Index No. 1605B-4
1640C-4
1675.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August 20, 1968
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Desire for Different Work
COURT OF APPEALS DECISION
Matter of Gregory Lungarelli, 22 NY 2d 394
VETERAN’S FAILURE TO EXERCISE
RE-EMPLOYMENT RIGHTS – NO DISQUALIFICATION
A veteran, although he has
reinstatement rights under the Universal Military Training and Service Act,
does not voluntarily leave his employment when he fails to apply for his
former job and, therefore, cannot be disqualified for that reason.
Claimant, Gregory
Lungarelli, on March 6, 1964, when he was then but seventeen years of age, left
his position as a $64 per week messenger with a stock brokerage firm in New
York City and entered the United States Army. Assigned to Viet Nam, he served
as a combat machine gunner in the airborne infantry. He was honorably
discharged from the Army three years later, on March 10, 1967.
Following expiration of his
terminal leave, claimant filed for unemployment compensation benefits pursuant
to the Ex-Servicemen’s Compensation Act of 1958 (5 U.S.C. §8521). This statute
provides that military service constitutes "Federal Service" and that
the pay and allowances received by persons in the military constitute
"Federal Wages." Its effect is to bring discharged servicemen within
the ambit of Federal legislation making other classes of former federal
employees eligible for state unemployment compensation (see 5 U.S.C. §8501 et
seq.), "in the same amount, on the same terms, and subject to the same
conditions" as if their federal service and wages had been employment and
wages under state law (5 U.S.C. §8502).
Claimant’s application for
benefits was denied, on the ground that, as claimant had not been fitted by
education or training, either before or during his military service, for any
particular civilian occupation or trade and as claimant was unwilling to return
to work for his former employer (now at $70 per week rather than the former $64
per week), which position had, pursuant to another Federal statue (50 U.S.C.,
Appendix, §459) to be made available to him, he must, for purposes of
determining his eligibility for benefits under section 593 of our Labor Law, be
deemed to have "voluntarily separated" himself without good cause
from his last employment (see Labor Law, §593, subd. 1). This determination has
been upheld through the various administrative appellate proceedings and in the
court below.
This utilization of the
latter Federal statue, 50 U.S.C. Appendix §459, in the strained fashion that it
has been interpreted here, as the basis for a finding that claimant voluntarily
left his last employment, seems entirely unwarranted, but even if the statute
had been utilized, as would at least have been more reasonable, as the basis
for a finding that he had unreasonably refused available employment and
therefore was not entitled to benefits (see Labor Law, §593, subd. 2), this
would still seem a wholly impermissible construction of the statute, enabling
to be used to defeat another, separate benefit Congress sought to confer upon
newly separated servicemen, namely that they be allowed "to adjust to
civilian life and civilian jobs ***by providing unemployment insurance
comparable to the benefits available to other unemployed workers***"
[Senate Report No. 2375 (1958), reprinted in 1958 U.S. Code Congressional and
Administrative News, 4318,4320).
50 U.SC., App. §459
represents a comprehensive effort by Congress not merely to guarantee returning
veterans that their old jobs will, if they are still qualified to fill them, be
available to them on their return from service but also, where possible, to
assure them re-employment at the seniority and income level they would have
enjoyed had they not left their employment to enter military service (50
U.S.C., Appendix §459, subsec. (c)(1); Tilton v. Missouri Pac R. Co.,
376 U.S. 169). In this statute it is expressly declared to be the "sense
of Congress" that a person who is restored to a position in accordance
with its terms "should be so restored in such manner as to give him such
employment continuously from the time of his entering the armed forces until
the time of his restoration to such employment" (50 U.S.C., Appendix,
§459, subsec. (c)(2). "The principle underlying this legislation is that
he who is ‘called to the colors [is] not to be penalized on his return by
reason of his absence from his civilian job’" (Tilton v. Missouri Pac.
R. Co., 376 U.S. 169 supra, at 170,171, quoting from Fishgold v. Sullivan
Drydock & Repair Corp. 328 U.S. 275, at 284). The present statute goes
back to the Selective Training and Service Act of 1940 (54 Stat. 885) and
constitutes an attempt to make generous provision for ex-servicemen whose job
careers have been interrupted by military service. However, as is obvious, such
opportunity to obtain re-employment at his old job, assuming the veteran was
employed when he entered the service, is of differential value to different veterans,
depending upon the particular employment they had when they entered the armed
forces. Most especially is this apparent with those many returning servicemen,
such as the claimant here, who entered military service at a very young age
from civilian employment which was most fit for a teenager rather than a mature
adult, at low pay and with no foreseeable prospects for advancement with such
former employer. These veterans return to civilian life, having devoted to
military service those years when a young man would normally have been either
completing his education or at least establishing himself in a trade or other
occupation, without the training or skills necessary for ready absorption into
the civilian labor market. This is not to say, however, that they may not be
fitted into civilian life at a level more appropriate to their age and
abilities than their former employment. They must, if at all possible, be given
the opportunity to readjust to civilian life and find civilian employment
commensurate with whatever training, experience and added maturity they may
have gained through their military service and this seems to have been
precisely what Congress had in mind when in 1958 it enacted the Ex-Servicemen’s
Unemployment Compensation Act. It seems inconceivable, then, that we should
hold that Congress, when it enacted this later legislation, intended that the
earlier legislation, designed merely to protect the Veteran’s right to
re-employment in his former occupation, operate as a bar to the veteran’s receiving
unemployment compensation under the 1958 act in the event that he did not wish
to return to his old job. This simply turns what was intended to be a shield to
protect the veteran into a sword to deprive him of rights sought to be
guaranteed him under another beneficent Federal statute. It seems manifest,
then, that where, as here, the only showing the Industrial Commissioner can
make to justify the denial of benefits to a veteran claiming unemployment
compensation benefits pursuant to the Ex-Servicemen’s Unemployment Compensation
Act is the veteran’s refusal of his old job and no other, such
determination must be reversed. This is all that has been shown here and on
this ground alone we would reverse and remand the matter to the Commissioner.
In addition, however, even
granting for the sake of argument the propriety of utilizing a veteran’s
re-employment rights under 50 U.S.C., Appendix, §459 as the basis for a finding
that the veteran unreasonably refused available employment and was therefore
ineligible under state law for unemployment compensation, on the record before
us it seems clear that respondent’s denial of claimant’s application for
unemployment benefits was at the very least premature, if not erroneous. This
determination was, as indicated earlier, based on the claimant’s admitted lack
of specialized civilian training or skills as well as upon the availability of
his former job, for which, it was concluded, he was "fitted" by such
lack of training or skills. This conclusion was founded, however, at least as
far as the record reveals, solely upon the twenty year old claimant’s own very
candid self-appraisal of the value of his military training to civilian life
and civilian occupations and no attempt was made to secure a professional
evaluation as to how claimant’s added maturity and experience might perhaps be
utilized to find him a better position that which he had left to enter military
service. Nor was any effort made, as far as the record reveals, even to contact
the Veterans’ Administration job counseling services, to which claimant has
gone for counseling and testing in connection with his pursuit of a better job
than that which he had left to enter the Army – this in the face of claimant’s
disclosure to the hearing referee that he had contacted the Veterans
Administration but had no as yet heard from them. This amounts, very simply, to
a complete failure on the Industrial Commissioner’s part to make an adequate
showing that claimant "refuse(d) to accept an offer of employment for which
he (was) reasonably fitted by training and experience." (Labor Law,
§593, subd. 2, pertaining to "refusal of employment" a standard,
which also obtains with respect to "voluntary separations" under
subdivision 1 of §593, Emphasis supplied.) It was based solely on claimant’s
lack of training and made no provision or allowance for any beneficial effect
that claimant’s military experience might have had on his ability to obtain or
hold civilian employment and no attempt was even made to consider or investigate
this factor (which, on a very mundane, practical level must have had some
value, if for nothing more than the fact that claimant by reason of his past
military service would now not be subject to the draft, assuring any new
employer that claimant would not be drafted out of any training or
apprenticeship program in which such employer might wish to enroll him). The
exclusion of this factor from consideration of whether claimant unreasonably
refused available employment is sufficient, in our view, to warrant reversal of
the order below and remand of this matter of the Industrial Commissioner for
further consideration.
For the reasons given above
the order appealed from should be reversed and the matter remanded to the
Industrial Commissioner for further hearing to consider claimant’s eligibility
for unemployment compensation benefits. (July 5, 1968)
COMMMENTS
- This decision outlaws a principle of long standing.
However, although a veteran under the circumstances here described is not
disqualified for voluntary leaving employment, a disqualification is not
automatically ruled out if he refuses the employer’s offer of
reinstatement or refuses to accept a referral to his former job.
If
a disqualification for refusal of employment is then considered, it must be
supported by all the usual elements as in any other refusal. Moreover, as
stated by the Court, veterans must "be given an opportunity to readjust to
civilian life and find civilian employment commensurate with whatever training,
experience, and added maturity they may have gained through their military
service."
It
would further appear that no disqualification for a job refusal upon discharge
from the armed forces should be issued unless full consideration was given to
claimant’s counseling and testing in connection with his pursuit of a better
job than that which he had left to enter the army." Services are provided
for this purpose in all office of the Employment Service. Insurance Offices
should give full consideration to the evaluations made by the Employment
Service and, if a hearing is requested from a refusal disqualification in such
instances, include in the case folder documentation of the services rendered
and evaluations made by the Employment Service.
