corporation, who refused to cross the picket lines due to a strike of the parent corporation, is entitled to immediate benefits.

The American Sugar Company of New Jersey (hereinafter referred to as the parent) is engaged in the operation of a sugar refinery in Brooklyn, New York. The American Sugar Refining Company of New York (hereinafter referred to as the subsidiary) is a wholly owned subsidiary, engaged solely in stevedoring operations for the parent. Its longshoremen employees unload and transfer raw sugar from cargo vessels to the adjacent dock of the parent. The sugar is then taken into the parent building where it is processed. The parent and the subsidiary are interdependent and operate as one continuing, flowing process.

The employees of both corporations are members of the International Longshoremen's union but the record suggests in somewhat different relationships.

There is no serious dispute as to the facts. The employees of both corporations entered through the same gates; they registered at the same time clock located in the building of the parent; the physical act of payment of wage and salary is made by the parent; the subsidiary's personnel problems appear to be handled by the parent, which also maintains a medical office or infirmary apparently available to the employees of the subsidiary, and the billing, record keeping and other functions necessary to carry on the operations of the subsidiary are performed by the parent. As to this particular claimant, a timekeeper, his office is located in one of the buildings of the parent and the records of employment kept by him are submitted to the parent.

The parent and the subsidiary have the same officers and the parent owns all of the buildings used by both.

The Referee found that "The credible evidence establishes that there was no industrial controversy in existence involving the entity for which claimant, the timekeeper, worked. The industrial controversy was between the parent corporation, a separate legal entity, and its employees". (emphasis supplied)

Section 592 of the Labor Law provides that before the suspension clause may be invoked, it must be determined that the claimant lost his employment "because of a strike, lockout, or other industrial controversy" and that such strike or other industrial controversy occurred "in the establishment in which he was employed".

The basic reason for the Referee's decision was that the parent and subsidiary were separate legal entities and therefore, claimant's employer (the subsidiary) was not a party to the controversy between the parent corporation and its employees. While technically this finding was justified, it should not have concluded the Referee's investigation, for this is merely one of the factors which enters into the question of "establishment".

It is obvious that for business expediency, not labor-management advantage, the different corporations were organized. The subsidiary is owned, controlled, managed and operated by the parent, interdependent and integrated and fits within the framework of "establishment" as outlined by the Court of Appeals in Matter of Ferrara (Catherwood) (10 NY 2d 1) where, at page 8, after considering the principle which governed the enactment of the section and that it must be narrowly construed to carry out the broad humanitarian objectives, it was stated:

"So read, it is evident that the term 'establishment' is to be defined in geographic terms rather than in the terms of corporation organization or exercise of management powers and functions."

While the facts in that case involved only one employer (National Air Lines), the principle was applied simultaneously to several different factual situations. (Matter of Curatalo (Catherwood) 10 NY 2d 10); Matter of Wentworch (Catherwood), 10 NY 2d 13). Benefits were allowed when the industrial controversy was at another establishment. Matter of Gilmartin (Catherwood) (10 NY 2d 16) is somewhat analogous to the present facts where there were two distinct legal entities owned by the same individual but different in that the entities occupied separate premises. In Matter of Lasher(Corsi)(279 App. Div. 505), where nonparticipating employees were laid off due to a strike in the establishment, this court said at page 507:

"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."

We reversed and remitted for further findings.

In the Matter of George (Catherwood) (14 NY 2d 234), benefits were allowed where in a nationwide strike, locals settled, one by one, even though they were unemployed as the result of the strike in some local which had not settled. With, reference to the Ferrara case, the court said at page 240: "Nonparticipants within a struck establishment are subject to the same suspension of benefits as those who are engaged in the industrial controversy."

In the Matter of Carmack (Catherwood)(19 AD 2d 766; affd. 15 NY 2d 768), we affirmed the board's finding that the claimants were not entitled to benefits and the distinction which we are now asked to accept is that, in that instance, there were mere divisions of one corporation (General Motors) involved rather than, as here, separate corporations. The court did comment that "the Tarrytown divisions were not separate legal entities" but that was for the purpose of demonstrating the same factual problem we have here, that the "establishment" was so integrated and inseparable "when equated with place and situs" that the terms of corporation organization or exercise of management powers and functions did not control. Our decision was buttressed on a factual situation as, indeed, it is here. Assuming arguendo all of the causes advanced by the claimant, the factual findings made by the Referee and affirmed by the board are contrary to the principle enunciated in Ferrara. The parent-subsidiary relationship at the same establishment where management and work flow are so integrated, as the present facts reveal, cannot be treated differently than in Carmack, a stronger case for allowing benefits in that there the actual administrative management was separate. We affirmed the board's finding of fact denying benefits.

We would further note that this decision does not go contrary to our holding in Matter of Freeman (Catherwood) (9 AD 2d 1008) where the situation as to the industrial controversy was similar but the two employers were separate and had no relationship in common, one to the other, aside from the association of contractor-subcontractor on a State construction project.

While at first blush it might appear that the humanitarian objectives of the statute are not being achieved, the realism of the situation is that as to unemployment insurance there may have been one employer at the same establishment, or so the board could find.

The decisions cited are factually different, but to affirm here, and allow benefits, would be to narrow the interpretation and meaning of section 592, so that in fact and in law it would be ineffective to accomplish its purpose, to wit, that there be a waiting period "so as to avoid imputation that a strike may be financed through unemployment insurance benefits." In this type of social legislation it is difficult, at times, to adhere to a line of demarcation but any distinction should be real and not a technical formality. It is not inappropriate to note that the strike herein involved was settled within the seven-week period, the time limitation provided by the section.

The decision of the Unemployment Insurance Appeal Board should be reversed and the matter remitted for a determination and finding on the question of "establishment." (December 28, 1965)

COMMENTS

This Court decision concludes that there is a single "establishment" for the purposes of Section 592.1 in the case of two separate legal entities located at the same site which can be held united "as to unemployment insurance" by the existence of an interrelationship between the two entities and by integration of their operations. The question arises what kind of relationship and integration must exist in order that the enunciated principle applies.

1. Interrelationship

Regarding the required relationship between the employers, the Court emphasized that a contractor-subcontractor, that is, a contractual relationship would not suffice. What is required, therefore, is a structural relationship which may consist of a financial or managerial interrelationship. In the instant case, there were both.

It is hardly conceivable that there will ever be an interlocking management without a financial relationship, such as exists in cases of common ownership of the employing entities by an individual or a holding corporation; cases of parent and subsidiary corporation; cases of two subsidiaries of the same parent corporation; or other cases where there is a link connecting the two employing entities in terms of financial interest.

However, there could be such financial relationship without interlocking management. The possibility cannot be excluded that a financial relationship would suffice without identity of management, as long as there is close coordination or interdependence between the managements, which is likely to exist if they are responsible to a common master.

2. Integration

The second element, integration of operation, is demonstrated, as it was in the here reported case, by dovetailing processes in a sequence of operations or, as the Court expressed it, by the "work now." However, it would seem that integration can also take other forms. If, for instance, two employing entities produce parallel or similar goods or services which are jointly marketed to other channels, the required integration of operations may exist.

Thus, if two related companies were, for instance, to manufacture gloves, one producing leather gloves and the other fabric gloves, both being sold by one of them or by a parent corporation to wholesalers, integration of a sufficient degree is likely to exist. However, if two employing entities were to produce entirely unrelated goods which do not have a common market, for instance drugs and toys, an integration of operations can hardly exist even if both are owned by the same interest.

3. Application

It is not expected that the occasions to which the new principle applies will be numerous. Also, factors which, singularly or collectively, demonstrate interrelationship and integration of a degree, warranting the conclusion that there is one "establishment" for unemployment insurance purposes, will in most instances be self-evident. This will be manifested by circumstances such as these:

The two entities "are interdependent and operate as one continuing, flowing process"; management and work flow are closely coordinated; there is common use of equipment; functions essential for the operations of one are performed by the other.

As always, local offices may submit difficult and borderline cases through channels for assistance. It should be kept in mind that the principle can apply only if the following conditions are met:

1. Circumstances must be such that there would be a single "establishment" under generally applicable standards if two branches of the same employer were involved, instead of separate legal entities (work on the same premises).
2. The two legal entities must in some form be linked together by elements such as financial interrelationship, coordination of management or integration or operations.

 

A-750-1650

Index No. 1580D-1

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

April 7, 1966

INTERPRETATION SERVICE - BENEFIT CLAIM
MISREPRESENTATION
Penalty Period - Liquidation of

Appeal Board 129,036

REPETITION OF FALSE STATEMENT (SINGLE OFFENSE) -COMMENCING DATE OF TWO-YEAR LIMITATION

Where there is a repetition of the same false statement constituting a single offense, the two-year limitation for serving the forfeiture penalty is computed from the last date on which the offense is committed.

Appellant: The claimant appeals from the decision of the referee filed December 17, 1965, insofar as it sustains the initial determinations of the local office holding claimant ineligible to receive benefits effective various periods running from October 1, 1962, through September 13, 1964, on the ground that he was not totally unemployed; charging claimant with an overpayment of $1850 in benefits ruled to be recoverable, and holding that claimant wilfully made false statements to obtain benefits by reason of which a forfeiture of 75 effective days was imposed as a penalty in reduction of claimant's future benefit rights, as modified by the referee to hold that the period for serving the forfeiture penalty had expired. The Industrial Commissioner appeals from the referee's decision, insofar as it rules that the period for serving the forfeiture penalty for the wilful misrepresentations to obtain benefits had expired.

Findings of Fact: Claimant, a chef, on or about October 1, 1962 formed a corporation to engage in the catering business. He invested at least $1000 for fixtures and equipment. Claimant and his wife were the principal stockholders of the corporation, which commenced operations on October 1, 1962 in premises leased by claimant at a rental of $50 per month. From that time until March 1965, when claimant permitted the corporation's license from the Department of Health to expire, he performed managerial and other services in connection with the business, such as the preparation, sale and delivery of foodstuffs. Claimant considered the business a hobby because he devoted a few evenings a week thereto and was simultaneously employed by another catering firm on a full-time basis.

Following a layoff from his regular job, a few weeks prior to forming the corporation in question, claimant filed an original claim for benefits effective September 3, 1962. He thereafter filed additional claims for benefits, encompassing two successive benefit years, and received benefits in the total amount of $1850 during these years. On each of his reporting days from October 10, 1962 through September 16, 1964, claimant certified that he was totally unemployed and available for employment; and did not disclose his status as an officer and principal stockholder of the catering corporation nor his activity in connection therewith. On and after September 11, 1963, claimant completed three questionnaires specifically asking whether or not he was self-employed, or an officer or stockholder of a corporation by which he had been employed or to which he had rendered services in the preceding year and in each instance claimant answered "no" to such questions.

Appeal Board Opinion and Decision: We agree with the conclusion of the referee that claimant's status and activity as a principal stockholder and officer of the corporation created a lack of total unemployment, which rendered him ineligible to receive benefits during the periods in issue; that his certifications to total unemployment and concealment of his status in the corporation, constituted wilful misrepresentations to obtain benefits; and that the benefits he received constitute overpayments which are recoverable, because they were obtained as a result of such wilful misrepresentations.

However, we do not agree with the referee's conclusion that the period for serving the forfeiture penalty for the wilful misrepresentations to obtain benefits had expired, merely because they constituted a single offense and more than two years had elapsed since the first occasion on which claimant made the misrepresentation. We conclude that such limitation should be computed from the last date on which the offense was committed, even though it related to a single fact or status and each occasion was merely a repetition of the same false statement. Claimant on each of his reporting days up to September 16, 1964, kept alive the wilful misrepresentation to obtain benefits by consistently repeating it. The period for serving the forfeiture penalty did not expire, since it must be computed from September 16, 1964.

The initial determinations of the local office are sustained. The decision of the referee is modified accordingly and, as so modified, is affirmed. (March 21, 1966)

 

A-750-1651

Index 1325-2

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

May 31, 1966

INTERPRETATION SERVICE - BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Termination of

APPELLATE DIVISION DECISION

MATTER OF LOUIS S.ACQUISTO, et al

Appeal Board 114,688A

INDUSTRIAL CONTROVERSY SUSPENSION, TERMINATION OF; CONTINUED UNEMPLOYMENT AFTER SETTLEMENT

An industrial controversy suspension terminates when the dispute between labor and management is settled and, therefore, no longer applies to a claimant who remains unemployed thereafter even though such continued unemployment is due to circumstances causally connected with the dispute, such as a need for gradual resumption of operations.

APPELLATE DIVISION DECISION

This is an appeal by the employer from decisions of the Unemployment Insurance Appeal Board awarding the claimants unemployment benefits.

The claimants, employees of the employer's Buffalo, Tonawanda and Massena plants, went on strike on September 11, 1961 in a dispute over both national and local issues. Negotiations commenced forthwith and at the Buffalo plant a "memorandum of understanding" was signed on September 16, this document concluding the strike there, subject to ratification which was forthcoming. Operations were started up at Buffalo on September 15, but it was not until September 26 that work was fully resumed. At Tonawanda a memorandum of understanding was signed on September 24, operations were started on that date, and were fully resumed on September 28. At Massena the memorandum was signed on September 20, work was started that day and was fully resumed by September 27. A national memorandum of understanding was signed on September 20 and a full agreement was signed on September 26 with ratification coming on October 2. The sole question presented here is whether the claimants are barred by virtue of § 592 (1) of the Labor Law from receiving unemployment benefits for the period between the signing of their local memorandums and the resumption of full operations at their respective plants. The employer urges initially that despite the earlier local settlements and the fact that the plants actually resumed some operations, the industrial controversy did not terminate until September 26 when the full national agreement was signed and thus that no benefits could be accrued prior to that date.

We cannot agree. In Matter of George [Catherwood] 14 NY 2d 234, 239, 240) the Court of Appeals stated:

"The statute in question [§ 592 (1)] expressly limits such considerations to single establishments"

"The denial of benefits where unemployment results from a dispute 'in the establishment in which [the claimant] was employed' strictly limited by Matter of Ferrara [Catherwood] (1 NY 2d 1) to the geographic location of the employment regardless of what the Appellate Division correctly recognized here as a highly integrated nationwide industry. In the face of the Ferrara case it cannot be said that the several plants involved in this case constitute a single establishment. The Appellate Division avoided the establishment concept and simply regarded participation in the nationwide strike to be an adequate predicate for a holding of voluntary unemployment until all plants were again in operation. While statutes in other States may be framed differently (United Steel Workers v. Board of Review, 12 Utah 2d 136), in this State participation in a multi-establishment strike is not the criterion of an individual's right to unemployment benefits. As the Ferrara case shows, non-participants within a struck establishment are subject to the same suspension of benefits as those who are engaged in the industrial controversy. So, conversely, employees in an establishment in which no dispute presently exists, even though they were participants in the initial multi-plant controversy, are not denied benefits where their unemployment is traceable solely to a controversy in another establishment."

Thus quite clearly in dealing with the benefit rights of a given worker at a given plant, we are not concerned with what developed nationally, but only with what transpired locally.

Appellant additionally asserts that benefits are not available if unemployment is due to a necessary gradual resumption of full operations in an establishment. It is urged that since the strike caused the shutdown and only a gradual resumption of operations was possible thereafter, the claimants remained out of work "because of a strike" which was not therefore "terminated" until full operations resumed. While other jurisdictions have embraced this position (Leach v. Republic Steel Corp., 176 Ohio St. 221, 199 NE 2d 3), we find no clear holding determinative of this question in this State. Matter of George (supra); while it holds that unemployment due to industrial controversy at another establishment does not preclude benefits if the controversy at the employee's establishment is settled, does not directly answer this question. Nor is the admittedly analogous case of Matter of Vingoe [Bethlehem Steel Co.] (285 App. Div. 160) a binding precedent in the instant case since in Vingoe, unlike the present case, there was no termination of the labor controversy. As this court noted in Vingoe, the Presidential seizure, while averting an actual work stoppage, did not terminate the labor controversy.

Faced then with a question of relatively first impression in this State, we are constrained to find that benefits were properly awarded. The labor controversy here invoked was clearly terminated in the sense that the dispute between labor and management had been settled, and, therefore, the legislative purpose in denying financial assistance during the course of the controversy had been satisfied. Thus even though the unemployment involved was obviously causally connected to the labor controversy, we find no basis to hold that the labor controversy was not terminated within the meaning of § 592(1). The lack of work occasioned by the necessity for gradual resumption of production is merely an incident of the particular industry which is outside the purview of the statute and over which neither side has any control. We can find no compelling reason here "in attributing a vicarious voluntariness to the post-settlement unemployment" in view of the Court of Appeal's rejection of such a position in Matter of George (supra, at 239).

The decisions should be affirmed. (May 6, 1966)

 

A-75O-1652

Index 1205D-2
1605D-3

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

June 15, 1966

INTERPRETATION SERVICE - BENEFIT CLAIM
REFUSAL OF EMPLOYMENT
Termination of Disqualification

Appeal Board Case Number 129,914

REFUSAL DISQUALIFICATION, TERMINATION OF: BACK PAY AWARD

A back pay award for wrongful discharge, covering a period subsequent to a refusal disqualification, is "earned" remuneration for employment usable in terminating the disqualification (Section 593.2).

Referee's Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective November 15, 1965 on the ground that effective August 16, 196, claimant had been disqualified from receiving benefits on the ground that without good cause he refused employment for which he is reasonably fitted by training and experience and that claimant did not have any subsequent employment or earn at least $200 remuneration to break said disqualification is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, an assembler, was laid off immediately prior to July 5, 1965. He filed for benefits effective July 5, 1965, and was paid benefits through August 15, 1965. By an initial determination he was disqualified for refusal of employment without good cause effective August 16, 1965. Claimant contested such initial determination, but after a hearing before a referee and an appeal by claimant from the referee's decision, the Appeal Board issued its decision affirming the decision of the referee sustaining the initial determination (Appeal Board, 127,805).

Following claimant's layoff, he filed a grievance through his union, complaining that the employer had violated provisions of the collective bargaining agreement by failing to provide claimant with work and assigning such work to persons in other occupational classifications. In pursuance of the provisions of the collective bargaining agreement, the grievance proceeded to arbitration and on November 10, 1965 the grievance was sustained and an award was made holding that the employer violated the seniority provisions of the contract by having persons in other occupations perform work which should have been performed by claimant and others, and directing the employer to reimburse claimant for time lost from April 21, 1965 to the date of the award, less any monies earned or benefits received.