Index No. 905-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
October 24, 1968
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMNATION OF BENEFITS
Experience Rating Charges
Appeal Board Case Number 147,105
EXPERIENCE RATING CHARGES; QUIT TO
ATTEND VOCATIONAL TRAINING
If a voluntary quit to
attend vocational training is held to be with good cause because Division of
Employment representatives who approved the training failed to advise the
claimant of the possible consequences of such leaving, the account of the
employer involved in the quit is not charged with the resulting payment of
benefits.
Referee’s Decision: The initial determination of the
local office holding claimant eligible to receive benefits, effective February
5, 1968, without disqualifying conditions is overruled. The employer’s
objections to the payment of benefits to claimant on the ground that he
voluntarily left his employment without good cause, are sustained.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, classified as a kitchen
helper, filed an original claim for benefits effective February 5, 1968 and
thereafter received eight benefit payments through April 7, 1968. He is age 29
and had two years of college education in the foreign country from which he
immigrated to the United States. He has worked in this country in hotels for
several years in unskilled jobs such as kitchen helper and dishwasher. He was
laid off from each of his last two hotel jobs and his prospects for employment
in such work were poor.
Since 1964, claimant has
applied on various occasions to the employment service for training for various
skilled or technical jobs. He was tested and found qualified for a number of
courses over a period of several years and although certified therefore, each
of the courses was cancelled. In the interim, claimant sought and obtained work
of whatever kind was open to him. In the fall of 1967, claimant again applied
to the employment service for a training course, this time in the occupation of
offset printer. He was recommended for the course on November 29, 1967 and his
application was approved on January 30,1968. He started the course on February
5, 1968 and completed it at the end of six weeks.
At no time was claimant advised
or warned by a representative of the Division of Employment that leaving a job
to take such a training course could affect his benefit rights. The employment
service did not inquire whether claimant was employed at any time during the
periods in which his applications for the various training courses were under
consideration. Claimant had been working since August 1967 as a bill of lading
clerk for a trucking firm, at $2 per hour for a 40-hour workweek. He left this
job on January 31, 1968, to attend the training course approved by the Division
of Employment.
Appeal Board Opinion and
Decision: Claimant
left his last job to attend a training course approved by the Industrial
Commissioner without ever having been informed by the Division of Employment
that leaving his employment for such purpose would, in and of itself, affect
his claim for unemployment insurance benefits. He believed that in accordance
with the provisions of Section 599 of the Law he would receive benefit payments
while engaged in this training course. Under these circumstances, we conclude
that claimant left his employment with good cause and that pursuant to the
provisions of Section 599, he was available for employment while taking the
approved training course (See Appeal Board 140,502).
However, the employer has a
valid objection to being charged with the benefits paid to claimant. Had the
Division of Employment ascertained whether claimant was employed at the time
his application for training as an offset printer was under consideration, and
had claimant been advised and counseled as to the possible consequences of
leaving employment to take a raining course, claimant may have been subject to
disqualification for a voluntary leaving of employment without good cause and
not entitled to any benefits. In such event, the benefits paid to him would not
be chargeable to this employer’s account. The Industrial Commissioner agrees
that in such a situation the benefits paid to claimant should not be charged to
the account of the employer. The Law provides that the general account within
the unemployment insurance fund shall be debited with "all monies paid to
claimants which should not have been charged or are not chargeable to any
employer’s account" (Section 577.1(b)(4)). According, the benefits paid to
claimant herein should be charged to the general account and not to the account
of the employer herein (see Appeal Board 96087).
The initial determination
of the local office is sustained. The benefits paid to the claimant are not
chargeable to the employer’s account. The decision of the referee is reversed.
(October 14, 1968)
COMMENTS
- Division representatives failed to inform the claimant
of the possible consequences of his quit. This advice is required by
current procedures, which may be found in Field Operations Manual II 6056;
II 22620D; III 6227G,1,c and III 27342D. The importance of these
procedures is emphasized by the here-reported case.
- The principle that an employer’s account may not be
charged with benefits properly paid where claimant’s eligibility can be
traced to improper action by local office staff was established by A.B.
96,087, cited in the instant case and reported at A-750-1587. There the
local office failed to act on information from a base period employer that
he had work available for the claimant. That reasoning is now extended to
cases where payment of benefits results from failure to advise claimants
properly when approving vocational training for them.
Index No. 845-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 6, 1968
INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS & REPORTING
Predating
Appeal Board Case Number 146,887
FAILURE TO FILE; VISIT TO EMPLOYMENT
SERVICE INSTEAD
A claim is predated to day
of registration at the Employment Service office if the claimant was unaware of
his rights and that office failed to question and inform him regarding the
filing for unemployment benefits.
Referee’s Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective February
17 through February 25, 1968, on the ground that he failed to comply with
registration requirements, and denying his request to predate his claim for
benefits to February 17, 1968, is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, a bookkeeper, was
employed by a trucking company from September 1, 1966 to February 16, 1968, at
which time he was laid off.
Claimant is 68 years old, a
leg amputee and a fairly recent immigrant who became a citizen in April 1968.
Prior thereto claimant was under the impression that he could not file a claim
for unemployment insurance benefits because he was an alien and for other
reasons none of which would have prevented him from receiving benefits.
Therefore claimant concluded on February 19, 1968, that the only thing he was
eligible to do was file for employment at the employment office which he did.
He was instructed to return to the employment office on February 21, at which
time he was given several job referrals. However, the employment office did not
inquire if claimant was aware of his right to file a claim for benefits.
Claimant filed a claim for benefits effective February 26, 1968. He received an
information booklet and realized for the first time that he should have filed
his claim in the preceding week. Claimant then requested that his claim for
benefits be predated to February 17, 1968 but the local office denied the
request.
Appeal Board Opinion and
Decision: The
credible evidence establishes that claimant was unaware of his right to file a
claim for benefits during the period in issue. It was incumbent on the
employment office, when claimant did not present insurance identification
papers, to inquire into the matter and advise him of his right to file a claim
for benefits; and also to specifically advise claimant that an application for
employment does not constitute a claim for benefits which can only be filed in
the local office in accordance with the procedures for serving benefit
applicants outlined in the Field Operations Bureau Manual (Vol. II, par.
16035). In the Matter of Horowitz, 271 App. Div. 765 aff’g Appeal Board
12,485, the claimant was also unaware of the provisions of the Law, and when
she advised the local office of her earnings in 1944, she was not informed of
her right to file a claim for benefits based thereon. The Court recognized the
Board’s right to predate claimant’s claim for benefits, to the commencement of
her unemployment; and stated "we see no valid reason for interference with
this administrative interpretation and application of a purely social
statute."
The facts herein afford a
reasonable basis to excuse claimant’s inadvertent failure to comply with
registration requirements from February 17 through February 25, 1968. However,
his claim for benefits should be predated to Monday, February 19,1968, and not
February 17.
The initial determination
of the local office is overruled. The decision of the referee is reversed.
(October 16, 1968)
COMMENTS
FOB Procedures (II 16035)
require the Employment Service to question and inform applicants without U.I.
identification regarding the filing of a claim for benefits. This decision
holds that failure to comply with this requirement results in the predating of
a benefit claim filed thereafter by a claimant who was unaware of his rights.
Therefore, if a claimant in
connection with a request for predating contends that he had registered with
the Employment Service but was not advised regarding the filing of a benefit
claim, and that he was not aware of his rights to unemployment benefits or of
the methods for asserting them, his contentions should be verified.
If it is found that his
contentions are correct, the claim should be predated accordingly. If they are
not correct, evidence leading to that conclusion should be documented. The
later may include instances where the claimant had past experience with the
filing of benefit claims.
Index No. 1215B-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 8, 1968
INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Attitude and conduct
APPELLATE DIVISION DECISION
Matter of Henry Zimmerman
STATEMENTS CALCULATED TO DISCOURAGE
HIRE
If a claimant makes
statements calculated to discourage an offer of employment, which would
otherwise have been made, such action constitutes refusal of employment.
DECISION
Appeal is taken by claimant
from a decision of the Unemployment Insurance Appeal Board which (1)
disqualified claimant from benefits on the ground that he refused employment
without good cause (Labor Law, Section 593, subd. 2) and (2)imposed a
forfeiture of 20 effective days in reduction of claimant’s future benefit
rights, upon finding that claimant willfully made a false statement to obtain
benefits (Labor Law, Section 594).
The evidence was in sharp
conflict and the board chose to accept that adduced from the employment
interviewer H___ and from the prospective employer to whom claimant was
referred, as against that of the claimant himself; and it was, of course,
within the board’s province to determine the factual issues including all
questions as to the credibility of the witnesses. [Matter of Spack (Corsi),
305 N.Y. 753; Matter of Stubl (Catherwood), 30 A.D. 2d 595.]
The precise substantive
issue has not been previously determined by a New York court, involving, as it
does, not an explicit rejection of an offer of employment but, rather, an
indirect refusal thereof. This was accomplished by claimant’s discouraging an
offer of employment which, according to the prospective employer, would
otherwise have been extended. Some support may be found in the good-faith test
once suggested by us, in dictum, that, "The feasible and sensible test is
whether, when a job is physically taken, it is accepted in good faith or
whether its acceptance is merely a mask for refusal" [Matter of
Centonze (Corsi), 1 A.D. 2d 525]; a refusal of a job offer through subterfuge
was held to have disqualified a claimant in a 1942 case decided by the board
(Appeal Board #7602-42); and there is authority in point in a number of other
jurisdictions [see, e.g., Czarlinsky v. Employment Security Agency,
87 Idaho 65; Lowell v. Maine Employment Security Comm., 159 Me.
177; Barley v. Maryland Dept. of Employment Security, 242 Md.
102; Corrado v. Director of Division of Employment Security, 325
Mass 711; Bradley v. Unemployment Compensation Bd. Of Review, 198
Pa. Super. Ct. 356; Weiland v. Unemployment Compensation Bd. Of
Review, 167 Pa. Super. Ct. 554; and. Also 55 Yale L.J. 134,
137-138(19145)].
In this case there was
proof that claimant hesitated about accepting the job referral and agreed to
the job interview only after being told that his rejection thereof would have
to be reported to the insurance section; that claimant told the prospective
employer that he was not qualified for the job, that if he should be hired he
would foul up the job and would unionize the employer’s small plant, and that
for seven years in another employment he was a union official, sitting at a
desk looking at the window. Upon accepting this evidence, the board was
warranted in its findings "that claimant discouraged the employer from
hiring him *** knew that his statements would discourage the employer from
hiring him (and (I)n effect *** refused the job to which he was referred."
After finding that the
prospective employer’s version of the interview was correct, the board was, of
course, justified in finding, as it did, that claimant’s denials of the
statements attributed to him by the employer were false and willfully so, and
were made to avoid disqualification from benefits.
The decision should be
affirmed, without costs. (December 22, 1968)
COMMENTS
- By this decision the Court has affirmed that a claimant
refuses employment when he makes statements to a prospective employer in
order to discourage hire, even though he does not explicitly reject a job
offer. In this case the claimant told the employer that he was not
qualified for the job, that if he should be hired he would
"foul" it up and would unionize the plant.
- Appeal Board case #7602 cited herein is reported at
Index 1230A-1 (A-750-360. It concerned a sewing machine operator who told
a prospective employer the job was too far from home and since she had no
experience on sportswear, it would be embarrassing to her to sit among
girls as a learner. The Board found that "while claimant did not
express terms say that she did not want the job, she clearly indicated to
the employer that she did not wish to be hired."
- Another type of statement which discourages an offer is
one indicating that the claimant does not intend to remain on the job very
long.
For
example, when a claimant gratuitously informed an employer to whom she was
referred that she was not interested in that type of work but would accept it
and leave as soon as she found a job in the field in which she preferred to
work, resulting in employer’s refusal to hire on this condition, the Appeal Board
held that claimant’s attitude was tantamount to a refusal of suitable
employment without good cause. (A.B. 35,368).
In
another case an offer of referral was withdrawn when claimant informed the
employment interviewer that she would tell the prospective employer that she
was waiting for her former employer to recall here, in which event she would
leave. Since in truth she was on indefinite layoff with no certainty of ever
being recalled, the Appeal Board held that claimant’s actions were tantamount
to a refusal of employment without good cause. (A.B. 92,194).
- It should be noted that not every statement, which
causes non-referral or non-hire, is necessarily made for that purpose.
Thus, a claimant who has a definite prospect of other employment and
discloses this fact to the employment interviewer and the employer,
leaving them to decide whether or not the offer remains open, cannot be
charged with having refused employment without good cause if the
disclosure discouraging referral or hire.
- In the above cases in which a disqualification for
refusal of employment without good cause was imposed, the claimant
discouraged hire by his statements to the prospective employer. The same
conclusion could be reached if the claimant discouraged hire by his
actions rather than his words; for example, appearing at the job interview
intoxicated.
Index No. 1450-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
December 2, 1968
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Work without compensation
Appeal Board Case Number 146,813
ASSISTING IN OPERATION OF BUSINESS
OWNED BY SPOUSE
A claimant who renders
substantial services (devoting several hours almost every day and all day
Saturday) assisting in the operation of a business owned by the spouse is not
totally unemployed even though no pay is received therefore.
Referee’s Decision: The initial determinations of the
local office holding claimant ineligible to receive benefits effective September
28, 1967, on the ground that he was not totally unemployed; charging claimant
with an overpayment of $1223.75 in benefits ruled to be recoverable; and
holding that claimant wilfully made false statements to obtain benefits by
reason of which a forfeiture of 80 effective days was imposed as a penalty in
reduction of claimant’s future benefit rights, are sustained.
Appealed By: Claimant
Findings of Fact: Claimant, a plumber’s helper,
worked for M.N. intermittently for 13 years. Either the employer called claimant
whenever he had work for him or claimant would call to inquire about work.
Claimant worked for M.N. on four days in the statutory week ending September
10, 1967 and on four days in the statutory week ending September 17, 1967. He
did not work thereafter until Monday, October 2, 1967 when he worked for M.N.
for four hours. Thereafter, claimant again worked for M.N. on three days during
the statutory week ending October 22, 1967; on two days in the statutory week
ending November 12, 1967; and on two and a half days in the statutory week
ending November 19, 1967. In the statutory week ending October 29, 1967,
claimant worked on three days for D.R., another plumber in the locality.
Claimant last worked as a plumber’s helper on Wednesday, November 15, 1967.
On September 28, 1967,
claimant’s wife purchased a luncheonette, which she operates from 7 a.m. to 6
p.m., six days a week. She usually employed at least one full-time waitress and
a full-time dishwasher. Claimant’s wife actively manages this business. Since
the business was acquired, claimant has assisted his wife, almost daily during
the week and all day on Saturdays, in the operation of the business. He spends
several hours at a time, helping to clean up, wash dishes and making himself
generally useful in the luncheonette. He does not wait on customers nor does he
serve food. He has not been paid for any of such services. Between September 28
and November 15, 1967, claimant worked on those days when there was work
available for him but he, nevertheless devoted some hours after he completed
such work, assisting at the luncheonette. Claimant did not communicate with
M.N. in the spring of 1968 as he had done each spring in the past 12 or 13
years seeking work. Claimant has not worked for any plumber since November 15,
1967. Admittedly he has not been interested in any employment outside of his
wife’s luncheonette at least since the spring of 1968.
Admittedly, claimant has
devoted several hours almost every day during the week and every Saturday, in
assisting his wife in the operation of her luncheonette business.
Claimant filed an original
claim effective September 18, 1967 and received 23 benefit payments thereafter,
through March 31, 1968, totaling $1223.75. Each week when he certified for
benefits claimant stated that he had done no work on any of the days for which
he claimed benefits and that he was available for employment. At no time prior
to April 11, 1968 did claimant disclose to the Division of Employment that he
had rendered services to his wife in her luncheonette while he received
benefits.
Appeal Board Opinion and
Decision: The
credible evidence now before the Board establishes that claimant rendered
substantial services to his wife in the operation of her luncheonette business,
almost daily during the week and on Saturdays, continuously since she commenced
the operation of that business on September 28, 1967. Even though he was not
paid therefore, and notwithstanding that he may have been willing during a part
of the period in issue, to engage in other employment in his regular
occupation, claimant was not totally unemployed at any time on and after the
effective date of the initial determination.
Our decision is in no way
based upon the vague and frequently inconsistent testimony of the
representative of the employer M.N. Claimant has admitted that he rendered such
services at the luncheonette owned by his wife since she started the business
on September 28, 1967. His own admissions suffice to establish his
ineligibility for benefits. We deem it significant that claimant has not
resumed employment in the plumbing trade since he last worked in that
occupation on November 15, 1967, and that although he now admits to the fact
that he is engaged in the operation of the luncheonette, he further indicates
that his relationship with the luncheonette was no different in the earlier period.
Since claimant lacked total
unemployment during the period in issue, the benefits paid to him constitute an
overpayment, which is recoverable, because he wilfully concealed from the local
office pertinent information regarding his claim by his failure to disclose his
activities at the luncheonette. The failure to disclose such pertinent
information constitutes each weekly certification by claimant a wilful
misrepresentation made to obtain benefits requiring the imposition of the
statutory penalty.
The initial determinations
of the local office are sustained. The decision of the referee is affirmed.
(November 20, 1968).
Index No. 915A-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
December 16, 1968
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Reduction due to pension
Appeal Board Case Number 144,243
INDIVIDUAL ARRANGEMENT FOR
RETIREMENT PAYMENTS
A claimant is subject to
the benefit reduction by pension or retirement payments as provided in Section
600 although such payments are not made under a formal or general plan but
under an arrangement or plan established for the claimant individually.
Referee’s Decision: The initial determination of the
local office ruling that effective December 1, 1967 claimant’s benefit rate be
reduced to zero pursuant to Section 600 of the Law is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, an insurance broker,
worked for more than 40 years for a corporation engaged in the insurance
brokerage business. All of the stock of the employer corporation was owned by
its founder. Claimant was neither an officer nor a stockholder, but he had the
longest period of service with the firm of any employee. For many years, the
principal owner, another employee and claimant each received a salary plus 25
percent of the earnings of the business as compensation for his services.