In pursuance of such award, claimant received his full weekly pay for all weeks during which he was in layoff status through November 10, 1965, aggregating approximately $1,500. Approximately $100 of the back pay award was allocated to claimant's loss of earnings between August 16, 1965 and November 10, 1965. Claimant was not reinstated to his job and continued to be unemployed subsequent to November 10, 1965.

On November 15, 1965 claimant refiled a claim for benefits. He made known the nature of the award made by the arbitrator and acknowledged the receipt by him of the back pay. Accordingly an initial determination was issued that claimant was not totally unemployed during the period for which he claimed benefits from July 5, 1965 through August 15, 1965, and he was charged with a recoverable overpayment of $314.50 representing the benefits paid to him for that period. Claimant did not protest that initial determination and he repaid the overpayment. However, he asserted his claim for benefits for the period beginning with November 15, 1965, but an initial determination was issued that the initial determination which disqualified him from receiving benefits for refusal of employment effective August 16, 1965 continued in effect and was not terminated by the arbitrator's award or the payment received by claimant thereunder.

Claimant maintained that the arbitrator's award and the payment received by him thereunder served to terminate the disqualification theretofore issued.

Appeal Board Opinion and Decision: The precise issue here presented is one of novel impression. However, prior court decisions determining the effect of awards of back pay on rights and liabilities under the Unemployment Insurance Law establish the principles which point to the result in this case.

In Matter of Tonra, 283 N.Y., 616 affirming without opinion 285 App. Div. 835 affirming Appeal Board 1019-39, it was held that monies paid to an employee as "back pay" constitute "wages" as defined in the Unemployment Insurance Law, and again in Matter of McCoy, 262 App. Div. 790, affirming Appeal Board 2559-40, it was held that monies paid as "back pay" pursuant to an order of the National Labor Relations Board constitute "remuneration and wages within the meaning of the Unemployment Insurance Law". If in arriving at the same conclusion in Matter of Skutnik, 268 App. Div. 357 affirming Appeal Board 9623-43, Mr. Justice Brewster, writing for the Supreme Court Appellate Division 3rd department, said:

"In going on a strike the claimants, in a sense, took the position that because their employer was guilty of unfair practices they were justified in refusing to perform the duties of their employment and in prosecuting their complaints, that, although on strike, they were entitled to their wages. In this they were upheld and the award of their 'back pay' can, I think, only be held to have been compensation to them for the time during which, but for the strike, they would have been employed in the usual sense of the word. The award of their 'back pay' bespeaks their employment during the period they were thus held to have been justified in refraining from the actual performance of work. Thus, they did not suffer 'total unemployment' and the awards made on account thereof were properly held invalid."

Recognizing that a retroactive award of back pay thus renders a claimant ineligible for those benefits which may have been paid to him pending the issuance of the award, and that unless provision were made for the repayment of those benefits, a claimant would be unjustly enriched by having received benefits for a period when he was not totally unemployed because, retroactively, he received compensation from his employer, the legislature provided in Section 597 of the Law that the Industrial Commissioner is authorized to review an initial determination within six months from a retroactive payment of remuneration and that, notwithstanding the good faith of the claimant, and the absence of any false statement or representation or wilful concealment of pertinent facts, the overpayment thus resulting is recoverable. It was in pursuance of such legislative mandate that claimant was required to and did repay the sum of $314.50 theretofore paid to him prior to the making of the arbitrator's award.

Notwithstanding the settled Law to the effect that a claimant is not totally unemployed in a period for which he receives back pay and that the monies so received by him constitute wages and remuneration within the purview of the Unemployment Insurance Law, it is here contended that Section 593.2 of the law precludes claimant from receiving unemployment insurance benefits for the period of his unemployment following the issuance of the award and for periods for which he is not entitled to any back pay. Reliance is placed upon the language of Section 593.2 which specifies that the disqualification therein provided for shall remain in effect "until he has subsequently worked in employment on not less than 3 days in each of 4 weeks or earned remuneration of at least $200." To credit such contention we would be required to conclude that the back pay award which claimant received for the period beginning with August 16, 1965 did not constitute remuneration and that claimant was not in employment on the days for which he was paid in pursuance of such award. The court precedents above cited mandate a contrary conclusion. To paraphrase the language of Mr. Justice Brewster in the Skutnik case, supra, - claimant took the position that because the employer was guilty of unfair practices, he was prevented from performing the duties of his employment, and in prosecuting his complaint, he maintained that although he performed no services he was entitled to his wages. The back pay award which claimant received can only be held to have been compensation to him for the time during which, but for the employer's wrongful actions, he would have been employed in the usual sense of the word. The award of the back pay bespeaks his employment during the period that he was thus held to have been prevented by the employer from the actual performance of work. Therefore he did not suffer total unemployment and, in essence, he continued to be employed from at least August 16 through November 10. Moreover, as was held in the Tonra and McCoy cases, supra, the back pay award constituted remuneration. In view of the finding of the arbitrator, it cannot be argued that such remuneration was other than "earned" remuneration. Accordingly, we conclude that when claimant refiled the claim in issue effective November 15, 1965, the conditions required to terminate the disqualification previously imposed had been met and the disqualification was no longer in effect.

The initial determination of the local office is overruled. The decision of the referee is affirmed. (June 2, 1966)

COMMENTS

Although the decision involves a refusal disqualification, a back pay award may also serve to terminate a disqualification for voluntary leaving, marriage, following spouse and misconduct.

 

A-750-1653

Index No. 915B-3

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

June 28, 1966

Interpretation Service - Benefit Claim
DETERMINATION OF BENEFITS
Pensions - Benefit Rate Reduction

Appeal Board Case Number 130,463

BENEFIT RATE REDUCTION - LUMP-SUM PENSION ALLOWANCES IN INSTALMENTS

If a claimant, instead of receiving a current pension, elects to be paid its present cash value in two (or more) installments, his benefit rate is subject to the reduction provided by Section 600 but the amount thereof is the weekly equivalent of the pension as it would have been payable to him in the absence of such election.

Referee's Decision: The initial determination of the local office reducing claimant's benefit rate from $55 weekly to $14 weekly on the ground that one-half of a pension received by claimant from his base-year employer had to be deducted from his benefit rate is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, an electrician, 75 years of age, filed a claim for benefits effective January 3, 1966, after he was compulsorily retired by his last employer effective December 31, 1965. Claimant, upon his retirement, became eligible to receive a pension of $73.31 monthly, under a retirement plan promulgated by the employer and to which it contributed more than 50 per cent but less than 100 per cent. Such payments were guaranteed to claimant for the duration of his life or, at least ten years so that if he were to die within ten years, the difference between the aggregate payments received by him and that which would have been paid to him during a ten-year period would become payable to his estate. Claimant had an option under the plan to receive in a lump sum the present cash value of the pension. At the time of claimant's retirement, the cash value of his pension was $8559.61. Claimant preferred to receive a lump sum rather than monthly payments. However, he desired to avoid the excessive tax liability which would result from a single lump sum payment of upwards of $8,000, and, therefore, he agreed with the employer to receive his pension in two payments; the first half to be paid in January, 1966, and the final payment in January, 1967. With the addition of the interest which would accrue on the second payment between January 1, 1966, and the date when it would become payable in 1967, the total lump sum payment was $8706.84, payable in two equal installments.

At the time claimant filed the claim here in issue, he had not yet elected to receive the lump-sum payments in lieu of monthly payments but his option was exercised during January, 1966, subsequent to the filing of the claim.

Appeal Board Opinion and Decision: The issue to be here determined is whether the payments which claimant received and is entitled to receive from the employer constitute a pension or retirement payment which requires a reduction of his benefit rate.

Section 600 of the Law enacted in 1963, provides as follows:

Effect of retirement payments. 1. Reduction of benefit rate. If a claimant retires or is retired from employment by an employer and, due to such retirement, is receiving a pension or retirement payment under a plan financed in whole or in part by such employer, such claimant's rate for four effective days otherwise applicable under subdivision seven of section five hundred ninety shall be reduced as hereinafter provided.

2. Application. The reduction shall apply only to benefits which when paid will be chargeable to the account of the employer who provided the pension or retirement benefit.

3. Amount of reduction. * * * If the pension or retirement payment is made under a plan to which the employer is not the sole contributor, the claimant's benefit rate shall be reduced by the largest number of whole dollars which is not more than one-half of the prorated weekly amount of his pension or retirement payments under such plan, but no such reduction shall apply if the claimant demonstrates that the employer contributed less than 50 per cent to the plan.

It is undisputed that the sum of $8,706.84 which the employer has undertaken to pay to the claimant is payable due to the claimant's retirement and under a plan which was financed in part by the employer to the extent of 50 per cent or more and that the account of the employer who is making such payments is chargeable with the benefits to be paid hereunder to the claimant.

The referee has, nevertheless, concluded that no reduction is to be made from claimant's benefit rate on the theory that because claimant had elected to receive lump-sum payments rather than monthly payments, the provisions of Section 600 of the Law are inapplicable. In support of his conclusion, the referee relied upon a statement contained in a Special Bulletin issued by the Interpretation Section of the Field Operations Bureau of the Division of Employment wherein the following statement appears:

If the claimant has exercised an option for the receipt of a lump payment in lieu of a current pension, no reduction applies to his benefit rate. There is no pension which he is receiving currently and there is nothing which could be prorated to the week.

The referee reasoned that if no reduction applies in an instance where a claimant receives a single lump payment, the same rule should apply where the claimant elects to have the lump payment divided into two installments.

We are not in accord with the referee's conclusion. The basis for the interpretation placed upon the statute by the Interpretation Section of the Field operations Bureau is not readily apparent. While there may be some merit to the view that if a claimant receives a single lump payment prior to the filing of his claim for benefits, he is not receiving a pension currently while he is a claimant for benefits. Nevertheless, such construction would have no application to the facts herein because the first installment of the retirement payment was made to the claimant after he had become an applicant for benefits and, hence, he did currently receive a retirement payment. Accordingly, it is unnecessary for us to decide the validity of such interpretation in other instances of a single lump-sum payment. Suffice it to say, that under the facts in the instant case, it is clear that claimant received and is entitled to receive retirement payments of the nature described in Section 600 of the Law and, therefore, a reduction of his benefit rate is required.

Although some reduction of claimant's benefit rate is mandated by the Law, we do not agree that the rate should be reduced by $41 to $14 weekly. Apparently, the Commissioner's representatives deducted from claimant's weekly benefit rate 1/52nd of 50 per cent of $4353.42, the installment of the retirement payment which claimant received in January, 1966. In our view, such computation is not authorized by the statute. The payment of $4353.42 which claimant received in January, 1966, was in no sense a retirement payment for the year 1966. Clearly, that sum represented one-half of the cash value of a retirement payment of $13 monthly for the duration of claimant's life or, at least ten years. Consequently, only 12 times $73.31 represents the portion of the payment which can be allocated to 1966. Accordingly, in our judgment, $879.72 represents the retirement payment which is allocable to 1966. On this basis, the approximate prorated weekly amount of claimant's retirement payment is $17.08. Since claimant's benefit rate must be reduced by one-half of that amount, it follows that claimant's benefit rate should be reduced by $8 weekly, from $55 to $47 weekly, and we so hold.

The initial determination of the local office is modified to the extent that claimant's benefit rate is established at $47 weekly by reducing his $55 weekly benefit rate by $8, and, as so modified, the initial determination is sustained. The decision of the referee is reversed. (June 14, 1966)

 

A-750-1654

Index No. 1690-7

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

July 1, 1966

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Pension or Retirement

Appeal Board Case Numbers UCFE-1772 and UCFE-1813A

ELECTION TO RETIRE IN ORDER NOT TO FORFEIT SUBSTANTIAL PENSION RIGHTS

A claimant who exercises an option to retire before a given date so as to receive a substantial increase in retirement annuities (8.1%), voluntarily leaves his employment with good cause only if his continuing potential employment (subject to mandatory age retirement, closing of establishment, etc.) would have been insufficient to produce an annuity comparable to that which he is receiving upon his actual retirement.

Appeal Board Decision UCFE-1772

The claimant appeals from the decision of the referee, filed March 8, 1966, sustaining the initial determination 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 December 31, 1965, on the ground that he voluntarily left his employment without good cause.

Findings of Fact: Claimant, a warehouseman, 66 years of age, accumulated 27 years of Federal service. He voluntarily retired from the United States Coast Guard, where he was last employed, effective December 3O, 1965, and the Federal agency so reported. Claimant elected to retire when he did solely to avail himself of the benefits provided by legislation enacted into law by Congress during 1965.

Congress has been engaged in a study of the adequacy of retirement benefits payable under the Civil Service Retirement Act. The study had not progressed to the point where it was deemed advisable to enact permanent legislation in 1965, to correct the situation which Congress deemed necessary in order to provide retirement benefits commensurate with the increase in the cost-of-living price indices and, therefore, during 1965, interim legislation was enacted which provided for increases in the retirement allowances to those employees who elected to retire no later than December 30, 1965. It was indicated in the reports of the Congressional committees that it is anticipated that during 1966 the various studies being made will have been completed and that Congress will then have the benefit of the research and opinions of the President's Cabinet Committee on Federal Staff Retirement Systems, concerning the full scope of Federal retirement systems, thus enabling Congress to give consideration to permanent changes in the law. However, the legislation enacted in 1965 provided that those employees eligible for retirement who elected to retire subsequent to the enactment of the law and no later than December 30, 1965, would receive an increase in the retirement annuities to which such employees would ordinarily be entitled by approximately 8.1 per cent. After the enactment of the legislation, the United States Civil Service Commission, Bureau of Retirement and Insurance, issued a release to all Federal employees advising them of the enactment of the legislation and its effect and pointing out, among other things, that if an employee who was eligible to retire on or before December 30, 1965, did not elect to voluntarily retire but continue in service thereafter, he would receive an annuity substantially equal to that which he would have received by retirement prior to December 30, 1965, if he remained in service for a specific period of time thereafter, measured in length by the number of years of service up to December 30, 1965. It was indicated in such release that an employee with 25 years of service would receive an annuity equal to the increase provided by the 1965 legislation if he continued in employment for 23 additional months and received no salary increases in the interim. The period of continuous service would be shortened to as few as eight months if, in the interim, such person received high salary increases. A person having more than 25 years of service as of December 30, 1965, but less than 30 years of service at that time, would have to remain in service for a maximum of 23 to 28 months and a minimum of 8 or 9 months.

In view of claimant's age on December 30, 1965, he would not be compelled to retire from Federal service until after the expiration of approximately four years.

Claimant did not intend to withdraw from the labor market upon his retirement but he intended to seek other employment. He filed the claim here in issue within two weeks after the effective date of his retirement, certifying his readiness, willingness and ability to accept other employment.

Appeal Board Opinion and Decision: We have repeatedly held that a worker who voluntarily retires from employment solely to avail himself of the benefits of a retirement allowance or pension is subject to disqualification from unemployment insurance benefits for having voluntarily left his employment without good cause so long as he had no intention at the time of his retirement of withdrawing from the labor market. We pointed out in those cases that the reason which prompted the leaving of employment was purely personal in nature and did not constitute good cause within the purview of the Unemployment Insurance Law (Appeal Board, 123,725; 111,121). However, because we recognize that it is sound social policy for superannuated workers to withdraw from the labor market to enjoy the benefits of a retirement allowance or pension to which they become entitled, a worker who leaves his employment to permanently withdraw from the labor market in order to enjoy his retirement allowance is provided with good cause to leave his employment (See Appeal Board, 114,895; 112,384; 109,880). We have also held that in instances where a worker would suffer a substantial financial loss or be required to forfeit substantial benefits by failing to avail himself of the right of retirement at a given time, his leaving of employment to avoid such detriment is with good cause under the Law, notwithstanding that he has no intention of withdrawing from the labor market (Appeal Board, 78,477).

On the basis of the principles enunciated in the cited cases, it follows that since claimant intended to remain in the labor market following his retirement, his leaving of employment was without good cause unless the evidence establishes that if he had failed to exercise his option to retire, he would have suffered a financial loss or would have forfeited substantial benefits. Viewing the evidence herein in this light, we are compelled to conclude that claimant would not have suffered any substantial loss or forfeiture if he failed to avail himself of the right to retire effective December 30, 1965. Claimant had the right to continue in employment for approximately four additional years. The reports of the Congressional committees gave indication of the likelihood of the enactment of permanent amendments to the Civil Service Retirement Act, which would provide benefits to those who continued in service, at least equal to those provided for employees who had elected to retire effective December 30, 1965. Moreover, even if no action were taken by Congress subsequent to 1965, and during the remainder of the time that claimant could have continued in the employ of the Federal government, he would have had full opportunity to be placed in at least the same status by completing no more than 28 additional months of service.

Under these circumstances, we are compelled to conclude that claimant's election to retire on a voluntary basis rather than to continue in employment until he reached the mandatory retirement age was a leaving of employment without good cause.

The initial determination of the local office is sustained. The decision of the referee is affirmed. (June 15, 1966)

Appeal Board Decision UCFE-1813A

The claimant applies, pursuant to Section 534 of the Law, to reopen and reconsider the decision of the Board filed March 29, 1966, (Appeal Board, UCFE-1161) affirming the decision of the referee filed March 3, 1966, sustaining the initial determination 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 December 31, 1965, on the ground that he voluntarily left his employment without good cause.

Findings of Fact: Claimant, a conveyer mechanic, accumulated more than 30 years of Federal service as of December 30, 1965, the effective date of claimant's voluntary retirement from the United States Post office where he had been employed. Claimant would have reached his 70th birthday on February 21, 1966. The Federal agency reported that claimant's employment terminated because he "retired (age and service)."

Claimant elected to retire when he did, in order to avail himself of the benefits of the legislation adopted by Congress during 1965 which entitled him to have his retirement annuities increased by approximately 8.l per cent upon condition that his retirement became effective no later than December 30, 1965. If claimant had not retired on or before December 30, 1965, he would have forfeited the right to the increased pension because he would have reached the mandatory retirement age within two months thereafter and in order to earn a pension equivalent to that which was payable to him on December 30, 1965, he would have had to remain in the Federal service for many months in excess of that which elapsed between the date of his retirement and the date on which he attained the mandatory retirement age.

The Industrial Commissioner has joined in claimant's application for reconsideration of the prior Appeal Board decision and has joined in the request that such decision be rescinded and that the decision of the referee be reversed.

Appeal Board Opinion and Decision: In our decision in Appeal Board, UCFE-1772, intended to be issued simultaneously herewith, we have set forth the principles which determine whether a leaving of employment by a Federal employee to avail himself of the benefits of the statutory provisions for increased pension provided the worker with good cause within the purview of the provisions of the Unemployment Insurance Law. Our decision in such case is incorporated herein by reference as though fully set forth herein.

Based upon the principles enunciated in the cited case, it is apparent that claimant had good cause to leave his employment because he would have suffered a substantial financial detriment if he had failed to avail himself of the right to voluntarily retire effective December 30, 1965. It was mandatory that claimant's employment would terminate within two months after the effective date of his retirement. There was no reasonable likelihood that legislation would be enacted prior to claimant's 7Oth birthday which would have resulted, in providing him with a retirement allowance equal to that which was available to him by his retirement on December 30, 1965. His age prevented him from continuing in employment for the required number of months necessary to enable him to recoup the reduction in his pension which would have come about by his continuance in service after December 30, 1965. Accordingly, claimant left his employment for compelling reasons and, therefore, his leaving must be held to have been with good cause (See Appeal Board, 78,477).

Claimant's application to reopen and reconsider the decision of the Appeal Board filed March 29, 1966 (Appeal Board, UCFE-1161) is granted and the said decision is hereby rescinded.

The initial determination of the local office is overruled. The decision of the referee is reversed. (June 15, 1966)

COMMENTS

This release further emphasizes the principle contained in Release A-750-1542, that a claimant, who exercises an option to retire in order not to forfeit substantial benefits, leaves with good cause when continuance on the job would result in a substantial financial sacrifice.

 

A-750-1655

Index No. 910-4

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

July 21, 1966

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Base year earnings and employment

Appeal Board Case Number 127,681

RE-USE FEES – FILMED TELEVISION COMMERCIALS; "REMUNERATION"

Re-use fees for television commercials filmed and paid to the claimant during his base period is "remuneration" (Section 517) which must be taken into account in calculating his average weekly wage for establishing his benefit rate.

Referee’s Decision: The initial determination of the local office denying to the claimants a higher benefit rate based on additional remuneration by way of re-use fees or residuals received by each of the claimants is sustained.

Appealed By: Claimants

Findings of Fact: Each of the claimants is a television artist and is a member of either Screen Actors Guild (hereinafter referred to as SAG) or the American Federation of Television and Radio Artists (hereinafter referred to as AFTRA). Each of the claimants performed services during his base period for the respective employers herein, in pursuance of the provisions of the collective bargaining agreements between such employers and the unions of the respective claimants. Such services consisted of performing before camera for television commercial films. The films produced as a result of such performances were used and re-used by the respective employers for commercial purposes. Each of the claimants received the specific wage fixed by union agreement for his appearance before the camera and he received additionally, the stipulated monies for the re-use of the films.

Each of the claimants actually rendered services in covered employment for a sufficient number of weeks during the respective base periods to qualify for benefits, but the benefit rate of each claimant was computed on the basis of the monies received by each of the claimants for their respective appearances before camera and the monies received by the claimants for the re-use of the films in which they appeared, were not included as part of the remuneration to be used as a basis for establishing the benefit rate of each claimant. Claimants protested and each requested a higher benefit rate resulting from the inclusion of such re-use fees.

The re-use fees, which each claimant received, were paid by the employers in pursuance of the contracts of hire between such employers and the respective claimants and in accordance with the provisions of the collective bargaining agreements. The pertinent collective bargaining agreement between SAG and the employers provides with respect to re-use fees that

"Compensation to players in commercials is based both on the services which the player renders in the production of such commercials and on the use which is made of the finished commercial in which the player has rendered services. This dual basis of compensation springs from the unique nature of the services rendered by players in commercials. The Guild contended that a player rendering services in a commercial performs, to a great extent, the duties, of a demonstrator or salesman of a particular product or service and as such tends to be identified with that particular product or service.

The producer, realizing the singular nature of this kind of service and that the re-use of a commercial may limit or curtail further employment opportunities for the players appearing in the commercial, has agreed to this unique method of compensation."

The agreement further provides,

"Session fees, use and re-use compensation and all other compensation paid to players covered by this contract for or in connection with the making and use or re-use of commercials constitute wages and as such are subject to social security, withholding, unemployment insurance taxes and disability insurance taxes. Advertising agencies or others who assume the contractual obligation to make such payments shall also make the required payments and/or report and withholding with respect to such taxes."

The collective bargaining agreement of AFTRA, contains substantially similar provisions with respect to compensation for re-use of the films and provides further.

"Session fees, use and re-use compensation and all other compensation paid to persons covered by this Code for or in connection with the making and use or re-use of commercials constitute wages and as such are subject to social security, withholding, unemployment insurance taxes and disability insurance taxes. Advertising agencies or others who assume the contractual obligation to make such payments shall also make the required payments and/or report and withholding with respect to such taxes."

There is no dispute with respect to the amounts paid to the respective claimants either for their appearances before camera or for re-use fees or residuals during the base period, nor do any of the employers herein dispute liability for contributions based on any of such monies received by claimants.

Appeal Board Opinion and Decision: The nature of re-use fees or residuals received by television or radio artists was considered by the Appeal Board and by the Appellate Division of the Supreme Court, Third Department, in Matter of Price, Appeal Board 56,753; 61,788. (Latter decision affirmed 9 AD 2d 561.) In the cited case, the issue presented as whether the claimant was entitled to be credited with a week of employment in each week when the film was re-used by the employer for commercial purposes, and for which the employer paid the artist the re-use fee. Originally, the Board held that such week constituted a week of employment as defined by the Unemployment Insurance Law, and that the claimant was entitled to be credited therewith in establishing qualification for benefits (Appeal Board 56753-56). However, upon reconsideration, the Board rescinded such decision and held that the re-use of a film previously made did not entitle the claimant to credit of a week of employment for the week in which such re-use was made (61788-57). Such reconsidered decision of the Board was affirmed by the Appellate Division of the Supreme Court, Third Department in Matter of Price, supra. In its reconsidered decision, the Board said

"The payments which she received after her actual work had ceased was manifestly part of the original contract of employment for services actually performed in connection with the filming and recording of the radio and television commercials, and was in addition to the regular fees originally received for such work."

and

"She received a sum of money in payment for a pre-existing contractual obligation assumed by the employer based upon its adherence to the 1953 – Producer – Screen Actors Guild Contract for Film Commercials."

In affirming the decision of the Board, the Court, in its opinion stated,

"These fees were in reality earned when the commercial was made, and their amount depended only on the use of the commercials thereafter, and no on any work or service to be performed by the claimant."

On the basis of the construction placed by the Division of Employment on the decision of the Board, and the affirmance thereof by the Court, it was the practice and prescribed procedure of the Division to accept from employers, contributions based on re-use fees paid by them to the various artists, and to credit the artists with the re-use fees in determining the benefit rate of those persons who became claimants for benefits, allocating such re-use fees to the day or days on which the films were actually made. This practice continued, at least until the decision of the Board in the Matter of Shopnick Appeal Board 115,424 filed in the Department of Labor, November 6, 1964. In that case, there was no issue with respect to the benefit rate of a claimant for benefits, but the issue related solely to the liability of an employer for contributions based on re-use fees which it had paid to a radio artist for the replay of a record theretofore made. Neither the contracts which constitute part of the record herein, nor other evidence of the nature submitted herein, were before the Board in the Shopnick case. No claimant, or any representative of the unions which have collective bargaining agreements with the employers in this industry were parties to the Shopnick case. In overruling the determination of the Industrial Commissioner, assessing contributions based on re-use fees paid by that employer, we held that the payments made for the re-use did not constitute remuneration as defined by the Law.

The above decision of the Board was not further appealed and it was construed by the Division of Employment to apply without exception to all instances of re-use payments and consequently, subsequent to the rendition of such decision, the Division policy excluded re-use fees from the determination of remuneration to be used as a basis for establishing a benefit rate.

In the proceeding now before the Board, the unions representing the various claimants have argued at length that the conclusion of the Board in the Shopnick case is erroneous, and that in any event, it has no application to the facts in the instant case wherein, it has been shown conclusively, that by agreement of the parties, re-use fees were specifically characterized as compensation for the services performed by the artists at the time when they appeared before camera.

The argument so advanced on behalf of the claimants, has merit. The evidence presented to the referee and to the Board in the instant case, conclusively establishes that the parties contemplated that the compensation or remuneration to be received by the artists consisted of two separate and distinct parts: namely, that portion which related to the actual appearance before the camera and that portion which stemmed from the employers’ re-use of the film made as a result of such appearance. In view of that fact, it appears that the re-use fees fall squarely within the definition of "remuneration" as set forth in Section 517 of the Law, and therefore, must be considered in computing claimants’ "average weekly wage" as prescribed by Sections 518 and 590.2 of the Law.

We deem it significant that re-use fees are taxable as compensation under the Federal Unemployment Tax Act, and that the employers in any even, are liable for the payment of such tax, even if we were to hold that such payments do not constitute remuneration under the New York Unemployment Insurance Law. It is clear that the parties to the employment contract contemplated that the re-use fees were to constitute compensation for all purposes, and there appears to be no statutory prohibition against giving effect to such intention of the parties. Accordingly, we conclude that the re-use fees received by each of the claimants herein constituted remuneration within the purview of the provisions of the Law, and that each of the claimants is entitled to be credited with such re-use fees in determining his average weekly wage, and in establishing his respective benefit rate.

To the extent that our decision herein is in conflict with the views expressed in the Matter of Shopnick, Appeal Board 115,424, we abandon the principles therein expressed.

The initial determinations are modified to the extent that the benefit rate of each claimant shall be increased by the inclusion in each of such claimant’s base period remuneration of the re-use fees received and allocating such fees to the specific days upon which the films which form the basis for such re-use fees were made, and as so modified, each of the initial determinations is sustained. The decision of the referee is modified accordingly. (June 17, 1966)

COMMENTS

This decision does not change the fact that, following the week of the actual filming, the week in which a filmed television commercial is used or re-used, or the week in which payment therefore is made, is not a "week of employment." (See Release A-750-1474). However, as herein stated such re-use fees are considered "remuneration."

The "note" appended to the rule at Index 930-35 (Release A-750-1474) stating that such fees are not remuneration should be cancelled.

 

A-750-1656

Index 1240.1

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

AUGUST 9, 1966

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Working Conditions
Fringe Benefits

Appeal Board Decisions 123,666A and 131,684A

REFUSAL - LACK OF FRINGE BENEFITS

If under conditions prevailing in a locality combinations of valuable fringe benefits, such as hospital-medical insurance, retirement plan, and vacation-holiday pay, are provided by employers for an occupation, refusal of employment in that occupation is with good cause if such fringe benefits are not furnished in the offered job, without their absence being compensated by higher wages, since lack of such combination of fringe benefits renders the conditions offered to the claimant substantially less favorable than those prevailing for similar work in the locality.

Appeal Board decision 123,666A

The claimant applies, pursuant to the provisions of Section 534 of the Law, to reopen and reconsider the decision of the Board filed April 22, 1965 (Appeal Board, 121,973) affirming the decision of the referee filed February 24, 1964, sustaining the initial determination of the local office disqualifying claimant from receiving benefits effective December 23, 1964, on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience.

Findings of Fact: Claimant, who resides at Binghamton, was employed for approximately seven years as a keypunch operator until July 16, 1964, when she left her employment after obtaining a maternity leave of absence. Her terminal wage rate was $101.20 a week. Additionally, the employer provided substantial fringe benefits including, but not limited to, hospital and medical insurance, retirement plan, paid vacation and holidays. Her child was born on October 9, 1964. On December 9, 1964, claimant was advised by her doctor that she was physically capable of resuming her employment. However, during her leave of absence, her employer moved its entire keypunch system out of the area with the result that claimant could not resume her former employment.

Claimant filed for benefits on December 9, 1964. On December 23, 1964, claimant was offered a temporary job at $2.00 an hour from 8:00 a.m. to 5:00 p.m., five days a week. It was expected that the job would last approximately six to eight weeks. Claimant refused the offer stating that she desired permanent employment. The prospective employer is in the business of providing its clients with office personnel and if claimant had accepted the offer, she would have been assigned to perform services in the establishment of one or more clients of the employer.

Evidence received at the Board hearing established that under the conditions which prevail in the Binghamton area for the employment of keypunch operators, employers provide the employees in that occupation with fringe benefits similar to those provided by claimant's last employer. However, no fringe benefits of such nature would have been provided by the employer involved in the offer of December 23.

The prevailing wage for keypunch operators in the area is $2.00 per hour but the value of the fringe benefits, which are usually provided, is substantial.

Appeal Board Opinion and Decision: The facts in this case require us to decide whether the lack of fringe benefits resulted in an offer of a job under conditions which were substantially less favorable to claimant than those which prevail for similar work in the locality.

Section 593.2(d) of the Law provides that

No refusal to accept employment shall be deemed without good cause nor shall it disqualify any claimant otherwise eligible to receive benefits if
(d) the wages or compensation or hours or conditions offered are substantially less favorable to the claimant than those prevailing for similar work in the locality, or are such as tend to depress wages or working conditions.

The language of the foregoing statute signifies recognition of the fact that the cash wages alone are not determinative of the adequacy of the terms of offered employment. The words "or compensation or hours or conditions offered" must be given effect and consequently all of the attributes of the offered job must be considered and compared with similar employment in the locality to determine whether the differences, if any, result in conditions which are substantially less favorable to claimant than those prevailing for similar work in the locality.

The proof here adduced has established that the prospective employer involved in the job offer at issue would not have provided claimant with any of the usual fringe benefits provided by employers for similar work in the locality. Thus, claimant would not have received, as a condition of the employment, premium free (to her) hospital and medical insurance, the right to participate in a retirement plan, the right to receive wage payments for legal holidays or the right to accrue vacation credit. Since these various benefits are provided generally by employers in the locality and employees therefore have acquired the right to expect such benefits as an incident to their employment, it can hardly be said that such benefits are merely a gratuity tendered by some employers. Rather, such benefits have become vital and substantial conditions of employment and the lack thereof constitutes a variance from the conditions of employment prevailing for similar work in the locality. Therefore, we must evaluate those benefits to determine whether the variance is substantial to the claimant. In the light of the fact that the cash wage offered was no greater than the case wage which prevails for similar work in the locality, we conclude that the deprivation of the various fringe benefits results in a substantially less favorable condition of employment. Obviously, if claimant were not paid for legal holidays and if she were required to finance the cost of hospital and medical insurance and of a retirement plan, she would be incurring substantial expense not required of persons similarly employed who enjoy such protection and benefits. Accordingly, we conclude that the conditions offered to claimant were substantially less favorable to claimant than those prevailing for similar work in the locality (see Appeal Board, 122,753).

We do not subscribe to the view that because the offer was for temporary rather than permanent work, the statutory standards herein above discussed have no application. The Law does not authorize any such distinction. (See Matter of Lehrman, 281 App. Div. 936, affirming Appeal Board, 30, 832)). There is no proof which would establish that the conditions of employment prevailing in the locality for temporary jobs are different from those prevailing for permanent work.

We therefore conclude that claimant did not, without good cause, refuse an offer of employment.

Claimant's application to reopen and reconsider the decision of the Board filed April 22, 1965 (Appeal Board, 121,973), is granted and the said decision is hereby rescinded. The initial determination of the local office is overruled. The decision of the referee is reversed. (September 16, 1965)

Note: The Industrial Commissioner's application to reopen the above decision was granted by the Board. The decision was adhered to as supplemented by the following additional facts:

"The prevailing wage pay for keypunch operators in the locality involved was the same for both permanent and temporary operators. The basic hourly rate for such operators, excluding the worth of fringe benefits, was $2.06 rather than the $2.00 previously indicated in said decision." (A.B. 127,136A)

Appeal Board Decision 131,684A

The Industrial Commissioner having made further application to the Board to reopen and reconsider the decision of the Board fled respectively on September 16, 1965 (Appeal Board 123,666A) and January 28, 1966 (Appeal Board 127,136A), and

The Board having considered the written statements submitted on behalf of the Industrial Commissioner and on behalf of the claimant in connection with such application and having reviewed the entire record herein and; it appearing that the cash wages offered to the claimant compare favorably with the wages prevailing for similar work in the locality but that fringe benefits of a substantial nature are provided to persons employed in similar occupations in the locality for a period of three months or more and that no fringe benefits would have been provided in view of the fact that such employment was for a temporary period only, so that claimant would not have had the opportunity to continue in the employment for a period of time equal to that when other workers similarly employed commence to receive fringe benefits, and a decision having been rendered by the Appellate Division of the Supreme Court, 3^rd Department, on May 3, 1966, in Matter of Bertram Asserson, wherein the Court reversed the decision of the Board (Appeal Board 111,278A) and held that the lack of fringe benefits in instances where such benefits prevailed for similar work provides a claimant with good case to refuse an offer or employment; and,

It appearing to the Board that on the basis of the principle enunciated in Matter of Asserson, supra, the lack of fringe benefits in the job offered to claimant provided her with good cause to refuse the offer of employment here at issue, it is, therefore,

ORDERED that the application of the Industrial Commissioner to reopen and reconsider the decision of the Board filed on September 16, 1965 (Appeal Board 123,666A) and on January 28, 1966 (Appeal Board 127,136) is granted, but said decisions are hereby adhered to. (June 15, 1966)

COMMENTS

Recognition of fringe benefits, so that their lack may constitute good cause for a job refusal, is a novel principle. Decisions in the past were to the opposite effect. The here-reported decision is, therefore, an important new precedent.

However, the application of this principle will be limited because fringe benefits will fall within generally prevailing conditions for the majority of job offers.

When the issue presents itself it must be resolved in a manner similar to that which applies to prevailing wages. The types of generally provided--"prevailing"--fringe benefits which are afforded to employees in claimant's occupation must be evaluated and it must then be determined whether their absence in the offered employment makes its condition substantially less favorable.

Whether such substantiality exists is a matter of judgment. No positive and all-inclusive standards can be furnished. However, the following may afford some assistance.