Admittedly, claimant had no proprietary interest in the business and the
aforesaid salary and percentage payments were in lieu of all commissions. The
principal’s drawings were approximately $25,000 annually besides his percentage
of the earnings of the corporation.
On February 13, 1963 after
a discussion between claimant and the employer with regard to claimant’s
retirement from the employment, the employer summarized the agreement of the
parties in its letter to claimant as follows:
"My
purpose in writing you this letter is to formalize our conversation regarding
your future. We agreed first that you would be relieved of all office duties
beginning February 28, 1963 and that it is the intention of my father and me to
pay you the sum of $833.33 per month, starting 1/1/63 until your 65th
birthday and reduce it to $250 per month beginning with 12/1/67. You have been
a dear friend to both of us as well as a trusted business associate. We hope
you will enjoy your home and family and fill each day as much as you can."
Claimant retired as of
February 28, 1963 and the employer thereafter paid him $833.33 per month out of
general funds of the business in accordance with the foregoing agreement. No
particular funds were ever set aside by the employer to be used for these
monthly payments to claimant.
In January 1964 the
claimant resumed working for the employer at its request and thereupon the
foregoing monthly payments were suspended and claimant was again paid a salary
of $12,000 per year. He continued in the employ of the firm through November
1967 at which time the employer requested that claimant retire in accordance
with their agreement of February 1963 when he attained his 65th
birthday in November 1967. Claimant last worked on November 17, 1967 and then
retired from his employment by the firm. Beginning with December 1, 1967 the
employer has paid to claimant the sum of $250 monthly as provided for in the
1963 agreement. When claimant was interviewed in the local office on December
9, 1967, he stated that he was asked to retire on November 17, 1967 and was
paid through November 30, 1967; that he was to receive retirement pay at the
rate of $250 a month; that to the best of his knowledge his retirement pay was
to continue as long as he lived; that he had applied for social security but
was interested in employment, preferably in the insurance field and would be
willing to forfeit social security benefits in favor of full-time employment.
The local office
interviewer appended to the summary of insurance interview, signed by the
claimant, a memorandum of a telephone conversation with a Mr. Nolan of the
employer’s firm who said, among other things, that the employer was paying
claimant $350 a month but "it is not a pension fund" and they would
continue "to pay him this amount indefinitely, they hope, but they could
terminate these payments at any time they so desire."
However, in response to a
formal inquiry by the local office, the employer, per R.A. Nolan, office
manager, stated in writing on November 29, 1967, that the amount of pension or
retirement payment claimant was receiving was $250 per month; that the period
covered by the first pension payment was from December 1, 1967 to December 31,
1967; that the employer contributed 100% in financing the pension and under
"comments" further stated:
"Payments are not from
a pension fund. Payments are actually retirement pay based on claimant’s length
of service with the firm"
The employer did not appear
to testify at either the referee or the Board hearing.
Appeal Board Opinion and
Decision: The issue
before us is to determine whether or not the monthly payments made to claimant
by the employer constitutes a pension or retirement payment which requires a
reduction of claimant’s benefit rate as provided in Section 600 of the Law.
This section reads in part, as follows:
- Effect of retirement payments.
- 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 benefit rate for four
effective days otherwise applicable under subdivision seven of section
five hundred ninety shall be reduced as hereinafter provided.
Nothing in the Law requires
that a pension or retirement payment be made pursuant to any formal
arrangement. All that is required is that claimant receive retirement payments
or a pension under a plan financed in whole or in part by the employer. (Appeal
Board, 115,987).
In the cited case we
considered an employer’s retirement system where under a female employee
mandatorily retired at age 62, received $123 per month until the age of 65, of
which approximately $35 was derived from specific funds (to which the claimant
had contributed less than 50 percent) and the balance came out of the
employer’s current income. We held that the $123 per month was a retirement
payment under a plan financed in whole or in part by the employer and that
claimant’s benefit rate must be reduced as provided by Section 600 of the Law.
In the case at bar it is
undisputed that the monthly payments were made to claimant by the employer due
to claimant’s retirement. It is similarly undisputed that claimant made no
contributions to the plan and that is wholly financed by the employer.
Accordingly, we conclude that these monthly payments constitute retirement
payments under a plan wholly financed by the employer within the purview of
Section 600 of the Law. With reference to the characterization by the employer
as to the nature of the payments to claimant, we choose to rely upon its
written report to the local office dated November 29, 1967, stating
unequivocally that the $250 per month constituted retirement payments based
upon claimant’s length of service rather than the hearsay comment of the local
office interviewer added to the summary of insurance interview signed by claimant
and dated December 9, 1967. Of significant evidentiary value are claimant’s
statements in that summary of insurance interview, in which he conceded that
the $250 per month constituted retirement pay and nothing else. Assuming but
not conceding that the employer could terminate the pension payments at any
time it desired, this fact would not affect the ultimate month as a pension
while he was claiming unemployment insurance benefits. We are only concerned
with that period and not with any future contingency after claimant would cease
to be an applicant for unemployment insurance benefits. During his benefit
year, the receipt of a pension, wholly financed by the employer reduces his
benefit rights. Section 600 so mandates. We find no basis in law or fact for
the argument that the $250 per month might constitute payment in exchange for a
restrictive covenant, not to engage in competition with the employer. Even if
such restriction were expressly spelled out, it would not diminish the force
and effect of the clear arrangement for the payment of a pension. We observe
that it is a common provision in many pension plans provided by unions (and we
have adjudicated such matters repeatedly) that the pensioner abstain from
working in the same field covered by the particular union, under penalty of
forfeiture of such pension. Such a restriction on employment in no way affects
our rulings that such pensions come within the purview of Section 600 of the
Law.
Accordingly, we conclude
that claimant’s benefit rate must be reduced by the prorated weekly amount of
$250 monthly and hence to zero.
The initial determination
of the local office is sustained.
The decision of the referee
is affirmed. (November 14, 1968)
(Dissenting Opinion by one
member of the Appeal Board omitted)
COMMENTS
As pointed out in the
decision, the result would not be different even if the employer could
terminate the pension payments at any time or if they were in exchange for a
restrictive covenant not to engage in competition.
Similarly, it would not matter
if the pension or retirement payments were limited to a specified length of
time. The decision emphasizes that what controls is the receipt by the claimant
of a pension or retirement payment during his benefit year and that any
further contingencies are immaterial.
Index No. 1660A-3
1265-1
1710.7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 8, 1969
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
REFUSAL OF EMPLOYMENT
Health or Safety
Appeal Board Case 148,046
REJECTION OF LATE HOURS – FEAR OF
NIGHT TRAVEL
Genuine and reasonable fear
for personal safety constitutes good cause for refusing or leaving employment
requiring walking through dark and deserted streets late at night.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective June 21,
1968, on the ground that she voluntarily left her employment without good cause
is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, 56 years old, is a widow
and has a 20-year old son who attends college. Claimant was employed for about
a year and a half as a salesclerk by a chain store selling candy and bakery
products. In her first assignment she worked from 12 noon until 9 p.m. She
objected to the schedule because it interfered with her home life and she could
not prepare the evening meals for her son. She also objected to being required
to travel home late at night. Thereupon, the employer transferred her to
another branch where she was assigned a 9 a.m. to 5 p.m. schedule which was
satisfactory to her. She was then transferred to a branch on Fordham Road, in
the Bronx. Her new schedule was 10 a.m. to 7 p.m.
Although these new hours
delayed her in preparing the evening meal for her son claimant was willing to
accept such hours. On June 19, 1968, the manager of the Fordham Road store
advised claimant that she would be given a new schedule from 1 p.m. to 10 p.m.
because an employee who worked from 5 p.m. to 10 p.m. had left. Claimant
refused this new schedule for various reasons.
By working to 10 p.m.,
claimant could not arrive home until about 10:30 p.m. She would be unable to
prepare her son’s evening meals and he would be required to shift for himself.
Principally, claimant had a great fear of traveling to her home after 10 p.m.
Claimant would be required to walk about two blocks from where she left the bus
to reach her home. Claimant knew that this side street was deserted and dark at
the hour at which she would arrive at home. Claimant had a genuine fear of
walking the streets alone at the hour indicated. She is a frail woman and
weighs about 93 lbs.
Claimant must work to
support herself and her son. Within five weeks after leaving the job involved,
she obtained employment with another chain of candy stores where she works from
9 a.m. to 6 p.m., which she finds most satisfactory.
The employer failed to
appear at either the referee or Board hearings, although duly notified of the
time and place thereof.
Appeal Board Opinion and
Decision: We have
had occasion in recent decisions to pass upon the circumstances of women
working nights who evince a genuine fear of traveling on the streets in late
hours. We have decided that it is good cause to refuse employment or
assignments, which would place such women on the streets late at night in going
to and from work. We take cognizance of the fact that there are frequent
reports of women being assaulted on dark streets at night. If there is a
reasonable basis for a female worker’ s fear of going home from work in late
hours because of the neighborhood involved, then such worker should not be
compelled to be exposed to danger. We make no general rule. Each case must be
decided on its own facts.