1. The here-reported case involved three types of significant fringe benefits collectively, all of which were absent in the offered job, and the resulting differential was held to be substantial.
2. If wages are offered which are above those which prevail,this may be a compensating factor so that the offered conditions in their entirety are not "less favorable" in the last analysis. Contact ASO interpretation and Central Service for assistance in analyzing such conditions.

 

A-750-1657

Index No. 1275A-6

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

August 10, 1966

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

Referee Case Number 544-590-66

REFUSAL: OFFERED EMPLOYMENT NOT COMMENSURATE WITH NEWLY ACQUIRED TRAINING

Refusal by a claimant of employment in his former occupation because of his desire to utilize skills newly acquired in a training program under the Manpower Development and Training Act is with good cause when the claimant was not afforded a reasonable length of time to secure the work for which so trained.

Referee’s Findings of Fact: A hearing was held at which claimant appeared and testified. A statement was submitted on behalf of the Industrial Commissioner in lieu of an appearance.

Claimant, classified as a sewing-machine operator and entry stenographer, by initial determinations, was disqualified effective April 13, 1966, because of refusal of employment without good cause and was ruled ineligible effective April 19 to 24 because of failure to comply with reporting requirements.

Claimant was employed from 1956 until November 1964, as a sewing-machine operator on jackets. She was paid on a piecework basis. She then enrolled in a training course under the Manpower Development and Training Act of 1962. She studied to be a secretary. After an interruption because of family sickness, claimant re-entered and completed it in November 1965. She was then promptly employed as a secretary from about Thanksgiving 1965 until April 6, 1966, at $350 a month. She was released following management changes. She filed an additional claim for benefits. On April 12, when claimant reported to the insurance office, she was referred to the former employer for whom she had worked as a sewing-machine operator, to report on April 13. Claimant declined to report to that employer because she feared that she would lose her new secretarial skills, and because she had enrolled in the training course for the purpose of improving her occupational sills and obtaining more steady employment. During the entire statutory week ending April 24, claimant sought work diligently and had a number of personal interviews with employers. She did not report to the insurance office on Tuesday, April 19 because she had been told she would be disqualified for failing to report to her former employer and believed that it would be best for her to continue to seek employment, rather than to visit the insurance office to report. On April 22 the employment service referred claimant to a job with an insurance company. She was hired and has been at work since April 26 earning $370 a month as a stenographer. She did not certify by mail to the statutory week ending April 24.

Referee’s Opinion and Decision: It is ordinarily true that a claimant for unemployment insurance benefits may not insist upon a job which would make use of her best skills, or upon one which she prefers, rather than another job for which she is reasonably fitted by training and experience. Nevertheless, claimant’s contention is that to require her promptly to return to work as a sewing-machine operator after the loss of her employment as a secretary would be a waste of public funds. That contention has substantial merit. The Federal Government provides substantial and intensive training under the Manpower Development Training Act to improve the skills of those enrolled in training courses. The provision for disqualification from benefits for refusal of employment under Section 593, subdivision 2, of the Unemployment Insurance Law, cannot be regarded in isolation. The Manpower Development and Training Act and the New York Unemployment Insurance Law must be regarded in a single context, as if they were an entity. It may very well be that if claimant were unable to obtain work as a secretary after an extended period of unemployment, she could reasonably be required to accept work in her former occupation. In this instance, however, where she had been unemployed only a few days, to disqualify her for refusing work as a sewing-machine operator would, in effect, frustrate the entire purpose and intent of the Manpower Development and Training Act. It is highly significant that claimant promptly obtained another job as a stenographer as a consequence of action by the employment office.

Accordingly, it is held that her refusal in this instance was with good cause. Additionally, claimant was entitled to a reasonable period of time to attempt to locate a job comparable to her last job.

Claimant was obligated to comply with reporting requirement, notwithstanding her obviously sincere job search. The mere fact that she was seeking work was not a valid excuse for failing to report to the insurance office.

The initial determination of refusal of employment without good cause is overruled. The initial determination of failure to comply with reporting requirements is sustained. (June 13, 1966)

COMMENTS

This decision reflects an exception to the general rule under which a refusal of employment because of a desire for different employment is without good cause if the offered job is in claimant’s usual occupation or is one for which he is fitted by training and experience. (See Matter of Delgado; A-750-1015) It stands for the new principle that special consideration should be given to skills acquired in a government sponsored vocational training course, which is financed from public funds. The reasons are well stated in the decision, and similar considerations will apply to other training courses under governmental auspices, comparable to MDTA training. Training under the new New York State Manpower Training Act would be an illustration. Although in the instant case the claimant had actually secured a previous job, and had already acquired same work experience, in the new occupation, the same result should obtain if that had not been the case.

 

A-750-1659

Index No. 1460A-9

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

August 12, 1966

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Vacation Pay

Appeal Board Case Number 132,006

DESIGNATED VACATION PERIOD, QUESTION OF

A statement (in the Employer’s Manual) informing the workers that, in the event of separation from employment, "you are paid any unused earned vacation credit" is not the designation of a vacation period as required by Section 591.3 of the U.I. Law.

Appeal Board Decision

The Industrial Commissioner appeals from the decision of the referee filed April 29, 1966, insofar as it modifies the initial determination of the local office holding claimant eligible to receive benefits effective February 7, 1966 without disqualifying conditions to be effective March 7, 1966 on the ground that claimant was ineligible to receive benefits during the period February 6 through March 6, 1966 in that such period was a paid vacation period for which no benefits are to be paid.

Findings of Fact: Claimant, a production development engineer, worked for the employer, an automobile manufacturer, between September 19, 1955 and January 31, 1966 at $234.31 for a 40-hour, five day week. He was compulsorily retired on January 31, 1966 and received $997.15 as accrued vacation pay for the period in issue.

In the summer of 1965, the employer issued an Employer’s Manual where it set out its policy concerning vacation periods and vacation allowances to persons regularly employed and upon termination or retirement. The manual, insofar as pertinent, contained the following provisions:

"Your Accrued Vacation credit is based on your length of service and number of months you work during the current calendar year. Vacation credit is accrued in accordance with the following schedule. It becomes earned vacation credit on December 31 of the year in which the vacation credit was accrued.

*****

"6. If you are permanently laid off, retire, or take a military leave, you are paid any unused earned vacation credit accrued in the current calendar year."

The Employer’s Manual does not designate any period of time for accrued vacation paid to retirees.

Claimant had accrued vacation credit of 17½ days for the calendar year of 1965 plus 1¾ days for the month of January 1966, a total of 19¼ days.

Opinion: Section 591.3 of the Unemployment Insurance Law provides:

"3. Vacation period or holiday. (a) no benefits shall be payable to a claimant for any day during a paid vacation period, or for a paid holiday, nor shall any such day be considered a day of total unemployment under section five hundred twenty-two of this article.

"(b) The term "vacation period" as used in this subdivision, means the time designated for vacation purposes in accordance with 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 statutory tests require that a designation of a specific vacation period must be made prior to the vacation period. In this case there was no such designation of a vacation period. Therefore, the period involved therein was not a vacation period within the meaning of the Law, which would preclude claimant from receiving benefits, which he was otherwise entitled to receive.

Decision: The initial determination of the local office is sustained. The decision of the referee, insofar as appealed from is reversed. (August 1, 1966)

 

A-750-1662

Index No. 785.1

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

December 21, 1966

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Transportation Facilities

Appeal Board Case Number 134,758

AVAILABILITY; LACK OF TRANSPORTATION FACILITIES

A claimant who has lost transportation facilities to his former place of work is not available for employment when he has no means of commuting to areas where employment opportunities exist.

Referee’s Decision: The initial determination of the local office holding claimant eligible to receive benefits effective May 16, 1966, without disqualifying conditions is overruled. The employer’s objections to the payment of benefits to claimant, on the ground that she is disqualified from receiving benefits effective May 14, 1966, because she voluntarily left her employment without good cause is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a bookkeeper, worked for her last employer for about seven months until May 13, at a weekly wage of $110 per week. She resides in West Seneca and worked in Hamburg. When claimant was hired, no question arose with respect to her transportation to and from her place of work. Until about January, claimant drove the family automobile. However, in about early January, the use of the family automobile was no longer available to her because her husband’s place of employment was transferred and it was necessary for him to use the automobile. There are no public transportation facilities between claimant’s home and her place of employment with the result that when she advised the employer of her inability to travel in the family car, the employer agreed to permit claimant to use a company car temporarily until she could arrange for private transportation. Claimant had made no arrangements for other transportation and after the claimant had used the company vehicle for approximately three or four months, the employer advised claimant in May that the use of that car would be withdrawn from claimant and that it would be necessary for her to arrange for her own means of transportation. Claimant had decided that she would not purchase another motor vehicle and since without it there were no means of transportation available to her, she resigned effective May 13, 1966.

There are no public transportation facilities from claimant’s home which would enable her to commute to any area offering reasonable opportunities for employment. Following the termination of her employment and at least up to August 23, 1966, the date of the referee’s hearing, claimant could not accept employment unless the employer would provide her with a company vehicle to enable her to commute between her home and such place of employment. Because of her transportation difficulties, claimant made limited efforts to obtain employment applying at only a few establishments where she indicated to them that she could accept employment only if the prospective employer were to provide her with a means of private transportation.

Upon the filing of her claim for benefits effective May 16, 1966, the local office ruled that claimant was eligible for benefits without disqualifying conditions. The employer protested the payment of benefits to claimant and the referee overruled the local office initial determination and held, in effect, that claimant voluntarily left her employment without good cause.

Appeal Board Opinion and Decision: While we find that there is merit to the objections of the employer to the payment of benefits to claimant, we are not in accord with the referee that claimant’s ineligibility stems from a voluntary leaving of employment without good cause. Rather we conclude that although claimant left her employment with good cause, she nevertheless has been unavailable for employment throughout the period at issue because her lack of transportation facilities forecloses her from all reasonable opportunity of obtaining employment.

Claimant was provided with good cause to leave her employment since it is undisputed that when the employer withdrew the automobile which had been loaned to her, she was unable to commute between her home and place of employment and had no alternative under those circumstances, but to leave her job. In a similar case (Matter of Posselt, 3 A.D. 2d 881, affirming Appeal Board, 56,265) the Court stated:

Appellant rightfully contends that this was not a voluntary quit in the narrow sense that there was no reason at all for her unemployment.

Nevertheless, since the termination of claimant’s employment was necessitated by the lack of transportation facilities, she must establish her ability to commute between her home and areas where employment opportunities exist in order to establish her availability for employment, a condition precedent to establish eligibility for benefits under the Law. As the Court pointed out in the Posselt Case, supra,:

The lack of transportation to enable claimant to report for work which was available, was due to her own personal circumstances, her lack of employment was not due to economic circumstances or the inability of employers to provide work, as contemplated by the spirit and purpose of the Unemployment Insurance Law. * * * There must not only be a willingness, but the willingness and ability to present oneself at the place of work and actually doing so.

In the instant case, the record clearly establishes that claimant’s lack of transportation precluded her from procuring work since she lacked the means of commuting between her home and the places where such work opportunities are available. Accordingly, we conclude that although claimant voluntarily left her employment with good cause, nevertheless she is ineligible for benefits from the date of the filing of her clam through at least August 23, 1966, the date of the referee’s hearing on the ground that she was not available for employment. [Also see Matter of Leon, (25 A.D. 2d 925) reversing Appeal Board, 125, 842].

The objections of the employer are sustained to the extent that it is held that claimant was ineligible because of unavailability effective May 16 through August 23, 1966.

The initial determination of the local office holding that claimant was eligible for benefits without disqualifying conditions, is overruled. The decision of the referee is modified accordingly, and as so modified, is affirmed. (December 9, 1966)

COMMENTS

This case reflects a new principle which is not fully in accord with interpretations heretofore applied.

It means, generally, that a claimant in order to be held available for employment must be able to commute between his place of residence and locations within his labor market area where employment opportunities exist, even though no recent removal to that place of residence is involved and even though the claimant did commute to a job in the area until he lost his transportation facilities.

 

A-750-1663

Index No. 905-4

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

January 4, 1967

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Eligibility, Question of

MATTER OF WILLIAM STEINBERG

Appeal Board No. 116,197

ELIGIBILITY OF CORPORATE OFFICER – CONTRIBUTION DELINQUENCIES

Benefits due to a claimant who was an officer of a corporation may NOT be held in abeyance because the corporation is delinquent in the payment of contributions.

APPELLATE DIVISION DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board which sustained the determination of the Industrial Commissioner that claimant’s benefits be held in abeyance because the corporate employer of which claimant was president is delinquent in the payment of unemployment insurance contributions.

The claimant was the president and a 25% stockholder of the employer, Rambler Rose Corporation, and had been so employed for approximately 44 years when the corporation made an assignment for benefit of creditors on May 25, 1964. The corporation was delinquent in the payment of unemployment insurance contributions for the third and fourth quarters of 1963 in the amount of $761.56. Pursuant to a deferred payment agreement, this delinquency was reduced to $526.45 plus a $10 penalty, at the time of the assignment for benefit of creditors and resulting termination of claimant’s employment.

The determination to hold the claimant’s benefits in abeyance, pending payment of the delinquent contributions, was based upon the equitable theory "that claimants who were in control of a corporation should not be permitted to profit by their failure to comply with the law which requires the payment of contributions on remuneration paid to employees."

The respondent does not claim that the claimant is disqualified for benefits, or is it claimed that he is not a covered employee. The respondent supports its decision on the basis that a corporation can only act through its directors and officers and that the criminal sanctions of section 631 of the Labor Law imposes a personal duty to make certain that unemployment insurance contributions are paid. Section 631 which provides that the officers of a corporation are guilty of a misdemeanor, if the corporation is convicted of a violation under Title 2 of the Labor Law, must be read in conjunction with section 633, which provides that "any person who wilfully refuses or fails to pay a contribution to the fund, shall be guilty of a misdemeanor." The respondent, however, does not assert that there exists a wilful failure or refusal to pay contributions in this case, and the record indicates that the failure to pay was not wilful. There is also no provision in the Labor Law which imposes a personal liability upon the officers of a corporation for the payment of contributions, unless it can be said that such responsibility is imposed by implication by section 631 and 633 in the event of a wilful refusal or failure to pay.

The determination of the respondent must then rest upon his assertion that the claimant paid himself his full salary of $150 per week up to the date of the assignment for benefit of creditors, implying by his assertion, that the claimant should have deducted from his salary the amount of the delinquent contributions. This position, however, is untenable in the face of section 635, which makes it a misdemeanor for an employer to make a deduction from the remuneration of any employee to pay a portion of the contribution.

The respondent also argues that the policy of the State requires the establishment of sufficient reserves for the payment of benefits, and that the claimant should not be permitted to shield himself behind his corporate title.

This argument is refuted by section 635 and also by section 574, which provides for the priority of contributions in the even of insolvency or bankruptcy.

The Legislature, in enacting section 574, must be presumed to have had in mind situations exactly like instant case, yet it failed to provide for personal responsibility of corporate officers in the event that contributions were not collectible despite the priority provisions of this section of the law.

Decision reversed, and claim remitted for further proceedings consistent herewith, with costs to claimant. (December 15, 1966)

 

A-750-1669

Index No. 1240-2

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

March 28, 1967

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Working Conditions
Fringe Benefits

Appeal Board Case Number 111,278A

REFUSAL OF EMPLOYMENT – LACK OF FRINGE BENEFITS

If the content, that is, the value of the fringe benefits of offered employment is markedly inferior to that prevailing for similar work, good cause for refusal may exist, even if the types of fringe benefits involved are identical.

Appeal Board Decision

The claimant herein having appealed to the Appellate Division of the Supreme Court, Third Department, from a decision of the Board filed in the Department of Labor on February 1, 1965, reopening, reconsidering and rescinding the decision of the Board filed January 22, 1964 (Appeal Board, 109,069) affirming the decision of the referee filed November 6, 1963, sustaining the initial determination of the local office disqualifying claimant from receiving benefits, effective July 25, 1963 on the ground that without good cause, he refused employment for which he was reasonably fitted by training and experience and again affirming the decision of the referee, and a decision having been rendered by the Appellate Division of the Supreme Court, third Department, on May 3, 1966 (25 A.D. 2d 895) reversing the aforesaid decision of the Appeal Board and remitting the matter to the Board for further proceedings not inconsistent therewith, and on order to that effect having been duly entered at a term of the Appellate Division of the Supreme Court in and for the Third Judicial Department on May 6, 1966, and

A further hearing having been before the Board in pursuance of such decision and order of the Appellate Division of the Supreme Court, Third Department, upon due notice to all of the parties and at which all parties were accorded a full opportunity to be heard and at which representatives of an attorneys for claimant and for his union and a representative of a witness for the Industrial Commissioner with respect to the issues herein, now

Based on the record and testimony in this case and on all of the proceedings heretofore and herein, the Board makes the following

Findings of Fact: Claimant is a seaman who holds the rating of Third Assistant Marine Engineer in the merchant service. He has been a members of the Marine Engineers Beneficial Association for more than 15 years. On July 25, 1963, while unemployed and an applicant for unemployment insurance benefits, he was offered employment in his rating aboard a vessel of the Military Sea Transport Service, a branch of the United States Navy. The wage offered for such employment was $600 per month, which is the basic monetary payment for claimant’s rating that is paid by all employers of such marine personnel. Claimant refused the offer of employment aboard the government ship because of the variances, which exist in other aspects between government employment and private employment.

Other than basic wages paid and the fact that claimant’s duties aboard ship would be the same, regardless of who was the employer, there are many differences which exist in the conditions under which marine personnel are employed, as between the Federal Government as the employer and private ship owners and operators as the employers: thus,

A – Pension – In private employment, claimant could retire at any age provided he had 20 years of service. He would not contribute anything to the cost of his pension, which would amount to $300 per month. In addition, when he reached age 65, based on such private employment, he could also receive Social Security benefits of approximately $168 per month, thus making him the recipient of a retirement income of approximately $468 per month, for which he would only have contributed whatever was required by the Social Security Act for that portion of such retirement income. In government employment, claimant could not retire until he reached the age of 60 and he had to have at least 30 years of government service. He would have to contribute at least 6½ percent of his pay to assist in financing his government pension, which would amount to $342 per month. He would be ineligible to receive Social Security benefits based on such government employment. In order to receive Social Security, he would have to have sufficient other private employment in order to qualify thereunder.

B – Welfare Plans – In private employment, claimant would be covered by a Health, Accident and Hospitalization policy, financed entirely by the employer and a $5000 Life Insurance policy, also financed entirely the employer. In government employment, for similar coverages, claimant would have to pay a premium of approximately $22 per month for the Health, Accident and Hospitalization policy and two-thirds of the premium of the Life Insurance policy.

C – Vacation – In private employment, claimant would receive 60 days of paid vacation each year and one day of "personal business leave" at the close of each voyage. In government employment, he would receive from 13 to 26 days of paid vacation, each year, depending on his length of service with the government. The government has no provision for "personal business leave" at the close of a voyage.

D – Other Significant Differences

1. Private employment does not require uniforms to be worn; government employment would require claimant to expend approximately $200 per year for uniforms.
2. If claimant took ill while on duty for a private employer and required transportation home or to a hospital, such transportation would be in First Class accommodations: if this occurred to claimant while in government employment such transportation would be by any available transportation, regardless of class.
3. If claimant were to be wrongfully suspended from duty or discharged while in private employment and, as a result of a grievance proceeding were reinstated in his position, he would receive full back pay for the period between his wrongful suspension or discharge and his reinstatement to duty; in government employment, there is no such back pay award.
4. In addition to the above, there are various other minor differences between the conditions of private employment and government employment which need not be enumerated.

Opinion: In our prior decision, we concerned ourselves primarily with the fact that the duties of claimant aboard either a private ship or a government ship would be precisely the same and his base pay for his services would also be the same. We did not consider that the differences in the fringe benefits available in the two employments were significantly different so as to make government employment less favorable to claimant than private employment. On the basis of the evidence now before the Board, we conclude that such differences do exist between the two employments as to make the government employment substantially less favorable to claimant than would be private employment.

The industrial Commissioner urges that the instant case is governed by the principles expressed in Matter of Matyevich, 15 A.D. 2d 387, affirming Appeal Board, UCFE-284 and Matter of Shotkin, 10 A.D. 2d 738, reversing Appeal Board, 63,045. We do not find that these cases are in point. They were both concerned with the question of what is the prevailing wage and did not consider the other conditions of the employment which section 593.2(d) of the Law, require to be considered as factors in the question of whether a refusal of employment shall be deemed to be with good cause or not. In the instant case, the evidence establishes that there are such substantial differences present in these other factors of the two employments as to have given claimant good cause to refuse the offer of employment aboard the government ship, regardless of the fact that basically the duties and base pay were the same.

Decision: The initial determination of the local office is overruled. The decision of the referee is reversed. (January 3, 1967)

COMMENTS

1. Recognition of fringe benefits, so that their lack or their content may constitute good cause for a job refusal, is a novel principle. Decisions in the past were to the opposite effect. However, the application of this principle will be limited because fringe benefits for the majority of job offers will fall within generally prevailing conditions. As a rule, the issue will present itself only if the same manner as the issue of prevailing wages, that is, when the claimant comes forward with the assertion that the absence or nature of the fringe benefits is his reason for refusing the job.

When the issue presents itself it must be resolved in a manner similar to that which applies to prevailing wages. The types of fringe benefits generally afforded in claimant’s occupation, and their specific characteristics, must be evaluated, and it must then be determined whether their absence or their differences make the condition in the offered employment substantially less favorable.

2. AB# 123,666A & 131,684A involved three types of significant fringe benefits prevailing for the occupation, all of which were absent in the offered job, and the resulting differential was held to be substantial. If the differential is only one, or perhaps even two types, substantiality could possibly be lacking. The cumulative effect, considering specific types and differences within each such type, is the controlling factor.
3. In the case here reported, government employment was held less favorable than private employment, not because of the lack of specific types of "fringe" benefits, but because of the differences within the various types. Each of the plans for pension, health services, and vacation entailed in private employment was markedly more favorable (including cost to employee, degree and duration of protection, etc.) than in the plans offered by government employment. In addition, there were other significant more favorable conditions in private employment, leading to the conclusion that the cumulative effect made government employment substantially less favorable than private employment. The latter, because of its volume, established the "prevailing" conditions.
4. Whether substantiality exists is a matter of sound judgment. No positive and all-inclusive standards can be furnished. However, the overall cumulative effect of the fringe benefits must be evaluated in conjunction with other conditions in determining whether offered employment is substantially less favorable. Thus, if wages are offered which are above those which prevail, this may be a compensating factor so that the offered conditions in their entirety are not "less favorable" in the last analysis. Also, if the content of some of the fringe benefits is markedly superior to the "prevailing" content, this may overcome the absence of or inferiority in some other type of fringe benefits.

 

A-750-1670

Index No. 855-1

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

April 3, 1967

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS & REPORTING
Predating

Appeal Board Case Number 136,139

FAILURE TO FILE; BELIEF OF INELIGIBILITY – STRIKE

Failure to file a claim is not excused where claimant failed to do so since he believed that he was not eligible because of loss of employment due to strike, even though that belief was based on determinations originally made in the cases of other claimants who did file claims and who were ultimately allowed benefits upon a revision of the original determinations.

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective April 25 through June 5, 1966, on the ground that he failed to comply with registration requirements is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a printer, was employed for about 17 years by a publisher of a New York City newspaper. He is a member of a typographical union. The publisher, by which claimant was employed, ceased publication, intending to merge soon thereafter with other metropolitan newspapers. Claimant became unemployed concurrently with the cessation of operations by his employer on or about April 24, 1966. He was never recalled to work thereafter and consequently he has not been rehired by his former employer or its successor. It was determined initially by the local offices involved that there was a loss of employment due to an industrial controversy by the employees of the papers intended to be merged.

Claimant made no claim for benefits until June 8, 1966. His claim was accepted effective on the day of filing and thereafter claimant received twelve benefit checks through the period ending September 11, 1966. Claimant, however, requested that his claim be pre-dated to April 25, 1966 and that he be allowed benefits from April 25 through June 5. His request was denied and he was ruled ineligible for benefits for the period from April 25 through June 5, 1966, on the ground that he had failed to comply with registration requirements.

Other persons employed by the newspaper publishers which had ceased operations pending the commencement of operations by the proposed merged employer, filed for benefits soon after their employment was terminated and the local offices where such claims had been filed issued initial determinations suspending the benefit rights for a period of seven weeks of all of those claimants, who, it had concluded, had lost their employment as a result of the existence of an industrial controversy in the establishment in which they were employed. In those instances in which such initial determinations were issued and the affected claimants made no protest to the initial determinations, they were instructed, in accordance with the procedure applicable in such instances, to refrain from again reporting to the respective local offices until the expiration of the suspension period. Several months later, the representatives of the Industrial Commissioner reviewed the circumstances under which those claimants who had filed for benefits had lost their employment and on the basis of such review, it was concluded that all of those persons who were not rehired by the merged firm after the differences between management and labor were resolved, had not initially lost their employment due to the existence of an industrial controversy in the establishment in which they were employed, but rather that they had lost their employment because, as a result of the merger, their jobs had been abolished. Accordingly, the Commissioner's representatives revised the initial determinations suspending the benefit rights of such claimants who were then found to have lost their employment under non-disqualifying conditions and held that the benefit rights of such claimants were not subject to suspension and they were eligible for benefits from the date of their respective filings, provided they met all of the other qualifying conditions of the Law. In those instances, where claimants had filed for benefits during the period originally designated as a suspension period and had not reported thereafter until the conclusion of the suspension period, the Commissioner’s representatives excused their failure to comply with reporting requirements. However, in those instances where a former employee of the involved newspaper publishers failed to file any claim for benefits within the period designated as the suspension period, his failure to file was, in the absence of good cause for the omission, not excused.

Claimant explained his failure to file for benefits prior to June 6, 1966 by alleging that shortly after he became unemployed, he telephoned to the local office to inquire whether persons who are unemployed because of a strike were entitled to benefits for seven weeks thereafter and he allegedly was informed that they were not. He also knew from a previous filing in 1964, when he had lost his employment because of a strike in the establishment in which he was then employed, that his benefit rights would be suspended for seven weeks. Moreover, he received confirmation of the fact that one who loses his employment due to an industrial controversy in the establishment in which he is employed is suspended from receiving benefits for seven weeks thereafter because he had been informed by several of his co-workers that their benefit rights had been suspended in April 1966. Accordingly, he concluded that it was useless for him to file for benefits.

Appeal Board Opinion and Decision: The referee concluded that claimant had shown good cause for his failure to file for benefits prior to June 6 in that it was reasonable for him to rely upon the nature of the initial determinations issued to some of his co-workers. He further concluded that the Industrial Commissioner’s denial of claimant’s application for pre-dating was arbitrary and without a sufficient basis in law or fact because, in his view, there was no distinction between those who had filed for benefits but had no reported during the suspension period and the claimant who had not filed for benefits. We are not in accord with the conclusions of the referee or the basis thereof.

The requirement for filing a claim for benefits in order to initiate a claim is mandated by Section 590.1 of the Law which provides that a claimant is entitled to benefits only if he has complied with the provisions of the Law regarding the filing of his claim and his reporting for work or has otherwise given notice of the continuance of his unemployment. Section 596 of the Law requires that a claimant shall file a claim for benefits at the local office within such time and in such manner as the Commissioner shall prescribe.

In Regulation 40(a) the Industrial Commissioner has set forth the requirements for filing an original claim and in Regulation 41 the Industrial Commissioner has prescribed the requirements for reporting by claimants who have initiated a claim by a filing. In other subdivisions of both of the aforesaid regulations, a provision is made for excusing the failure to comply with the above regulations "***by the Commissioner, upon proper presentation by the claimant of the fact and circumstances, if it is shown to the Commissioner’s satisfaction that they constitute good cause."

It is thus apparent that the referee erred when he concluded that the Commissioner’s actions were without a sufficient basis in law or fact. From the foregoing, it is obvious that the filing of a claim for benefits is a condition precedent to the establishment of a claim for benefits and that no claimant is entitled to benefits unless the Commissioner is satisfied that the omission was due to "good cause." Similarly, it is obvious that the commissioner has the legal authority to excuse or refuse to excuse a failure to file or a failure to report depending upon the particular facts and circumstances causing the omission.

Similarly, there is no basis to support the referee’s conclusion that the Commissioner’s actions were arbitrary because of the alleged similarity in the circumstances of those who had not reported during the suspension period after having filed for benefits and claimant who had neither filed nor reported. There is no similarity in the two situations. Those claimants who had filed but failed to report during the suspension period were acting in accordance with specific instructions from the Commissioner’s representatives that it was unnecessary for time to report during the suspension period so long as they did not protest the initial determination and thereby, in effect, agreed that they could accumulate no credit for benefits during such suspension period. In the instance of the claimant, however, he had received no such instructions. He acted on his own initiative and in accordance with his own judgment as to the necessity for complying with the legal requirement for filing for benefits. His failure to file a claim deprived the Commissioner’s representatives of an opportunity of initially evaluating the facts and circumstances which had caused the termination of his employment to permit a conclusion as to whether he was one who had lost his employment because of the existence of an industrial controversy in the establishment in which he was employed. There is thus a clear difference in both situations and consequently, there was a real basis for the denial by the Industrial Commissioner of claimant’s request for pre-dating his claim and yet excusing the failure to report of those who had filed. Such actions by the Commissioner are neither arbitrary nor capricious.

It is not for a claimant to determine for himself that it would be futile to file for benefits nor to rely upon that which he learned from co-workers. Moreover, even if we were to accept as credible, claimant’s contention that he telephoned to the local office to seek information with respect to the eligibility of a claimant who loses employment because of a strike, our conclusion would not be altered. He neither sought nor received any information with respect to the need for filing his claim and consequently his failure to file is not attributable to any misinformation conveyed to him by an accredited representative of the Industrial Commissioner.

In a similar case (Appeal Board 715), we said:

"Because of the widespread publicity which has been given throughout the State to one of the most important regulations under the Unemployment Insurance Law that an applicant cannot become eligible for benefits until he had filed an application in the local office, it requires strong evidence to warrant a finding that an application should be pre-dated six weeks because of a misunderstanding in regard to this regulation. It appears that claimant herein should have at least gone to the local office shortly after the date of the commencement of the strike and satisfied any doubt in his mind as to the time he should file an application for benefits. The strike started on September 27 and it was not until November 17 that claimant first appeared at the local office. Under these circumstances the application for benefits should not be pre-dated."

Similarly, we have repeatedly held that a claimant who actually relies upon sources outside the Division of Employment in failing to file a claim for benefits, does so at his own risk (See Appeal Board 1,102; 9,440; 9,703; 10,1005; 86,171; 88,142; 88,145 and 131,302).

In view of the foregoing, it is unnecessary to decide whether, in fact, the facts and circumstances surrounding the termination of claimant’s employment were identical with those surrounding the termination of employment of those claimants in whose cases the Commissioner had issued the revised initial determinations of eligibility for benefits. Inasmuch as we have concluded that the denial of claimant’s request for the pre-dating of his claim was a reasonable exercise of the Commissioner’s discretion, it follows that claimant’s failure to file for benefits within the period now claimed by him, renders him ineligible for benefits for the period April 25, 1966 through June 6, 1966.

The initial determination of the local office holding claimant in ineligible to receive benefits effective April 25 through June 5, 1966, on the ground that he failed to comply with registration requirements is sustained. The decision of the referee is reversed. (March 17, 1967)

 

A-750-1671

Index No. 1620-3

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

June 1, 1967

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Personal reasons

Matter of Moran, 34 AD 2nd 694

Appeal Board Case Number 137,451

VOLUNTARY LEAVING BY EDITORIAL WRITER – CONFLICT OF POLICY

Voluntarily leaving employment by the editor of a newspaper because he could not in good conscience agree with employer’s policy regarding the endorsement of political candidates is without good cause since (1) claimant refused to meet a condition of employment as it was the employer’s prerogative to determine editorial policy and (2) as editorials were unsigned, claimant’s compliance would not impinge upon his freedom of personal political choice or action.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective November 4, 1966, on the ground that he voluntarily left his employment without good cause is overruled.

Appealed By: Employer

Findings of Fact: Claimant was employed by the publisher of a chain of newspapers for eight years. He was editor of one of the employer’s newspapers for the last three years ending November 3, 1966, when he resigned.

The general manager of the newspaper was claimant’s immediate supervisor. The employer’s vice-president was the editorial director of the newspaper chain. No one person controlled the newspaper chain. No one person controlled the newspaper’s editorial policy, which was determined by the executives of the newspaper chain. The employer’s main office each day submitted three editorials of general interest to claimant’s newspaper for publication. Claimant as editor of the paper wrote between ten and twenty unsigned editorials a year on subjects confined to matters of local interest in the community, which the newspaper served.

Claimant knew that he did not have complete authority to write whatever he chose in the editorial columns of the paper. When claimant became the editor he was instructed that the paper’s policy on community issues was to be discussed with the editorial director. Editorials that involved a statement of basic or political policy were required to be discussed among the publisher’s executives with due consideration given to the views of the editor. The employer required that claimant’s published statements be in agreement with the basic policy of the paper on community questions as determined by its executive officers. During the period that claimant served as editor of the paper, he submitted the editorials he wrote on local issues to the editorial director of the publisher before they appeared in the newspaper.

Prior to the election in November 1966, claimant wrote an editorial in support of the incumbent mayor of the community who was a candidate for re-election. Claimant duly submitted his proposed editorial to his supervisor and the editorial director. Claimant and the officers of the publisher discussed claimant’s proposed editorial at length but claimant, despite his insistence, was unable to persuade the executives or to obtain their approval for publication of his editorial. Approval was denied because the editorial director and the publisher’s president, who was a long time resident of the community, chose to endorse the slate of candidates opposed to those preferred by claimant. Claimant took the position that since his employer insisted on endorsing the candidates whom he personally opposed and whom he believed to be less desirable for the benefit of the community, he could no longer remain as editor of the newspaper in that community.

The employer was satisfied with claimant’s work performance and expressed the desire to keep him in its employ by offering to transfer claimant to another community to work as copy editor at the city desk of another newspaper in the employer’s chain. Such employment would be at the same salary as claimant was receiving as editor. Claimant rejected the employer’s offer of a transfer. He left his employment because he believed that he could not in good conscience continue to act as the publisher’s chief spokesman in the community, since he was sharply opposed to the publisher’s choice of political candidates to be endorsed.

Appeal Board Opinion and Decision: The sole question in this case is whether claimant’s voluntary leaving of his employment was with good cause. Claimant does not dispute his employer’s prerogative to determine the newspaper’s editorial content. He seeks to justify his leaving on the ground that a conflict of policy had developed between him and his employer and as a result thereof he felt that he could no longer, in good conscience, continue to work for the employer.

Claimant’s compliance with the employer’s instructions to publish an editorial, the contents of which claimant opposed would not stamp claimant’s act as a personal endorsement of the employer’s policy, since all editorials were unsigned. The employer’s request and views did not impinge upon claimant’s freedom of personal political choice or action. Claimant’s personal disagreement with the employer’s policy does not absolve him from compliance, because regardless of the merits of the disagreement, the decision as to what editorial was to be published in the employer’s newspaper was entirely the employer’s (Matter of Day, 26 A.D. 2d 851, aff’g. Appeal Board 129,242). Furthermore, claimant’s refusal to carry out the employer’s direction would constitute an election by claimant not to meet a condition of his employment (Matter of Karman, 2 A.D. 2d 626, aff’g. Appeal Board 51,207; Matter of Malaspina, 309 N.Y. 413, aff’g. 285 App. Div. 564, rev’g Appeal Board 42,606).

Since claimant’s continued employment with the employer would not have resulted in any diminution of his salary, nor would it impose upon him any onerous tasks or result in any impairment of his abilities or endanger his health, claimant cannot justify his voluntary leaving of his employment for his personal reasons under the Unemployment Insurance Law. Accordingly, we hold that the disqualification provided for in Section 593.1 of the Law applies. The initial determination of the local office is sustained. The decision of the referee is reversed. (May 24, 1967)

 

A-750-1672 (Revised)

Index No. 1460B-2b

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

June 9, 1970

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Payments without work

Appeal Board Decisions 138,551 and 156,164

PAID HOLIDAY, ALLOCATION OF: GENERAL CONSTRUCTION LAW

1. If a claimant, pursuant to a union agreement, receives pay for a holiday such as New Year’s Day, that day is the "paid holiday" for the purposes of Section 591.3 of the law, even though it falls on a Sunday and the next day thereafter is then the "public holiday" under the General Construction Law.
2. However, if the union agreement requires that designated holidays are to be "observed" and the plant is accordingly closed on another day, the latter day is the "paid holiday" for the purposes of Section 591.3.