Considering the fact that
claimant has been furnished previously with daytime employment by this employer
and the fact the employer has not seen fit to offer any evidence as to why a
similar schedule could be provided and as to the necessity for claimant to be
required to work to 10 p.m., we accept claimant’s contentions that the schedule
requiring her work to 10 p.m. was not reasonable or suitable for her and
involved personal risk. We conclude that claimant had good cause to leave her
employment.
The initial determination
of the local office is overruled. The decision of the referee is reversed.
(December 9, 1968)
COMMENTS
- Care should be used in applying this rule. As stated by
the Board, each case must be decided on its own facts.
- An expressed fear could be found genuine if a reasonable
basis for it existed. An obvious consideration is the method of travel.
Other factors might be a claimant’s past pattern of working hours, or
incidents in which he was involved or knew about.
- In this case claimant chose to leave her employment
rather than accept a re-scheduling of her hours. The same principle,
actions, would apply to a refusal of employment.
Index No. 775.1
1420.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
January 10, 1969
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Evidence of
Appeal Board Case 148,052
SELF-EMPLOYMENT: PREPARATION FOR
COMMENCEMENT OF OPERATIONS
Substantial activity in
preparing for commencement of business may indicate not only unavailability but
also lack of total unemployment, even though the venture is abandoned before it
becomes operative.
Referee’s Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective July 8,
1968, on the ground that he was not totally unemployed, is overruled. The
initial determination of the local office holding claimant ineligible to
receive benefits effective July 8, 1968, on the ground that he was not
available for employment, is modified to make same effective July 8, 1968
through August 18, 1968.
Appealed by: Industrial Commissioner and
claimant
Findings of Fact: Claimant was employed as a
salesman for a mal order firm for about five years up to June 1, 1968, when he
admittedly left to engage in self-employment in the sale and service of
television sets and appliances. He signed a year’s lease for a store commencing
June 1, 1968 at a monthly rental of $100. He purchased and erected counters and
display cases in preparation for the opening of his business. He filed a
certificate of doing business with the county clerk’s office and opened a
checking account in a trade name. He negotiated with a distributor for the
purchase of its merchandise. However, he was unable to satisfy the distributor
of his financial stability or to supply him with merchandise and then after
many attempts to do so without success, he abandoned his self-employment plans.
On August 10, he answered a newspaper advertisement and on August 26 he became
employed as an advertising salesman as a result thereof. Claimant alleged that
he was willing to take a job if offered to him during his preoccupation with
his own business. However, he made little effort to obtain a job.
Appeal Board Opinion and
Decision: The
credible evidence establishes that during the period in issue and prior to
August 19, 1968, claimant was primarily interested in self-employment and not
in obtaining a job. His efforts to obtain employment were casual, because he
was preoccupied with starting his own business. It was not until about the
third week in August when claimant abandoned his plans of proceeding with his
business, that he evidenced his availability for employment.
With respect to claimant’s
lack of total unemployment during the period in issue, we are not in accord
with the referee that the evidence does not establish that claimant lacked
total unemployment up to August 18, 1968. We find that claimant was substantially
involved with the preparation for and commencement of a business venture. We
conclude that he was not totally unemployed up to August 18, 1969 even though
the business did not commence because of the difficulties he experienced in
obtaining merchandise and credit.
The initial determinations
of the local office holding claimant ineligible to receive benefits effective
July 8, 1968 on the ground that he was not totally unemployed and holding
claimant ineligible to receive benefits effective July 8, 1968 on the ground
that he was not available for employment are modified to make each of said
initial determinations effective July 8, 1968 through August 18, 1968 and as so
modified are sustained.
The decision of the referee
is modified accordingly, and as so modified is affirmed. (December 11, 1968)
COMMENTS
- This decision illustrates the propriety of dual
determinations of lack of total unemployment and unavailability when a
claimant engages in preparatory work toward the beginning of
self-employment when the facts are sufficient to support both
determinations. Claimant’s self-employment plans had gone beyond the
exploratory stage and had ripened in that he had signed a lease and begun
paying rent, purchased and erected counters and display cases, opened a
checking account in the name of the firm, filed a certificate of doing
business, and negotiated for the purchase of inventory.
- There will be other cases where a claimant has not
reached this stage. But is devoting his time to the exploration of
business possibilities by investigating suitable opportunities, seeking a
loan, looking for a partners, location premises, or engaging in similar
preliminary efforts. Such an individual is not as yet self-employed, but
his preoccupation towards prospective self-employment would ordinarily
justify a determination of unavailability.
Index No. 865A-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February 4, 1969
INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS & REPORTING
Misinformation
Appeal Board Case 148,412
DISCONTINUANCE OF REPORTING ON
EXHAUSTION; INCORRECT INSTRUCTIONS BY LOCAL OFFICE
If the local office
instructed claimant to stop reporting for the remainder of his benefit year
when he apparently exhausted his benefits, but some of the benefits became
recoverable overpayments due to a back-pay award, the failure to file and
report thereafter in the benefit year is excused provided the local office was
or should have been aware that such award might be received.
Referee’s Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective October
16, 1967 through December 17, 1967, on the ground that he failed to comply with
reporting requirements, is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: The following findings of fact
rendered by the referee and accepted by the appellant, Industrial Commissioner,
are amply supported by the evidence and are adopted as the findings of fact of
the Board.
Claimant,
an auto repairman, refiled a claim effective May 8, 1967, (inadvertently stated
by the referee as May 8, 1968). By initial determination, effective October 16
he was ruled ineligible to an including December 17, 1967, because of his
failure to comply with reporting requirements.
Claimant,
on the filing in issue, received benefits through the week ending October 15,
1967, when he exhausted his benefits. His booklet was stamped to the effect
that he exhausted his benefits as of that time for the benefit year ending
March 31, 1968, after which date he could again file a new original claim,
providing that he had the required weeks of covered employment and sufficient
earnings in the new base period.
Claimant
had complained to his union about his dismissal in May. The matter went to
arbitration. The arbitrator’s award provided that claimant was to receive back
pay for the period from May 15 through July 12, 1967. Thereafter, the insurance
office issued an initial determination ruling claimant ineligible because of
total lack of unemployment during the period May 15 through July 16, 1967 and
an overpayment of $495 was deemed to be recoverable. This initial determination
was sustained in Case 520-497-68.
Claimant
did not report to the insurance office after October 15, 1967, because he was
told he exhausted his benefits and could not get benefits again until the
following April 1, 1968.
When
claimant refiled his claim, effective May 5 he was interviewed in the insurance
office. At that time he informed the insurance office that he had complained to
the union and that the union was trying to get him reinstated. Claimant had
made similar statements in the employment office when he reported to that
office.
To the above, we add the following:
The claimant filed his
claim on the form, "Registration for Work and Claim for Benefits" on
May 9, 1967 at the local office. On the back of this paper, there is endorsed
the following, "5/16/67. I was told by this mgr. Ed. Musik (sic) that I
was being let go because weren’t satisfied with my work – I did not quit – I
went to the union and they are working to get me back". (Underscoring
supplied)
Claimant’s union proceeded
promptly with its grievance and on May 22, 1967, filed its request for arbitration.
The proceedings were delayed and it was not until December 15, 1967 that the
arbitrator made his award reinstating claimant with back pay for the period May
15, 1967 to July 12, 1967. Claimant contended that he repeatedly advised the
local office that arbitration proceedings were pending.
Appeal Board Opinion and
Decision: The
record discloses that the contention of the Industrial Commissioner, that
claimant had never informed the insurance office that there were arbitration
proceedings pending throughout the time he was reporting for benefits between
May 8, 1967 and October 15, 1967, is not supported by the evidence. The local
office was advised by claimant on May 16, 1968 at the inception of his claim
that "they are working to get me back." This should have put the
local office on notice that a grievance was in process. The arbitrator found as
a fact that the union had requested arbitration by letter on May 22, 1967. This
supports claimant’s advice to the local office on May 16, 1967 that the union was
taking action with regard to his unwarranted discharge.
Claimant’s testimony is
uncontradicted that he advised the local office from the outset, that union
proceedings were pending and that he repeated this information on subsequent
occasions. He could not know the outcome of the arbitration proceedings, which
had been postponed many times until December 15, 1967.
We conclude that the
referee was correct in excusing the claimant’s failure to report from October
16, 1967 through December 17, 1967, because he had followed the instructions of
the local office not to report until his new benefit year commenced.
The initial determination
of the local office is overruled. The decision of the referee is affirmed.
(January 9, 1969)
COMMENTS
In this case claimant’s
information that action was being taken on his allegedly unwarranted discharge
should have alerted the local office to the possibility of his receiving a
back-pay award.
This decision should be
compared with A.B. 26,751, reported at A-750-1045 where claimant knew of a
pending back-pay award but failed to inform the local office about it. Under
those circumstances his discontinuance of reporting upon exhaustion of benefits
was not excused even though based on local office instructions.
Index No. 1722-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 14, 1969
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Distance, travel expense
Appeal Board Case 143,483
RELOCATION OF EMPLOYMENT TO ANOTHER
STATE
Transfer of work location
to another state is not in itself good cause for leaving employment when the
commuting time and distance is not unreasonable and the additional travel
expense is provided for.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective October
28, 1967, on the ground that she voluntarily left her employment without good
cause is sustained.
Appealed By: Claimant
(Note: An Appeal Board
decision of March 5, 1968 affirmed the referee decision sustaining the initial
determination. However, the Appellate Division, upon claimant’s appeal,
remitted the case to the Board for further proceedings on the ground that the
evidence submitted was inadequate to support the findings. The Board then held
a hearing and rendered the following decision.)
Findings of Fact: Claimant was employed for about 11
years as an assembler by a manufacturer of hair novelties. She worked on a
machine, which inserted brushes in hair rollers. Claimant did part of her work
by hand and machine. She originally was a pieceworker and earned $86 to $88 a
week. During the last two years of her employment, the assembly operation was
transferred to the firm’s Georgia plant and claimant continued to work in New
York on a weekly basis. Her wages were $66 at the beginning and her terminal
pay was $74 a week. Claimant continued to work on another machine, but was
unable to keep up with the production requirements. She was warned of this by
the employer and she claims this made her nervous.
Claimant lives in upper
Manhattan and the employer’s establishment was also located in Manhattan in New
York City. Claimant’s working hours were from 8 a.m. to 4:30 p.m. She usually
left her home at about 7:25 a.m. and traveled about 30 minutes by subway and
paid 20¢ fare each way.
Claimant left her job on
October 17, 1967, because the particular operation in which she was engaged was
to be transferred to the employer’s branch in Kearny, New Jersey, and claimant
was unwilling to work at that plant. The employer agreed to furnish free
transportation to its employees by having two buses meet them at West 14th
Street and 7th Avenue, New York at 7 a.m. or 7:20 a.m. to bring them
to the factory in Kearny, New Jersey. This arrangement was to be effective only
during the first nine months after the transfer of the operation to Kearny, New
Jersey. Thereafter, claimant and the other employees who accepted the transfer
would have to travel to New Jersey at their own expense. This would have caused
claimant to spend $1.80 a day for subway and bus fares, as compared to 40¢ a
day she would spend during the first nine months that she would work at the New
Jersey plant. In order to reach the plant in New Jersey, after the nine month
period, claimant would have had to leave her home at about 6:20 a.m. in order
to get the bus at the bus terminal at 8th Avenue and 40th
Street. To get to the latest bus leaving 14th St. and 7th
Avenue at 7:20 a.m. claimant would have to leave her home at 6:50 a.m.
The union, of which
claimant was a members, approved of the transfer, and in its agreement with the
employer, it provided for the payment of severance pay to those workers who
refused to accept the transfer and also to those, who after accepting the
transfer and after working one month in New Jersey, would then leave the job.
Claimant was paid $103 as severance pay when she left her job. She refused to
try the new assignment in New Jersey for even one month.
As reasons for leaving her
job, claimant contended that if she accepted the transfer, she would have to
leave her house at an early hour in the morning when it was unsafe for her to
be on the street; her travel time would take 40 minutes longer; she had earned
substantially more money when she worked on piecework; if she left her job
after working nine months in New Jersey, she could not file a valid claim for
benefits in New York; that she did not have to accept employment in New Jersey
because she is a resident of the State of New York and paid her taxes in New
York; that she would not be compelled to pay income taxes to New Jersey and New
York and finally, that two co-workers who did not transfer were paid benefits.
At the Board hearing, held
pursuant to the order of the Appellate Division reversing the Board’s decision,
evidence was submitted to the effect that if claimant left her employment after
working in Kearny, New Jersey, for nine months, she could then file a valid
claim in New York and would be entitled to benefits under either the Interstate
Benefit Payment Plan, the Combined Wage Plan or the Extended Combined Wages
Plan. If she filed against the State of New Jersey, she would receive a benefit
rate of $49 a week, whereas her benefit rate in New York, based solely on her
earnings in New York, would be $37 a week. Furthermore, in filing her New York
State income tax reports, claimant would be credited with any income tax she
would have to pay to the State of New Jersey on her earnings in that State.
Appeal Board Opinion and
Decision: Claimant
did not have good cause within the law to refuse the assignment in Kearny, New
Jersey, at the time it was made to her in October 1967. She was to continue
doing the same work, which she had performed for this employer and for which
she was qualified by her training and experience. The rate of pay was the same
and her travel time would not exceed one and one-half hours one way (it would
be one hour and fifteen minutes) and her fare would have remained the same as
when she worked in New York for the first nine months following the transfer.
Section 593.2(b) of the Law
provides that a claimant has good cause to refuse employment "if
acceptance thereof involves travel expense which is greater than that required
in her former employment unless the expense be provided for." In
this case, the employer would provide transportation for the claimant to New
Jersey during the first nine months, so that she would not incur any additional
travel expense by accepting the transfer. We have repeatedly held that travel
time not in excess of one and one-half hours one way is not deemed excessive.
(See Appeal Board 9576; 10,189 and 13,798.) Claimant’s travel time from her
home to Kearny via the subway to 14th Street and 7th
Avenue and then by bus would have been within this limitation.
There is no substantial
evidence to show that claimant’s health or safety would be adversely affected
if she accepted the transfer to the Kearny plant. Furthermore, the change in
her job duties and the method of payment of her salary, which occurred two years
ago, cannot be accepted as a compelling reason for leaving her employment at
the time in question. For the foregoing reasons we conclude that claimant did
not have good cause to leave her employment in October 1967, on the basis of
the conditions as they then existed. (See Matter of Fischl, 28 A.D. 2d
1021, affirming Appeal board, 135,438; Matter of Fanzo, 29 A.D. 2d 598,
affirming Appeal Board 136,179) both of which cases were cited by the Appellate
Division to hold that additional time spent in traveling to work and fear of
bodily harm on the streets in the early morning hours did not constitute good
cause.
However, claimant also
bases her justification for leaving her job, rather than accepting the transfer
to Kearny, New Jersey, upon conditions which would be brought into existence if
she were to leave her employment after working in Kearny for nine months. Since
the employer would no longer pay her additional fare of $1.40 a day or $7 a
week, which she would have to pay herself, claimant would then have good cause
to leave her employment at that time, pursuant to Section 593.2(c) of the Law.
However, inasmuch as this condition did not exist at the time claimant actually
left her job in October 1967, it did not justify her leaving her employment at
that time.
Claimant’s contention that
she would not be eligible for benefits under the New York State Unemployment
Insurance Law, if she filed for benefits after working nine months in New
Jersey, is likewise without validity. It is true that she would not have had 20
weeks of earnings in covered employment in New York during the 52 weeks prior
to filing her claim in New York in July 1968, and therefore would not be
eligible for benefits solely under the New York law based on her earnings in
this State.
However, as a New York
resident, claimant could file a claim in New York, as the "agent"
state, against the State of New Jersey, as the "liable" state, under
the three different benefit payment plans available to her. Under the
Interstate Benefit Payment Plan, she could apply for benefits based on her
earnings in New Jersey. This plan makes it possible for individuals to collect
unemployment insurance benefits from a state in which they have qualifying
wages, although they are not present in that state. Since the State of New
Jersey is a signatory to that arrangement, it would become the
"liable" state, which would pay benefits on claims filed by claimant
in New York, which would be the "agent" state. Under the New Jersey
Unemployment Compensation Law, claimant would be entitled to a benefit rate of
$49 a week for 26 weeks based on her New Jersey earnings. Therefore, she would
be eligible to collect full benefits, based upon her employment in New Jersey.
It is significant to note that if claimant were eligible for benefits and filed
in New York in October 1967, based on her New York earnings, she would be
entitled to a benefit rate of only $37.
The other two plans under
which claimant, a New York resident, could file for benefits when she had
earnings in another state, such as New Jersey, are (1) the Interstate Plan for
combining wages, used when claimant is not eligible in either the agent or
liable state, but may receive benefits by combining earnings in several states
where she was employed, and (2) the Extended Interstate Plan for Combining
Wages, used when the benefit rate in the agent or liable states is not
the maximum for said state, but can equal the maximum by covered employment.
Under this plan, claimant could combine her earnings for nine months in New Jersey
and three months in New York and receive greater benefits than by using only
her New Jersey earnings.
In New Jersey, the employer
was subject to the Federal Unemployment Insurance Tax Law, because it had at
least four employees for seven weeks during a calendar year. It therefore
become subject to the New Jersey State Unemployment Compensation Law from the
day it commenced operations in that state. (New Jersey Unemployment
Compensation Law, Section 4109 sub (h)(7) – par. 43:32-19). Consequently, by accepting
the transfer to work in New Jersey, claimant’s unemployment insurance benefit
rights would be protected from the first day of her employment in that state.
This arrangement for
reciprocal agreements with the several states of the Union was created because
the unemployment insurance programs are operated under separate state laws. It
is necessary therefore for the states to enter into various interstate
arrangements dealing with workers who work in several states and with claimants
who move from the state in which they have accumulated benefit rights. These
arrangements encourage a claimant to move from a state where no suitable work
is available to one where there is a demand for the type of service he is able
to render. (See Par. 2050 of Unemployment Insurance Reports, C.C.H.R. 4549.)