A.B. 138,551

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective January 2, 1967 only, on the ground that it was a paid holiday for which no benefits are to be paid is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a factory worker, has worked for the employer herein for eleven years. On December 30, 1966, claimant and a number of her co-workers were temporarily laid off because of lack of work. Claimant was recalled to work on January 9, 1967.

The employer operates this plant seven days a week and the plant was in operation on both Sunday, January 1, 1967, and on Monday, January 2, 1967. The collective bargaining agreement between claimant’s union and the employer provided that the union employees shall be paid for certain holidays, including New Years’ day. Pursuant thereto, on January 5, 1967 the employer paid claimant for the holiday which had fallen on Sunday, January 1, 1967.

Appeal Board Opinion and Decision: The initial determination herein is based upon the interpretation of the Industrial Commissioner that since New Year’s day, January 1, 1967 fell on Sunday, it was to be celebrated on Monday, January 2, for which day claimant is not to be paid benefits because it was a paid holiday.

Section 24 of the General Construction Law Provides:

"The term public holiday includes the following days in each year: the first day of January known as New Year’s day; …. And the twenty-fifth day of December known as Christmas day, and if any such days is Sunday, the next day thereafter; …"

Section 591.3(a) of the Unemployed Insurance Law provides that no benefits shall be paid to a claimant for any day during a paid vacation period or for a paid holiday. Section 591.3(c) of the Law provides:

"A paid vacation period or a paid holiday is a vacation period or a holiday for which a claimant is given a payment or allowance not later than thirty days thereafter, directly by his employer…even if such payment or allowances be deemed remuneration for prior services rendered as an accrued contractual right, and irrespective whether the employment has or has not been terminated."

Considering that the collective bargaining agreement between the employer and claimant’s union provided that New Year’s day, January 1, 1967, was a holiday for which claimant and the other union employees were to be paid, and that the parties thereto treated Sunday, January 1, 1967, as the holiday for which claimant was paid within thirty days, we reject the contention of the Industrial Commissioner that claimant is ineligible to receive benefits for Monday, January 2, 1967, on the ground that it was the day on which the public holiday described in the General Construction Law was observed and celebrated. The provisions of the Unemployment Insurance Law refer to a "holiday," not to a "public holiday." It is significant that the employer’s plant operates on a seven-day basis and that it was in operation both on Sunday, January 1, 1967, and on Monday, January 2, 1967, even though claimant and a number of other employees were on temporary layoff at the time. We have previously considered the issue raised herein (see Appeal Board 137,748). In accordance therewith, we hold that claimant was not ineligible to receive benefits effective January 2, 1967 on the ground that it was a paid holiday for which benefits are not to be paid.

The initial determination of the local office is overruled. The decision of the referee is reversed. (May 25, 1967).

A.B. 156,164

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective October 12, 1969, only, on the ground that it was a paid holiday for which no benefits are to be paid, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: 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, a sewing-machine operator, is employed in a dress factory. Her job is unionized. The collective bargaining agreement between claimant’s union and the employer provides that employees shall be paid for certain "legal holidays" including Columbus Day. The contract further provides that all such holidays shall be observed. The employer’s workweek runs from Monday through Friday. Because Columbus Day fell on Sunday, October 12, 1969, it was observed on Monday, October 13 and accordingly, the employer’s factory was closed on Monday, October 13 in observance of the holiday. Claimant received payment for this holiday on October 21, 1969, and the amount of such holiday on October 21, 1969, and the amount of such holiday payment was $19.50. Claimant received partial benefits for the statutory week ending October 12, 1969. She did not claim any benefits for the statutory week ending October 19, 1969 inasmuch as she earned over $65 during the latter week.

Appeal Board Opinion and Decision: Inasmuch as the referee rendered a well-reasoned opinion, the Board adopts it as the opinion of the Board:

The sole question in this case is whether Sunday, October 12 or Monday, October 13, 1969 constituted a paid holiday within the meaning of the Unemployment Insurance Law. Inasmuch as the Columbus Day holiday fell on a Sunday, it was properly celebrated on Monday pursuant to Section 24 of the General Construction Law. In addition, considering the fact that the claimant never worked for the employer on Sundays and the employer’s establishment is closed for business on Sundays and normally opened for business on Mondays, and since the employer gave the employees a paid day off on Monday, October 13, in observance of the Columbus Day holiday, I find that the paid holiday was Monday, October 13 rather than Sunday, October 12. Claimant is therefore eligible for benefits for October 12.

In passing, we point out that we have not overlooked our decision in Appeal Board, 138,551, in which case the Board arrived at an opposite view. We did so because in the case cited, the holiday in question was New Years Day, January 1, 1967, which fell on Sunday, but was celebrated the following Monday by operation of Section 24 of the General Construction Law. However, the paid holiday, according to the agreement of the parties involved in that case, was Sunday, January 1, 1967, rather than Monday, January 2, 1967. In the case now before the Board, the parties chose to specify in the union agreement that the date of the actual observance of a holiday, which in the present case was Monday, October 13, 1969, was to constitute the paid holiday. The referee herein so ruled and we agree.

The initial determination of the local office is overruled. The decision of the referee is affirmed. (May 26, 1970).

 

A-750-1673 (Revised)

Index No. 1315-15

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

February 4, 1970

INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
"In the establishment," question of

COURT OF APPEALS DECISION

Matter of Albert J. Sierant, 24 NY 2nd 675

INDIVIDUAL BUILDINGS IN ONE COMPLEX: QUESTION OF "ESTABLISHMENT"

Individual buildings and structures of an industrial complex, separated by distances of 60 to 400 feet and located in an area broken up by railroad tracks and public thoroughfares, were held to be separate establishments even though they are interconnected by overhead bridges and their functions are interdependent.

DECISION

The Legislature has provided, in subdivision 1 of section 592 of the Labor Law, that employees who lose their employment because of a strike will not be paid unemployment benefits for a period of seven weeks, even through they took no part in that strike, if it occurred in the "establishment" in which they worked. Insofar as pertinent, subdivision 1 provides:

"The accumulation of benefit rights by a claimant shall be suspended during a period of seven consecutive weeks beginning with the day after he lost his employment because of a strike, lockout, or other industrial controversy in the establishment in which he was employed."

In the case before us, the claimants-appellants were employed by General Mills in various buildings in its plant in Buffalo, New York. A strike by longshoremen in the plant’s grain elevators resulted in the claimant’s loss of employment. Maintaining that that strike took place in an "establishment" other than the one where they were employed, the claimants insisted that they were not subject to the suspension of benefits provided for by the statute. 1/ The Unemployment Insurance Appeal Board, sustaining a decision of the Industrial Commissioner in the claimants’ favor, determined that they were entitled to benefits from the first day on which they lost their employment. On appeal, the Appellate Division reversed and dismissed the claims.

1/ The present claimants were "selected as representative" of about 315 employees who filed similar claims for benefits.

The employer-respondent General Mills is a manufacturer of flour, cereals and other wheat products from the raw wheat grain. It operates a complex of grain elevators, flour and cereal mills and packaged food plants connected by overhead bridges in an area lying between the City Ship Canal and the Buffalo River and broken up by railroad tracks and public thoroughfares. Wheat, received from ships and railroad cars and stored and blended in the two grain elevators, is transported in the overhead bridges to other storage areas and to the several mills and plants. Originally, the elevators had been owned and operated by several corporations having nothing to do with the manufacture of wheat products. They supplied grain to the mill but, as one witness noted, "[h]istorically, they were separate establishments." And there was ample evidence before the Board to justify its conclusion that those elevators were separated from the other buildings not only by substantial distances but by railroad tracks and public thoroughfares. 2/

2/ More specifically, the buildings in which the non-striking employees worked are separated from the elevators by distances of anywhere from 60 to 120 to 400 feet. Indeed, (1) the warehouse and cereal plants are separated from the elevator closest to them by nine sets of railroad tracks and a public street, (2) a cereal mill is separated by railroad tracks, a public street and several high buildings and (3) a flour mill by a railroad sliding of three or four sets of tracks. Although it is true, as the employer points out, that a portion of the north wall of one building (the Utility Building) is formed by the storage tanks of one of the elevators, the record contains no evidence that any of the non-striking employees who were laid off performed services in the Utility Building.

On March 25, 1963, in protest against the layoff of several of their fellows, all of the employer’s longshoremen, who work in the grain elevators, engaged in a wildcat strike. As a result of that strike, General Mills was unable to transfer grain from the elevators to other parts of its plant and was compelled, within a few days’ time, to lay off a large number of employees, including the claimants, who worked in its flour and cereal mills, packaged food plants and other buildings. Although there were only some 40 strikers, about 315 non-strikers were affected by the work stoppage; the remaining 500 employees continued to work. The strike was settled on April 24.

The longshoremen, who are represented by Local 1286, International Longshoremen’s Association, perform all of their work in the grain elevators except that once a day a longshoremen goes to "measure grain" in the storage tanks. The contacts between the longshoremen and the mill workers are minimal. The two sets of employees belong to different unions, the longshoremen, as noted, to a Local of the International Longshoremen’s Association and the other employees to Local 36 of the American Federation of Grain Millers. Each union has different agreements with respect to wages, hours and working conditions. There is no interchange of personnel, the longshoremen being hired through the union or its hiring hall and the other employees from the street. The elevators and the mills have separate superintendents, and there are separate health, welfare and pension plans. On the other hand, it should be noted, there are certain common facilities, which serve both, such as the powerhouse, cafeteria, medical office, supply and storeroom offices, machine shop, personnel and payroll office and purchasing office.

Equating the word "establishment" with "place" rather than "enterprise" – in accordance with our decision in Matter of Ferrara (Catherwood) (10 NY 2d 1) – the Unemployment Insurance Appeal Board made a finding that the grain elevators constituted an establishment, separate and distinct from the various mills and packaging plants spread over the area. Therefore, the Board concluded, since the claimants were not employed in the establishment in which the strike occurred, they were not subject to the seven-week suspension of benefits.

Section 623 of the Labor Law, insofar as pertinent, recites that a "decision of the appeal board shall be final on all questions of fact and, unless appealed from, shall be final on all questions of law." Accordingly, our task is simply to decide whether there was substantial evidence to sustain the board’s determination and not whether there was evidence to support the Appellate Division’s contrary decision. An appellate court may upset the determination of the Appeal Board only if it may be said, as matter of law, that the claimants were employed in the same establishment as the striking longshoremen. In the present case, it is clear, the Board’s determination is supported by substantial evidence and must be upheld.

In Matter of Ferrara (Catherwood) (10 NY 2d 1, supra), striking clerks of the National Airlines office at Idlewild caused a layoff of the company’s mechanics in the Idlewild hangar and of its clerks who had been working in Manhattan. This court upheld the determination of the Appeal Board – confirmed by the Appellate Division – that the strikers and the other two sets of workers were not employed in the same establishment and that the latter were entitled to unemployment insurance benefits. In so doing, the court ruled that the word "establishment" in the statute (§592, subd. 1) was to be equated with "place and situs" rather than given "an all-encompassing meaning equated with ’enterprise’" (pp.7,8) and, consequently, was to be "defined in geographic terms rather than in terms of corporate organization or exercise of management powers and functions" (p. 8). 3/

3/ The Appellate Division expressed the same thought in Ferrara (11 A.D 2d 171, 173) by stating that the Legislature "did not mean by ‘establishment’ the whole compass of a large employer’s business institution where it operates in differently localized components."

Applying this principle to the facts of the case now before us, it certainly may not be said, as a matter of law, that the two grain elevators, which received wheat from ships and railroad cars for initial storing and blending, are located in the same "place or situs" as the mills and processing and packaging plants – which, as already noted, are sprawled over a wide area – and, hence, that they constitute the same establishment. The elevators are removed by up to 400 feet from the mills and processing buildings and variously separated from them by three or four sets of tracks of a railroad spur, by another nine sets of railroad tracks and by public streets. Their geographic separateness is further emphasized by the fact that the grain elevators were originally owned and operated for many years by commercial elevator companies completely separate and apart from the mill until General Mills, the holding company, ultimately acquired all of the various outfits. In addition, other than the fact that one longshoreman went daily to the two mill tanks – with which non-striking employees had some contacts – to measure grain, there were no working relations whatsoever between the striking and non-striking employees.

All in all, the Appeal Board’s finding of a separate "establishment" was fully warranted by the geographic location of the elevators. Moreover, such a conclusion better accords with the legislative design of the statute and the construction which this court has placed upon it than does the Appellate Division’s contrary holding. The suspension provision should be "narrowly construed," we declared in Ferrara, "to effectuate the broad humanitarian objects sought to be achieved by the statute," and this, we added, is best done by defining "establishment" in "geographic terms" (10 NY 2d, at p. 8). 4/ Unemployment Insurance provisions were intended to protect workers who lost their employment through no fault of their own. Striking employees, the court continued, were excepted from coverage for a seven-week period in the "interest of preserving (governmental) neutrality between a contesting employer and employees and irrespective of individual need***. The State must stand aside, at least during the early stages of an industrial controversy, and thereby avoid the imputation that a dispute may be financed through unemployment insurance benefits" (10 NY 2d, at p. 8; see, also Matter of Heitzenrater [Hooker Chem. Corp.], 19 NY 2d 1,7). Non-striking employees in the same "establishment" with the strikers were similarly excepted, presumably either to prevent collusion between strikers and those who, by reason of their close proximity, might be in a position to gain from a strike or to induce the non-strikers to bring pressure to bear on their striking co-workers to terminate the strike. Be that as it may, a restricted construction of the term "establishment" to apply to immediate geographic situs of the striking employees goes far toward preventing the harmful effects of a loss of employment benefits upon innocent and uninvolved employees.

4/ Such a construction also makes for ease of administration. Again, to cull from our opinion in Ferrara, the "geographic concept of ‘establishment,’ looking only to concrete facts, better fits the legislative purpose of simplicity of administration" and ease of understanding by both employee and employer, than one which would require "complex or abstract administrative determinations" with reference to "individual involvement, participation or interest" (10 NY 2d, at pp. 8-9)

The employer relies heavily upon our determination in Matter of George (Catherwood) (14 NY 2d 234). It is true that the Appellate Division and our court there concluded that the general Motors motor plan, forge and foundry at Tonawanda constituted one establishment but what is significant and decisive is the fact that the Appeal Board had so found, and the courts had no alternative but to uphold that determination since there was substantial evidence to support it. 5/

5/ As a matter of fact, this aspect of the George case (14 NY 2d 234, supra) was a subsidiary one, the principal question decided being that General Motor operations as far apart as Buffalo, Tonawanda and Lockport constituted separate establishments. In reaching that conclusion, this court actually reinstated the determination of the appeal Board and reversed so much of the Appellate Division’s decision as held that they constituted a single establishment.

Whether the Board’s determination in the case before us is at odds with its conclusion in George is beside the point. It is enough to observe that in cases in which administrative agencies arrive at variant results of seemingly identical fact situations, the courts are under the necessity of confirming both determinations if evidence is at hand to support them. Likewise, in the present case, the Appeal Board’s determination must be confirmed, since it is supported by substantial evidence that the non-strikers were employed in an establishment separate and apart from that in which the strikers worked.

The order appealed from should be reversed, with costs in this court and in the Appellate Division, and the determination of the Unemployment Insurance Appeal Board reinstated. (May 15, 1969)

COMMENTS

1. The principle of defining "establishment" in geographic terms was set by the Court in Matter of Ferrara (A-750-1494; revised). There, an airline’s airport terminal office, in which striking clerks had been employed, was held to be a separate establishment from its hangar 2½ miles away, and its city offices 10 miles distant.
2. The present decision is in accord with Appeal Board decision 94,508 (not reported in the Interpretation Service) where two buildings in which an automobile manufacturer conducted dovetailing operations – a body plant and an assembly plan – were held to be separate establishments although they were only 60 feet apart and connected by an enclosed passageway through which finished parts were transported from one building to the other for further processing.

 

A-750-1674

Index No. 1460A-2

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

June 15, 1967

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Vacation Pay

APPELLATE DIVISION DECISION

Matter of Jack Friedman, et al

Appeal Board Nos. 107,841, 107,842, 109,574

VACATION PERIOD; QUESTION OF "DESIGNATION"

The first week in July is held to be the time designated for vacation by a union agreement when it not only prescribes that the "first week vacation pay each year shall be paid during the first week in July," but also provides that an "employee may request, before the July vacation period, a one week’s leave of absence without pay, which shall be granted either one week before or after the vacation."

DECISION

Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board, filed May 26, 1964, which overruled his initial determinations and allowed benefits to the claimants.

The issue is whether or not the board could allow the claimants to receive benefits for the first week of July when they were paid vacation benefits for that week by the employer.

In Matter of Miranda (Catherwood) (13 AD 2d 571) the court found that under certain circumstances an employee could receive vacation pay and still be eligible for unemployment insurance benefits for the same period under the applicable section 591(3) of the Labor Law. Since that decision, subdivision three has been amended and to some extent rewritten.

The applicable language of this statute as follows:

"3. Vacation period or holiday.

1. No benefits shall be payable to a claimant for any day during a paid vacation period, or for a paid holiday, nor shall any such day be considered a day of total unemployment under section five hundred twenty-two of this article.
2. 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 claimants in this case were laid off from work in May of 1963 and were not recalled until July 8, 1963. The union agreement provided among other things that these claimants were to have at least one week’s vacation; that the "first week vacation pay each year shall be paid during the first week in July"; that the "workers may work and receive their vacation allowances in cash in addition to their regular pay"; that an "employee may request, before the July vacation period, a one week’s leave of absence without pay, which shall be granted either one week before or after the vacation, at the option of the Employer".

The board found that the union agreement did not designate a vacation period, but merely provided the time for the payment of vacation allowances. A reading of the last clause of the agreement relating to vacations as quoted above in regard to a leave of absence mandates the conclusion that the first week in July was designated as a vacation period.

In Matter of Miranda (Catherwood) (13 AD 2d 571, 573) decided by this court in 1961, after recognizing that Section 591 (subd. 3, par. 3) permitted a windfall to an employee, with reference to vacation pay the court stated: "Apparently this legislation, well intended, needs revision, if similar injustices are to be avoided." The Legislature by Chapter 794 of the Laws of 1963 rewrote Section 591 so as to correct the inequities. (See Memoranda of Commerce and Industry Association, 1963 New York State Legislative Annual, p. 373.) To affirm the present decision would be undoing what the Legislature very properly corrected.