This encourages a mobility of movement of the worker from one state to another
without fear of losing any employment insurance benefit rights because of his
acceptance of employment in another state. For this reason, we reject
claimant’s contention that she had a right to refuse employment for which she
is reasonably fitted by training and experience, at the prevailing rate of pay
and working conditions, merely because the job is in another state. To
hold otherwise would be to defeat the very purpose and concept, which led to
the creation of the Interstate Benefit Payment Plans.
With regard to claimant’s
objection to accepting employment in New Jersey because it might involve the
payment of income taxes to the State of New Jersey while paying income taxes as
a resident of New York, such contention of claimant is also untenable. Section
620(a) of the Tax Law of the State of New York provides "that a resident
shall be allowed a credit against the tax otherwise due under this article for
any income tax imposed for the taxable year by another state of the United
States, a political subdivision of such state, or by the District of Columbia
upon income derived therefrom and subject to tax under this article."
The decision of the Appellate
Division raised three questions to be resolved upon remittal to the Board.
- The additional cost of transportation to
claimant after the nine month period. We have pointed out that at such time section
593.2(c) of the Law would come into play and claimant then would have good
cause to leave the job because of a failure to provide for the extra cost
of transportation. Section 593.2 refers to refusal of employment for such
reason. Section 593.1 dealing with voluntary separation incorporates this
provision in providing that it is good cause to leave a job if
circumstances developed in the course of employment justify refusal of
employment in the first instance under Section 593.2
- The removal of claimant from covered New York
employment. We
have treated this question herein by showing that claimant would lose no
benefit rights by so doing under the three plans discussed at length
herein. In fact, claimant would be entitled to a higher benefit rate
thereunder than she could receive if the employer remained in New York and
claimant was laid off under non-disqualifying conditions.
- The removal of the employer out of the State may
be good cause per se to quit employment. We have resolved this question by pointing out
that such fact alone is not controlling if the transportation to the new
place out of State does not exceed one and one-half hours travel time and
the additional expense of transportation is provided for by the employer
(Section 593.2(c)).
We come finally to
claimant’s objection to the disqualification because she alleges several of her
co-workers who refused to accept the transfer, filed claims for benefits in New
York and were not disqualified. On this appeal, we are only concerned with a
ruling on the correctness of the referee’s decision on the issue of whether this
claimant left her employment without good cause. Since the details of the
claims filed by claimant’s co-workers and the rulings of their respective local
insurance offices thereon are not before us on this appeal, we are in no
position to pass judgment on the actions of the insurance offices on such
filings.
On all the facts in this
case, we conclude that claimant did not have good cause to refuse the offered
transfer of employment to the New Jersey plan of her employer and that her leaving
her employment under these circumstances in October 1967, was without good
cause. She thus became subject to disqualification provided for by Section
593.1 of the Law.
The initial determination
of the local office disqualifying claimant from receiving benefits effective
October 28, 1967, on the ground that she voluntarily left her employment
without good cause is sustained. The decision of the referee is affirmed.
(April 18, 1969)
Index No. 1605F-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 4, 1969
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Voluntary leaving or refusal
Appeal Board Case 149,204
REJECTION OF SUCCESSOR EMPLOYER’S
OFFER
Rejection of an offer for
continuing employment with a new owner of the business constitutes a voluntary
leaving of employment.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective July 29,
1968, on the ground that she voluntarily left her employment without good
cause, is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a secretary, worked for
an insurance company in Jamaica, Queens, from January 1967 until June 28,1968.
Her salary was $85 a week. In about March 1968, the employer notified the
employees of the company that a merger was taking place wherein the company
would be absorbed by a large insurance company. Between March and the end of
June 1968, the successor employer notified claimant that she would continue in
their employment and would receive a $5 a week increase if she would work in
Manhattan. She did not wish to work in Manhattan and declined the offer. She
left her job on June 28, 1968, when the successor employer took over.
Appeal Board Opinion and
Decision:
Considering the facts in the light most favorable to claimant, we do not concur
in the conclusion reached by the referee that claimant did not voluntarily
leave her employment without good cause. The business would continue
uninterrupted though under new ownership. It is undisputed that the new
business owner was willing to continue claimant in her job, but to relocate in
Manhattan. Claimant did not wish to continue her employment even though she was
offered a $5 increase because she did not want to work in Manhattan. This was
not a justifiable reason under the law. Under the circumstances, claimant must
be deemed to have voluntarily left her employment without good cause.
The initial determination
of the local office is sustained. The decision of the referee is reversed. (May
19, 1969)
COMMENTS
The referee had held that
there was no voluntary leaving of employment but that claimant’s declination to
continue with the new owner was a refusal of employment which he found to be
academic because it occurred before benefits were claimed. (See Index 1215F).
Index Nos. 1605B-2
1695.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 24, 1969
INTERPRETATION SERVICE – BENEFIT CLAMS
VOLUNTARY LEAVING
Discharge or leaving
Health or safety
Appeal Board Case 149,438
LAYOFF DUE TO PREGNANCY – REJECTION
OF MATERNITY LEAVE
If claimant’s services are
terminated under an employer’s policy requiring employees to cease working at a
given stage of pregnancy, there is no voluntary leaving of employment even
though the claimant declined to accept a maternity leave.
Referee’s Decision: The initial determinations of the
local office, disqualifying claimant from receiving benefits effective October
5, 1968, on the ground that she voluntarily left her employment without good
cause, and holding her ineligible to receive benefits effective October 7,
1968, on the ground that she was not available for employment, are overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a clerk-typist, was
pregnant, with an expected date of confinement of January 1, 1969. She had been
employed at a bank since July 1965 and was a permanent employee, entitled to
participate in the employer’s profit sharing and stock-purchase plans and other
employee fringe benefits. Claimant’s physician had reported that she was
capable of working up to the probable date of her confinement. However, the
employer’s policy was to require its employees to cease working after
completing the sixth month of pregnancy. At such time, the employer’s rules
provided that such employees could obtain a six months’ maternity leave
covering the last three months of pregnancy and the first three months
following delivery. If such leave were obtained, the employee’s rights in
respect to all of the various participation plans and other fringe benefits and
the employee’s seniority in service were preserved without diminution. Upon the
completion of such leave, the employee would return to work at the same salary
she was receiving at the start of her leave and, if possible, in the same
position she had held; if such were not possible, then in a position
commensurate with the prior one. Claimant was aware of her right to receive
such leave, with all attendant job-protection provisions, but she decided not
to apply for it and instead she resigned because she wanted to withdraw, for
her own use, the moneys with which she was credited in the participation plans.
Her last day of work was October 4, 1968.
Claimant filed a claim for
benefits, effective October 7, 1968. During the period subsequent thereto,
claimant’s search for employment was curtailed because of her physician’s
advice not to use public transportation during the rush hours. When interviewed
at the local office on October 21, 1968, she stated that she was relying
primarily on the employment service office to find work for her and therefore,
up to that date, she had not sought work independently. Again, for the period
from October 28, 1968 through November 4, 1968, she advised the local office
that she had made no independent search for employment. Whatever contacts she
did make with prospective employers were predominantly by telephone and she invariably
advised them of her pregnant condition.
Appeal Board Opinion and
Decision:
Notwithstanding that it is undisputed that claimant was compelled to leave her
employment on October 4, 1968, by reason of the rules of the employer which
required that she terminate her employment on October 4 because of the stage of
her pregnancy, it is nevertheless contended on behalf of the Industrial
Commissioner that she must be deemed to have voluntarily left her employment
without good cause for the reason that she failed to apply for a leave of
absence which would have assured her re-employment by the same employer when
and if she was prepared to return to the labor market after the birth of her
child. While the contention thus advanced may find some support in prior decisions
of the Board, we have now reviewed the matter and conclude that the
disqualification provided for in Section 593.1 of the Law has no application
under the circumstances herein.
The pertinent language of
Section 593.1 of the Law is:
"No
days of total unemployment shall be deemed to occur after a claimant’s
voluntary separation without good cause from his last employment prior to
the filing of his claim***" (Underscoring supplied)
Obviously claimant’s
separation from her employment on October 4, 1968 was, in no sense, voluntary.
Her separation from the employment on that day was mandatory by virtue of the
employer’s policy which required her to cease working when she had reached the
sixth month of her pregnancy. It is, of course, true that claimant could have
protected her status for subsequent re-employment by availing herself of the
privilege of obtaining a leave of absence for a six month period so that she
could be assured of re-employment at that time if she intended to remain in the
labor market after the birth of her child. However, the Law does not provide
for a disqualification due to a claimant’s failure to protect an
employer-employee relationship but only for "separation***from***employment."
The test, which must be
applied, therefore, is whether claimant’s failure to apply for the leave of
absence was the cause for her separation from the employment. The answer is
self-evident because, irrespective of any application she could have made for a
leave of absence, the employer’s policy mandated the termination of her
employment on October 4, 1968. Thus, the conclusion is compelled that her
separation from her last employment prior to the filing of her claim was
entirely involuntary.
If claimant fails to obtain
any employment prior to the time when the leave of absence which she could have
obtained would expire and her failure to apply for the leave results in her
inability to obtain rehire by her last employer when and if she is prepared to
return to the labor market, after the birth of her child, it would then follow
that her separation from employment at that time would be the result of her
voluntary act in having failed to protect the employer-employee relationship so
as to assure herself of re-employment at that time. However, that is not the
issue before us. We are concerned solely with whether or not claimant’s
unemployment in the period here at issue, prior to the birth of her expected
child, is the result of her voluntary separation from the employment. Applying
such tests were are persuaded to the conclusion that claimant's’ unemployment
in the period with which we are concerned results solely from a lay-off
precipitated by the enforcement of the employer's rules.