We would further note that the argument of the claimants that the notice posted was ineffectual, under the present facts, is without merit.

Decision should be reversed and the matter remitted for further proceedings not inconsistent herewith. (May 31, 1967)

COMMENTS

1. The Court held that in this case the language of the union agreement, taken in its entire context, designates the first week of July as the vacation period even though such designation is not expressly stated. The general conclusion to be drawn therefrom is that the designation of a specific time for the vacation can be read into union agreements if such intent is manifest even though direct words may be lacking. The decision suggests realistic evaluations under appropriate circumstances regarding the sufficiency of the terms of union agreements with respect to the designation of a specific vacation period. However, care is required to prevent that such designations are read into union agreements without full justification.
2. The Appeal Board’s decision in this case was not predicated on the contract language. It was based solely on a consideration of the notice posted by the employer, designating the vacation period. The Board had held that the notice was ineffectual with respect to claimants who had been laid off prior to its posting by the employer.

An appeal to the Court was taken because of disagreement with that conclusion. However, even though the Court has now overruled the Board, its decision was reached on different grounds. Nevertheless, this Court decision, and its reasoning, supersede the Appeal Board decision.

This requires a reinstatement of the principles with respect to the effect of posted notices as they were applied prior to the Appeal Board decision. This, in turn, means that an advance posting of a notice designating a vacation period should be considered as satisfying the statutory requirements for all workers, including not only those who were absent due to sick leave or similar reasons, but also those who had been laid off prior to the posting of the notice.

Whenever any such case arises and a determination denying benefits is made accordingly, it is advisable to inform the claimant of the former Appeal Board decision. This will enable him to decide whether he should request a hearing from such denial of benefits. It will be appropriate to encourage the claimant to do so.

When a hearing case involving the issue is forwarded to the Interpretation and Review Section, it should be earmarked by special reference to these Comments in order to assure full presentation of the Court decision and of the preceding Appeal Board decision in the hearing and appeal process.

 

A-750-1676 (Revised)

Index No. 1240-3

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

November 26, 1968

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Fringe Benefits

APPELLATE DIVISION DECISION

Matter of Theo Shanley

REFUSAL – TEMPORARY EMPLOYMENT: ABSENCE OF FRINGE BENEFITS

If fringe benefits are not customarily offered for temporary jobs, a refusal of temporary employment because of their absence is without good cause when the usual fringe benefits for permanent employment are only provided after a qualifying period which is not shorter than the duration of the offered temporary job.

DECISION

Appeal is taken by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board, which reversed a Referee’s decision sustaining an initial determination, which disqualified claimant from benefits on the ground that she had refused an offer of employment without good cause. (Labor Law, §593, subd. 2, par [d]), whether upon permanent or temporary employment, because substantial fringe benefits customarily paid or supplied (after three months) for permanent employment in her occupation were not provided for the temporary job offered her. The parties are in substantial agreement as to the facts and appeal presents only a question of law.

Claimant, a keypunch operator, could not return to her employment at the termination of a maternity leave of absence because her employer had meanwhile moved its entire keypunch system from the area. Kelly Girl Service, an employment contractor for temporary services, offered her six to eight weeks’ employment with another employer as a key punch operator at the prevailing wage, which was at substantially the same rate as that paid in that occupation for permanent and temporary employment alike. Claimant refused the offer, stating her reasons for desiring permanent only. As herein before indicated, the board found that the prospective employer would not have provided the usual fringe benefits granted by employers for similar work on a permanent basis, the benefits including free hospital and medical insurance, participation in a retirement plan, paid holidays and accrued vacation credits; and the board thereupon "conclude(d) that the conditions offered to claimant were substantially less favorable to claimant then those prevailing for similar work in the locality."

It seems to us important to note that the board later found that these "fringe benefits of a substantial nature are provided to persons employed in similar occupations in the locality for a period of three months or more". (Emphasis supplied). It appears elsewhere that fringe benefits are not customarily offered for temporary jobs in claimant’s occupation, for reasons that are obvious and understandable. The board observed that claimant’s acceptance of the temporary job would have deferred her commencement of the three-month qualifying period in a permanent job, had one become available; but there is no suggestion that claimant would not, or could not have left the temporary position for a permanent job at any time. Moreover, it is clear, first, that the mere possibility of a permanent opening might not be fulfilled, even within the maximum period for payment of unemployment insurance benefits; and, second, that at least at the time of claimant’s refusal of the temporary employment neither the wage rate nor "the conditions offered [were] substantially less favorable" (par. [d], supra) than those obtaining at the outset of a possible permanent employment and for three months thereafter; and to that extent no justification for the refusal existed, within the literal meaning of the statute. Our decision rests also upon the additional and broader ground that the rule enunciated by the board in this case contravenes the basic intendment and the spirit of the Unemployment Insurance Law. Since the enactment of the statute, fringe benefits have no greatly increased in number, nature and diversity and have been extended to so may employments that, in general, they have come to constitute one of the major factors in employer-employee relations and have become of such value as to render the adjectival "fringe" something of a misnomer. As claimant contends, such benefits "are to be considered part of over-all compensation." (Matter of Asserson [Catherwood], 25 AD 2d 895). We recognize, too, the validity of claimant’s additional argument that "the statute makes no distinction between temporary and permanent employment" (Matter of Lehrman [Corsi], 281 App. Div. 936); but this cuts both ways and requires that only for a substantial reason may an unemployed claimant refuse temporary employment, even of one day’s or one week’s duration (Matter of Walls [Catherwood], 26 AD 2d 883; Matter of Kotlowitz, [Catherwood], 24 AD 2d 813) or, indeed, refuse a permanent job paying prevailing wages but "less than a job which is not available for which claimant’s skill might qualify him if such a job were available" (Matter of Matyevish [Catherwood], 15 AD 2d 387, 388). The effect of the board’s holding in this case would be to permit a claimant to obtain unemployment insurance benefits despite his refusal of a temporary job, for which he is fitted and which pays the prevailing wage rate, and to permit him to wait indefinitely for a job to become available which shall pay not only the prevailing wage but, after three months, fringe benefits as well, provided, of course, the claimant’s employment shall survive such three-month qualifying period.

The matter of temporary employment poses for this claimant, as doubtless for many others, a manifest problem, and one evoking sympathetic consideration; but it seems rather clear to us that the board’s decision does not constitute a proper and authorized solution when we recall the purpose and intent of the unemployment insurance statute. The act was designed to "lighten (the) burden" of "involuntary unemployment" which "so often falls with crushing force upon the unemployed worker and his family". (Labor Law §501.) "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. ***It was not intended to regulate wages – it was intended as a substitute for the complete loss of wages forced upon an employee. (Labor Law §501, 522)" (Matter of Sellers [Mays, Inc. – Catherwood], 12 AD 2d 204, 205, 206.)

The decision should be reversed, without costs, and the claim remitted for further proceedings not inconsistent with this opinion. (June 14, 1967)

COMMENTS

The significance of fringe benefits in evaluating whether an offered job meets the test of prevailing conditions is discussed in the Comments of A-750-1669. A review of those Comments is suggested.

 

A-750-1685

Index No. 1460B-5

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

November 28, 1967

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Compensation without work – other

Appeal Board Case Number 140,822

HOLIDAY PAY WITHIN STATUTORY PERIOD, QUESTION OF

Payment for a holiday is considered to have been made within the 30 days required by Section 591.3(c) in order to constitute a "paid holiday," even though not collected by the claimant within that period, if the employer was prepared and ready to make the payment within the 30 days had the claimant called for it as was customarily done by the employees.

Referee’s Decision: The initial determinations of the Out-of-State Resident Office holding claimant ineligible to receive benefits effective December 26, 1966, on January 2, 1967, on the ground that such dates represented paid holidays for which no benefits are to be paid; and charging claimant with an overpayment of $9.75 in benefits, ruled to be recoverable is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a machine operator, was employed by a manufacturer of men’s slippers for about eleven years until December 20, 1966 at which time she was laid off.

Pursuant to the agreement, between the employer and claimant’s union, the employees are entitled to holiday pay for Christmas and New Year’s Day, provided they had worked a certain number of hours preceding the holiday. Claimant had received such holiday pay in prior years under union agreement. She was entitled to receive holiday pay for Christmas, Sunday, December 25, 1966, and New York'’ Day, Sunday, January 1, 1967. The employer prepared claimant’s check for the Christmas holiday pay on December 31, 1966 and prepared claimant’s check for the holiday pay due for New Year’s Day on January 11, 1967.

Claimant was unable to call for the holiday pay in person at the employer’s premises as was customarily done by the employees, because she went to Puerto Rico on December 29,1966. She sent her son to collect the checks from the employer sometime during January 27, 1967 and the son mailed them to claimant in Puerto Rico. The exact date when claimant’s son collected the checks and mailed them to claimant is not known.

However, the mailing time from New York to Puerto Rico is from two days to one week, depending on whether the mail is sent first-class or airmail. Claimant’s holiday checks were cashed at a supermarket in Puerto Rico, which deposited them in its bank on February 2, 1967.

When claimant certified for benefits in Puerto Rico during January 1967, she failed to report that she was entitled to receive holiday pay for Christmas and New Year’s Day. Claimant contends that she did not know whether or not she would be paid for these holidays because she did not intend to return to her employer in New York. Claimant was paid $9.75 in benefits, which she would not have received if she had disclosed that she would be paid for the Christmas holiday.

Appeal Board Opinion and Decision: In Appeal Board 138,551 and 138,571, we held that a paid holiday occurring on Sunday and celebrated publicly on Monday makes claimant ineligible for benefits on that Sunday and not on Monday, when Monday is declared a public holiday. Since Christmas fell on Sunday, December 25, 1966, although celebrated publicly on Monday, December 26, 1966 and New Year’s Day fell on Sunday, January 1, 1967, although celebrated publicly on Monday, January 2, 1967, we conclude that claimant received holiday pay for Sunday, December 25, 1966, and Sunday, January 1, 1967. Therefore, the initial determinations of the local office holding claimant ineligible to receive benefits effective December 26, 1966 and January 2, 1967, on the ground that such days were paid holidays, for which no benefits are to be paid, should be modified to make the same effective December 25, 1966 and January 1, 1967, respectively, in accordance with the above decisions.

Section 591.3(a) of the Unemployment Insurance Law provides that no benefits shall be paid to a claimant for any day during a paid vacation period or for a paid holiday. Section 591.3(c) of the Law provides.

"A paid vacation or a paid holiday is a vacation period or a holiday for which a claimant is given a payment or allowance not later than 30 days thereafter, directly by his employer…"

The credible evidence establishes that claimant received holiday pay for December 25, 1966, and January 1, 1967, within the statutory period. The employer was prepared to pay claimant for these holidays on December 31, 1966, and January 11, 1967 if she had called for them, as was the custom. Claimant’s holiday paychecks were made out and appropriate charges were made on the employer’s books as of these dates. The checks were due and payable and deliverable to claimant on said dates, and, therefore, the statutory requirements were complied with by the employer. The fact that claimant cold not pick up the checks personally when they were ready for her because she had moved from the area, and that she had to rely on her son to collect the checks and mail them to her, does not alter the effect of Section 591.3(c) or change the nature of the paid holidays within the intent of the statute. Furthermore, it is noted that the mail delivery could have taken from two days to a week; but that the checks were deposited in Puerto Rico by a third party on February 2, 1967.

On these facts, we conclude that claimant was ineligible to receive benefits effective December 25, 1966, and January 1, 1967, on the ground that said days were paid holidays for which no benefits are to be paid.

Since claimant was ineligible to receive benefits for December 25, 1966, because it was a paid holiday, the payment of benefits she received for that day constitutes an overpayment. When claimant failed to report that she was entitled to receive holiday pay for Christmas, December 25, 1966, her certification was factually false, even though not wilfully so. The benefit payment received by claimant as a result of her false statement is recoverable under Section 597 of the Law.

The initial determinations of the local office holding claimant ineligible to receive benefits effective December 26, 1966 and January 2, 1967, on the ground that said days were paid holidays for which no benefits are to be paid, are modified to be effective December 25, 196 and January 1, 1967, respectively, and as so modified, are sustained.

The initial determination of the local office charging claimant with an overpayment of $9.75 in benefits, ruled to be recoverable, is sustained. The decision of the referee is reversed. (November 10, 1967)

 

A-750-1687

Index No. 1605A-2

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

December 14, 1967

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Discharge or leaving

Appeal Board Case Number 141,874

VOLUNTARY LEAVING, QUESTION OF; EXERCISING OPTION AS TO TERMINATION DATE

Where an employer offered a choice of dates for terminating the employment, a claimant does not become subject to a disqualification for voluntary leaving by a selection of the earlier of two dates since exercising such option does not make the separation voluntary.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective July 1, 1967, on the ground that she voluntarily left her employment without good cause is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a clerk-typist, was hired on September 6, 1966, by a public utility, on a temporary basis. She was one of a group of employees hired on the same basis. Their assignment was scheduled to terminate on June 30, 1967. Just prior that date, the supervisor called the entire group together and advised it that a few of them could continue working until the end of July 1967, but not all of them could do so. The choice of who would leave on June 30, 1967 was left to the members of the group. Claimant agreed to be one of those who would be laid off on June 30, 1967.

Appeal Board Opinion and Decision: The precise question involved on this appeal was considered by the Board, in Appeal Board 137,073. The Board in that case stated the following:

The referee ruled that claimant voluntarily left her employment without good cause because she could have worked until November 18. Although it is usually held that one who leaves his job before his date of discharge is to be disqualified for voluntarily leaving his employment without good cause, this rule is not applicable to the facts herein. Claimant was discharged as of November 7, 1966 just as effectively as if the date were November 18, 1966. The employer had determined to terminate her services in any event but merely gave claimant the choice of selecting the date. She should not be disqualified for exercising the option given to her by the employer. The termination of her employment was involuntary (Appeal Board 81,852-61).

We conclude that claimant did not voluntarily leave her employment without good cause but was discharged by the employer as of November 7, 1966.

The rule in the cited case supra, is applicable to the present case

The initial determination of the local office is overruled. The decision of the referee is reversed. (November 4, 1967)

 

A-750-1688

Index No 740.6
755B.4

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

January 12, 1968

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Pensions – Retirement
Restrictions of Employment – Wages

Appeal Board Case No. 139,774

YEARLY EARNINGS RESTRICTION – LOSS OF SOCIAL SECURITY BENEFITS

Limiting employment to maximum yearly earnings so as not to jeopardize social security payments dos not render claimant unavailable unless such restriction precludes reasonable job opportunities, either because earnings are already close to the maximum or claimant’s occupation is such that the restriction militates against employment prospects.

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective January 23, 1967, on the ground that he was not available for employment is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, age 67, was employed as a meat grinder for over ten years. At times, he had to lift fifteen thousand to twenty thousand pounds of meat a day and found this work too heavy for him. He asked for a helper which was supplied. The employer told him that he would have to retire, but allowed him to work until the end of the year to December 30, 1966.

Claimant does not receive a company or union pension. He applied for social security old age benefits and expects to receive approximately $130 a month. He looked for work as a meat grinder or dishwasher. He obtained one week’s work with a meat market. Subsequently, his former employer rehired him as a meat grinder for the summer season. There is no evidence purporting to indicate that employers of persons in claimant’s occupation are unwilling or reluctant to hire persons with claimant’s skills unless they are given reasonable assurance that the prospective employee is ready, willing and able to continue in such employment on a permanent basis, nor does it appear that an expressed intention to continue in the employment for a limited period would create a barrier to the hiring of such persons.

From the time of the filing of claimant’s claim for benefits, he had intended to accept employment and continue therein until such time as his earnings would reach the point of affecting his eligibility under the Federal Old Age and Survivors Insurance Plan. Claimant’s average weekly earnings were $93. If claimant were to obtain a job at approximately his former average weekly earnings he could work for approximately 16 weeks without jeopardizing his eligibility for benefits under the said Plan.

Appeal Board Opinion and Decision: The sole support for the determination here under review is claimant’s indication that he would not continue in employment beyond the time that his earnings would have no effect on his eligibility for full benefits under the Federal Old Age and Survivors Insurance Plan. It is undisputed that until such time as claimant would have earned approximately $1500, he was ready, willing and able to work and that from the time he filed his claim for benefits he could have worked approximately 16 weeks without jeopardizing his benefits.

Thus, the issue is here squarely presented, as to whether a restriction such as that imposed by claimant produces his unavailability for employment during that period of time when he is actually prepared to work. In our view, as long as it appears that claimant’s opportunities for employment are not unreasonably limited by his restriction to continue in employment for a limited period of time and he has not yet approached his earnings limitation, he is actually in the labor market and is available for employment within the purview of the Unemployment Insurance Law. If, of course, the restriction which claimant imposes creates such a barrier as to foreclose him from reasonable prospects of procuring work either because he has already earned the maximum which he desires to earn for the year or is very close to reaching that point or his occupation is such that his expressed restriction to work only a limited period of time militates against his prospects for procuring work, then in such events, he has effectively produced his unavailability for employment. Such is not the situation in the instant case and therefore we conclude that claimant’s restriction did not produce his unavailability for employment during the period here in issue.

The initial determination is overruled. The decision of the referee is reversed. (January 2, 1968)

COMMENTS

1. This decision represents a reversal of the principle stated in Release A-750-1658. That release should be marked obsolete.
2. The amount that a worker may earn in a year without losing part of his old-age or survivors insurance benefits is now $1,680, except that there is no such limit for persons over 72 years of age. For those under 72 years, there is a $1 reduction in benefits for each $2 of earnings between $1,680 and $2,880, and a $1 reduction for each $1 of earnings above $2,880.
3. Where such claimants restrict their employment to earnings not exceeding $1,680 per annum, the closer to that amount their previous earnings in the given year already are, the nearer the case will come to fall within the principle stated in the decision here reported. In addition, unavailability is spelled out if, because of the occupation or for other reasons, any wage restriction creates such a barrier as to foreclose reasonable prospects of procuring work due to the time limit it establishes for the period the claimant is willing to remain in the employment.

Each case will have to be decided on its own merits, taking into consideration the restriction and wages already earned as compared with the employment opportunities existing within the type of work and salary desired.

 

A-750-1690

Index No. 1315-14

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

January 24, 1968

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

Appeal Board Case Number 141,785 & 786

QUESTION OF "ESTABLISHMENT" – TRUCK DRIVERS

If truck drivers, though reporting daily at a central garage to obtain trucks and work assignments, perform a substantial portion of their work at the sites of construction jobs, these job sites (and not the central garage) are the "establishment" for the purpose of industrial controversy determinations.

Referee’s Decision: The initial determinations of the local office suspending the accumulation of benefit rights by claimants A.J.C. and D.C., effective July 26 through August 10, 1966, on the ground that they lost their employment because of industrial controversy in the establishment in which they were employed is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimants, truck drivers, were employed by a construction company on a "shape up" basis. They reported each day to the employer’s central garage and office for their work assignments. When they worked, each claimant drove an empty truck from the garage to one of several job sites in the Bronx where the trucks would be loaded with rock and dirt to be dumped either at their same site, at the other job site, or at some other location designed by the employer. Although neither claimant worked regularly at any one location, each performed a substantial portion of his work at the two Bronx job sites prior to the strike. Occasionally, the employer rented one of its trucks for a day to another contract and supplied one of the claimants as the truck driver. At the end of each workday, claimants returned the empty trucks to the garage.

Claimant, A.J.C., commenced to work for the employer in March 1965. During the next sixteen months he worked 145 days and last worked on Friday, July 22, 1966. Claimant, D.C., worked a total of twelve days for the employer, at least three days a week in each of the four weeks in the period ending July 22, 1966, the last day on which he worked. On Monday, July 5, 1966, when claimants reported for work at the central garage and office, they were told by the dispatcher that there was no work for them because the employer’s operating engineers had struck and picketed the two job sites in the Bronx. There was no strike, lockout or industrial controversy at the employer’s central garage and office, which was, located a substantial distance from each of the two Bronx job sites. Claimants were unemployed thereafter until they returned to work on August 8, 1966.

Appeal Board Opinion and Decision: We concur in the conclusion of the referee that the pattern of work of each of the claimants, as the result of daily "shape up," was sufficiently regular and consistent to constitute them members of the employer’s work force within the meaning of the Law. However, we do not agree with his conclusion that the "establishment" in which they worked was the central garage and office. Each of the Bronx job sites was a separate "establishment." It is immaterial that claimants reported daily to the central garage and office where they received their work assignments and they drove the empty trucks from the garage to the locations assigned and returned the empty trucks to the garage at the end of the day. Since they had performed most of their work at the job sites, prior to the industrial controversy which occurred there when the operating engineers struck and picketed, we conclude that these job sites were the "establishments" in which claimants were employed, and that each claimant is subject to the suspension of benefits provided by Section 592.1 of the Law, since he lost his employment because of an industrial controversy in the "establishment" in which he was employed.

The initial determinations of the local office are sustained. The decision of the referee is reversed. (January 4, 1968)

COMMENTS

The claimants in the here reported cases performed a substantial portion of their work at the construction sites, which were held to be the "establishment." A different result would obtain if claimants, such as truck drivers, airplane crews, deliverymen, etc. report at a fixed location but thereafter move from place to place, without any such place being a center for their work. In such instances, the "establishment" would be the fixed location where they report for work and receive assignments.

 

A-750-1692

Index No. 1460 B.6

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

January 29, 1968

INTERPRETATION SERVICE – BENEFIT CLAMS
TOTAL UNEMPLOYMENT
Vacation Pay

Referee Case Number 45-78-67

PAID HOLIDAY FALLING WITHIN VACATION PERIOD

A paid holiday falling within a "paid vacation period" (Section 591.3) does not extend such vacation period.

Referee’s Findings of Fact: A combined hearing was held at which representatives of the claimants, the employer and the Industrial Commissioner and a witness for the Commissioner appeared and testified.

By initial determinations claimants were ruled ineligible from July 5 through July 18, 1967, on the ground that such period was a vacation period for which no benefits were payable. Claimant R.Z., was ruled overpaid $12.75 in the statutory week ending July 30, 1967, which was held non-recoverable.

Claimants, office workers, performed services for the employer on July 3, 1967, and were paid holiday pay for July 4. The plant was closed for vacation from July 3, through July 30 and operations resumed July 31. The contract between claimants union and the employer is silent as to the time set aside for vacations, and the employer posted notices on bulletin boards stating in part "The 1967 vacation shut down…will be from July 3^rd, 1967, through July 30^th, 1967…. There will be maintenance and repair operations necessary during the vacation period and employees in these departments will schedule their vacations with their supervisors." Claimants received two weeks vacation pay but the specified period covered by the payment was not designated by the employer. Claimants contending that their vacation pay coincided with the first day of the plant shut down, July 3. The Industrial Commissioner took the position that benefits were not payable for two weeks following the paid holiday, July 4.

Article VIII(b) of the union contract provides: "Any employee…on the payroll as of May 1^st of the vacation year who was employed prior to July 1^st of the prior year, shall be entitled to two (2) weeks vacation with pay."

Subdivision (g) provides: "The vacation period will be determined by Management except for those employees whose services are required by the Company during the above period. The Company will arrange for vacation…to be taken…on consecutive days between May 1^st, and December 31^st of the vacation year…."

Subdivision (h) provides: "If a holiday falls within an employee’s vacation he shall receive the holiday pay."

Referee’s Opinion and Decision: Section 591.3 of the Unemployment Insurance Law provides in part: "…No benefits shall be payable to a claimant for any day during a paid vacation period, or for a paid holiday, nor shall any such day be considered a day of total unemployment…."

Claimants claim by implication that they were not on vacation for two weeks following July 4, but their vacation pay started on July 3 and they should be ruled ineligible only through July 16 not July 18; that is, they were actually on vacation two days less than two weeks although they received vacation pay for the full two weeks.

The bulletin states that the plant would be shut down for vacation from July 3 to July 30 and does not specify the start of vacations for various individuals. But, significantly, provision is made for those employees who would be required to work: they would schedule their vacation with their supervisors. This could only mean that their vacations would be on days other than days of employment. This is fully in accord with the provisions of the union contract that those whose services are required during the vacation period will be given vacations arranged by the employer on consecutive days between May 1 and December 31. I find therefore, that it was the intention of the parties that vacation periods be exclusive of days of employment and that therefore, July 3 was not in the vacation period.

The situation with respect to July 4 is quite different. The union contract specifically provides that an employee shall receive holiday pay if the holiday falls within an employee’s vacation. There is nothing in the law in contravention of this stipulation and it should be recognized as binding.

The paid vacation period should be allocated to the first two weeks of unemployment in the plan shut down period, that is from July 4 through July 17.

The initial determinations are modified to be effective from July 4 through July 17 and as modified are sustained. Claimant R.Z., was not overpaid. (December 17, 1967)

 

A-750-1693

Index No. 2030A-1

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

January 31, 1968

INTERPRETATION SERVICE – BENEFIT CLAIMS
BENEFITS UNDER SECTION 599
Employment Opportunities

Appeal Board Case number 141,616

SECTION 599 ELIGIBILITY: EMPLOYMENT OPPORTUNITIES IMPAIRED – DOMESTIC DUTIES

Domestic responsibilities which affect a claimant’s ability to adhere to a particular work schedule are included in the personal factors and circumstances to be taken into account in determining under Section 599 whether employment opportunities for the claimant are impaired.

Appeal Board Decision

The Industrial Commissioner appeals from the decision of the referee filed September 11, 1967 (1) overruling the initial determination of the local office holding claimant eligible to receive benefits effective February 9, 1967 without disqualifying conditions, on the ground that she was in regular attendance in a vocational training course which was duly approved pursuant to Section 599 of the Law, and sustaining the objections of the employer, on the ground that the said approval was improperly made by the Industrial Commissioner, and (2) ruling that claimant was ineligible to receive benefits effective February 9, 1967, on the ground that she was not available for employment and that she was overpaid in benefits, the amount of which, and its recoverability is to be ascertained by the insurance office.

Findings of Fact: Claimant was last employed by the employer herein for a period of five years to January 6, 1967. Claimant was laid off due to a reorganization whereby her job was eliminated. Initially, claimant was hired as a switchboard operator, and at the time of the termination of her employment she was in a commercial planning department of the firm, performing many specialized services having to do with the printing business. Claimant’s terminal salary was $84 a week.

The claimant had requested approval for vocational training under Section 599 of the Law in the occupation of beauty operator. Claimant’s aptitude for the work of a beauty operator was tested and it was found that she did have such aptitude. The claimant advised the counseling services that she had a domestic situation, which would make it somewhat difficult to adhere to the usual work schedule from 9 a.m. to 5 p.m., in an office job. The claimant claimed that she would have more control over her working hours as a beauty operator, than in working in an office and in this way she could better handle her domestic responsibilities. The employment service, after taking all of these various factors into consideration approved claimant’s application to take vocational training. Commencing February 9, 1967, claimant was enrolled in regular daytime attendance at a State approved Vocational School, where she was taking a course as a beautician.

The employer objected to the approval of claimant’s application for this vocational training, contending the approval of the Industrial Commissioner was improper and that claimant should be ruled unavailable for employment while attending school. The referee overruled the initial determination stating that the claimant’s opportunities in the field in general must be considered, without considering the individual’s opportunities or other factors involving the individual requesting permission to take the vocational training course.

Opinion: The sole issue in this case, is whether the Industrial Commissioner’s approval of claimant’s application for vocational training was valid under Section 599 of the Law. This Section provides the following:

"Vocational training; preservation of eligibility. Notwithstanding any other provision of this article, a claimant shall not become ineligible for benefits because of his regular attendance at a vocational training course, or at a course in basic education skills, which the commissioner has approved and continues from time to time to approve for the claimant. The commissioner shall give due consideration to existing and prospective conditions of the labor market in the state, taking into account present and anticipated supply and demand regarding the occupation or skill to which the training course relates, and to any other relevant factor. However, in no event shall the commissioner approve such course for a claimant unless

"(a) employment opportunities for the claimant are or may be substantially impaired because of

"(1) existing or prospective conditions of the labor market in the locality or in the state or reduced opportunities in his occupation or skill; or

"(2) technological change, plant closing or plant removal, discontinuances of specific plant operations, or similar reasons

"(3) limited opportunities for employment throughout the year due to the seasonal nature of the industry in which he is customarily employed; or

"(4) the claimant’s personal traits such as physical or mental handicap;

"(b) the training course relates to an occupation of skill for which there are, or are expected to be in the immediate future, reasonable employment opportunities in the state:

"(c) the training course if offered by a competent and reliable agency; and

"(d) the claimant has the required qualifications and aptitudes to complete the course successfully."

(Section 599 as last amended by L. 1966 CH 88 effective March 29, 1966).

The employer contends that the approval of claimant’s application was improper, since it did not fall within the frame-work of the legislative provisions, in that there must be a substantial impairment of job opportunities in claimant’s occupation for any of the specified reasons enumerated in the Statute in order to support an approval for vocational training. These reasons are almost exclusively limited to factors, which specifically affect employment opportunities in the field in general, as opposed to any one individual’s opportunities. Also, the employer contends that it was incorrect to take into consideration claimant’s domestic problems, since that is a personal element which is not one of the excepted conditions under Section 599 of the Law.

The Industrial Commissioner urges that the Law, as amended, concerns itself specifically with an individual’s factors and opportunities, rather than with the conditions in the occupation in general. The Law, as originally enacted, provided that the Commissioner might not approve such a course for a claimant, unless "(a) Employment opportunities for which the claimant is fitted by training and experience, are or may be substantially impaired because of…". In the present Law, after the last amendment, this statement reads as follows: "Employment opportunities for the claimant are, or may be substantially impaired because of …".

It is significant that the legislature found it necessary to amend the statute in question and in so doing, relied on the Legislative memorandum which was submitted in support of the bill, and discussed the problem in the following statement:

"Another obstacle to the approval of a training course, is the provision in the present Law, that there must be a substantial impairment of employment opportunities for "opportunities for which the claimant is fitted by training and experience". This is an objective test, which does not take any personal circumstances of the claimant into account, such as a physical or mental handicap.

There may be no impairment of opportunities in the claimant’s occupation, but he is not equipped or no longer equipped to work in that occupation. It is, furthermore, a test, which cannot easily be applied to the unskilled worker, and is inconsistent with the aim of achieving for each worker employment at his highest obtainable skill." (underscoring added).

Based on the foregoing, we are in accord with the position taken by the Industrial Commissioner. We are of the opinion that it was the intent of the Legislature in amending the Law to concern itself specifically with an individual’s factors and opportunities, as well as those in the field in general. The program under Section 599 of the Unemployment Insurance Law as amended in March 1966 was geared for individuals such as the claimant in this case. The Industrial Commissioner is charged with the responsibility of carrying out the provisions of this Section, and after careful investigation, taking into consideration all relevant factors as authorized by this statute, approved claimant’s application to take this vocational training. It has not been shown that the action taken by the Industrial Commissioner was either arbitrary, capricious or that he abused his discretion. There is no reason therefore why the judgment of the Industrial Commissioner should be disturbed in this case.

Decision: The initial determination of the local office holding claimant eligible to receive benefits effective February 9, 1967 without disqualifying conditions on the ground that she was in regular attendance in a vocational training course which was duly approved pursuant to Section 599 of the Law is sustained and the objections of the employer thereto are overruled. The initial determination of the local office approving claimant’s application under Section 599 of the Law, sustained. The decision of the referee is reversed. (January 5, 1968)

COMMENTS

Section 599 was amended in 1966 to provide that consideration be given to whether employment opportunities for the claimant are or may be impaired, thus substituting a subjective test, concentrated on the person of the claimant, for an objective test, concentrated on his occupation.

In the present decision the Appeal Board has indicated that in applying the above test the Industrial Commissioner in evaluating "the claimant’s personal traits" is not limited to a "physical or mental handicap" in the conventional sense but may take into account other personal factors and circumstances affecting the claimant’s employment opportunities.

 

A-750-1696

Index No. 1105D-1
1205D-3
1605D-4

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

July 11, 1968

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Disqualification, Termination of

Appeal Board Case Number 144,502

VACATION PAY NOT USED IN TERMINATNG DISQUALIFICATION

Vacation pay is not usable in terminating a disqualification since it is not "subsequently" earned remuneration.

Referee’s Decision: The initial determination of the local office holding that the prior disqualification imposed against claimant for refusing employment without good cause was not terminated by claimant’s subsequent receipt of vacation pay is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a truck driver, was disqualified from receiving benefits effective February 3, 1967, because of refusal of employment without good cause. He had no employment between February 3, 1967 and February 20, 1967. During the period from February 20,1967, through March 3, 1967, he received vacation pay in the sum of $364.80. This vacation pay was payable under a union contract between the union and claimant’s employer. Claimant conceded that the receipt of the vacation pay rendered him ineligible to receive benefits for that period because it was paid vacation period for which no benefits are payable.

Appeal Board Opinion and Decision: It is contended on behalf of claimant that the pay which he received for the period from February 20 through March 3, which had been the designated paid vacation period, terminated the disqualification resulting from his refusal of employment on February 3 notwithstanding that, admittedly, he performed no work subsequent to February 3. He maintains that because the vacation pay constitutes remuneration as defined by Law, it follows that he had sufficient remuneration after February 3 to terminate the disqualification and, additionally, that because the receipt by him of such vacation payment necessarily precluded his eligibility for benefits during that period, he must be deemed to have been not totally unemployed in that period and hence employed. We see no merit to the contention so advanced by claimant.

Section 593.2 of the Law provides that a disqualification resulting from a refusal of employment without good cause shall remain effective "until he (claimant) has subsequently worked in employment on not less than three days of each of four weeks or earned remuneration of at least $200." (Underscoring supplied.) The clear intent of the statute was to continue the disqualification of the claimant who refuses employment without good cause until he obtains re-employment which produces the minimum requirement either in time of money as set forth in the statute. It could not have been contemplated that the mere receipt by such a claimant of a payment for a designated period in pursuance of a contractual arrangement with his prior employer could be used to satisfy the purpose sought to be accomplished by the statute. In essence, the statute is a recognition of the fact that because of the refusal of employment without good cause, the unemployment which thereafter ensues is no longer attributable to no fault of the claimant, and that, consequently, the claimant should not be entitled to benefits until other employment for a minimum time, or which produces minimum remuneration, would result in a new period of unemployment after such subsequent employment terminates. We think that this is evidence when significance is given to the word "subsequently" which is included in the statute. In our view, to effectuate the purpose of the statue, the pertinent clause must be read as "until he has subsequently * * * earned remuneration of at lease $200."

The vacation payment which, claimant received was not earned by him subsequently to February 3 the date of his refusal of employment. The payment resulted from the services he had performed prior to February 3. The ineligibility during the designated vacation period for which he received the vacation payment did not result from his employment within the statutory definition of that term, but the ineligibility resulted from a specific statutory mandate which provides that no benefits shall be paid for such period (Section 591.3). The fact that the statute provides that no paid vacation day shall be considered a day of total unemployment does not necessarily require that the converse be accepted; namely, that a paid vacation day should be considered a day of employment. Thus, in an analogous situation, we held that a vacation payment was not to be included as "compensation" in determining whether claimant was paid aggregate compensation in an amount would preclude his accumulation of effective days for eligibility under Section 523 of the Law. (See Appeal Board 100,956A and 124,517.) We believe that the same criteria must be applied in the instant case and we therefore conclude that, notwithstanding the receipt by claimant of vacation pay of more than $200 for a period subsequent to February 3, 1967, he did not subsequently earn remuneration of at least $200, and that, therefore, the disqualification effective February 3, 1967, remain in effect and was not terminated.

The initial determination of the local office is sustained. The decision of the referee is affirmed. (July 3, 1968)

 

COMMENTS

1. The here reported principle was previously applied only to those instances where claimant elected to receive the payments in two or more installments, in lieu of a pension for life or in lieu of regular monetary payments for an extended number of years. The principle is now extended to claimants electing to receive single payments.
2. This rule supersedes contrary information previously given.

Specifically, the following items should be marked obsolete:

a.       "Comments" of release A-750-1653.

b.       Second and Third sentence in item "2"and "3" of "Comments" in release A-750-1625.

c.       Special Bulletin A-710-44 (Rev.), item C-1 (page 3).