It thus becomes necessary
to determine whether or not claimant was available for employment during the
period for which she claimed benefits. An analysis of the proof adduced herein
compels the conclusion that claimant failed to establish her availability for
employment throughout the period in issue because she failed to demonstrate the
diligence expected of a person who is genuinely desirous of becoming
re-employed, especially in view of the limited time during which she could have
continued to work before the birth of her child. Her job search appears to be
mere token in nature and completely inadequate in scope and with respect to the
methods she used to learn of possible job opportunities.
The initial determination
of the local office disqualifying the claimant for having voluntarily left her
employment without good cause is overruled.
The initial determination
of the local office ruling claimant ineligible on the ground that she was
unavailable for employment is sustained.
The decision of the referee
is modified accordingly, and as so modified, is affirmed. (April 25, 1969)
COMMENTS
- The decision changes principles previously applied. The
same conclusion would have to be reached in comparable situations, that
is, where there is a suspension of work with an offer for reinstatement at
a distant specific or approximate date. Illustrations would include
layoffs at the end of the season by employers engaged in operations
conditioned on the seasons of the year, such as resort hotels. A claimant
is then not subject to a voluntary quit disqualification when he does not
seek an obtainable offer of reinstatement for a future date, or by word or
action declines to accept such offer.
Since,
as is pointed out in the decision, there has been a non-disqualifying
separation from and termination of employment in such a case when the claimant
demonstrates that he will not return, a disqualification could thereafter only
apply on the grounds of refusal provided the job is actually re-offered to the
claimant. A failure by the claimant to reapply for the job at the approximate
time on his own initiative may also be considered in evaluating his
availability.
However,
if the claimant obtain a leave of absence or accepts an offer for reinstatement
but fails to return to work when scheduled, there would be a voluntary leaving
at that time which is disqualifying if without good cause.
- The rule established by this decision should not be
extended to intermittent layoffs due to temporary lack of work where a
date is set for return to work or where the claimant has reinstatement
rights under a union contract. In such instances and in the absence of
good cause, a claimant is subject to a disqualification for voluntary quit
when he fails to report for work on n the return or recall date, of when
prior to such date he manifests that he will not resume work with the
employer.
Index No. 1450-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 19, 1970
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Work without pay
APPELLATE DEIVISION DECISION
Matter of Ida Deutsch
FAMILY ENTERPRISE: ACTIVITY OF
MEMBER IN OFF-SEASON
A claimant, who throughout
the year is active in the management of a seasonal, corporate family enterprise
is not totally unemployed during periods when the business is closed, even
though he is neither an officer nor stockholder and receives no remuneration
during the slow periods.
DECISION
Appeal by the claimant from
a decision of the Unemployment Insurance Appeal Board, filed April 8, 1965,
which sustained the determinations of the respondent that the claimant was
ineligible to receive benefits for periods during the years 1962, 1963 and that
an overpayment of $2,200 in benefits was recoverable, and further imposed a
penalty because of wilfully made false statements to obtain benefits.
The claimant was the owner
of a hotel, which she leased to a corporation solely owned by her brother and
his wife. The corporation operated the hotel business upon the premises and as
a rental the corporation was responsible for the complete maintenance of the
hotel building and the land connected therewith. The business of the hotel was
seasonal and restricted to the summer season of June through September. The
claimant was carried on the books of the corporation as an employee and
apparently performed the function of hotel manager. It further appears that
from the 1930’s until the date of the hearing the hotel business had been
primarily operated as a family enterprise even though there was a separate
ownership of the hotel business operated by the corporation and the ownership
of the land and buildings by the claimant. The board found that despite the
existence of the employer corporation, the hotel business remained a family
enterprise and that the claimant was concerned with the management of the
business throughout the year and, accordingly, was not totally unemployed. There
is substantial evidence to support the finding of the board. [See Matter of
Wersba (Catherwood), 27 A.D. 2d 890; Matter of Weiss (Catherwood),
28 A.D. 2d 577; Matter of Vasquenz (Catherwood), 26 A.D. 2d 859.]
When an overpayment results
from a claimant’s wilful misrepresentations to obtain benefits, the benefit may
be recovered even though more than 1 year has expired. [See Labor Law, 594; Matter
of Marder (Catherwood), 16 A.D. 2d 303,305.] Upon the present record
the board has found that the claimant had a duty to advise the insurance office
as to the relationship between herself and the hotel business (employer) when
she applied for benefits. The forms, which the claimant made out in applying
for benefits, clearly require a disclosure as to self-employment. The record
contains various summaries of interviews signed by the claimant, which contain
statements by her that would not be true, as admitted by the claimant upon the
hearings. The claimant denied having made these statements as signed by her, but
it was a question for the board as to whether or not she had made such
statements. The present record sustains the finding of the board that the
statements made by the claimant were designed to mislead the respondent and
constituted wilful misrepresentation for the purpose of obtaining benefits,
which were paid, and are recoverable.
Decision affirmed, without
costs. October 20, 1969).
Index No. 1740A-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February 16, 1970
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Wages
Appeal Board Decision 150,350
DISSATISFACTION WITH EARNINGS BASED
ON COMMISSIONS
When the amount of earnings
is not known at the time of hire – as where part of the compensation consists
of commissions for sales made – leaving the employment is with good cause if it
develops after a reasonable trial period that the earnings are so low that they
"would have justified the claimant in refusing such employment in the first
instance." [Section 593.1(a)]
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective October
24, 1968, on the ground that he voluntarily left his employment without good
cause, is sustained. (The referee did not rule on the initial determination of
the local office disqualifying claimant from receiving benefits effective
November 14, 1968, on the ground that without good cause he refused employment
for which he is reasonably fitted by training and experience.)
Appealed By: Claimant
Findings of Fact: Claimant last worked as a used car
salesman for a period of approximately five weeks. Prior to this employment and
throughout his working life, claimant had been a machine operator. On his last
factory job, he had averaged approximately $143 per week. After the loss of his
job due to lack of work, claimant sought other means of earning a living. The
employer herein offered claimant a job as a used car salesman, an occupation in
which claimant had never engaged, with a salary of $60 per week, plus 20%
commission on all sales made. While nothing in the record indicates the number
of hours claimant was required to be on the sales floor, such record does
reveal that claimant was to work evenings as well as six days a week. Shortly
after claimant began his association with the employer, he was asked to remain
on the selling floor only four hours each day and to devote the rest of his
time to searching out customers on his own.
Subsequent to a trial of five
weeks and on October 23, 1968, claimant terminated his employment because
during his period of employment he averaged $75 a week. He had received an
average of no more than $15 a week in sales commissions. Claimant attributed
his meager earnings to the fact that the new car salesmen who were unsuccessful
in selling a new car to a customer were selling the customer a used car instead
of referring the customer to the used-car salesmen of the employer thereby
depriving claimant of the opportunity to make a sale and the commission
involved therein. He had understood that the new car salesmen were to refer
such customers to him and not make the sale themselves. Since claimant believed
that he had given this employment a reasonable time and the good wages which
the claimant had expected had not developed, claimant left the employment. On
December 10, 1968, claimant obtained employment in his occupation as a machine
operator.
On November 14, 1968, the
employer herein indicated to the insurance office that it was willing to offer
claimant the same job back. This offer was communicated to claimant who refused
to accept it.
Appeal Board Opinion and
Decision: We do not
agree with the opinion of the referee that since there was no change in the
terms and conditions of hire throughout the period of his employment, and no
circumstances developed during the course of claimant’s employment which would
have justified him in refusing the employment in the first instances, claimant
should be disqualified for voluntary leaving of employment without good cause.
We consider that claimant accepted the job as a used car salesman on a trial
basis. This is bolstered by the fact that the record fails to indicate definite
terms of employment, such as the number of hours to be devoted to floor sales
work, the number of hours to be devoted to seeking out potential customers, and
whether salespersons of new cars had the right to make sales of used cars and
receive the commission thereon. We are satisfied that claimant worked five
weeks and discovered that his average commission per week was only $15 and that
he gave the job a reasonable and fair trial. It would not be reasonable and
fair to expect the claimant who is not working in his regular occupation to
continue working at a job which paid substantially less than his usual
occupation for which he had training and experience and could earn
substantially more. We therefore hold that claimant left the employment with
good cause under the Law.
In view of the foregoing,
and since the offer of re-employment was not accompanied by any assurances that
the terms and conditions of employment would differ in any respect from the
prior period of his employment, we hold that claimant was justified in refusing
the offer of re-employment.
The initial determinations
of the local office are overruled.
The decision of the referee
is reversed. (January 6, 1970)
COMMENTS
This case illustrates an
application of the qualification in the rule of Matter of Sellers
(A-750-1550) which states that dissatisfaction with wages, even though they are
below those which are prevailing for claimant’s occupation, is not good cause
for a voluntary quit "unless circumstances are involved which have
developed in the course of employment."
Index No. 1610-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 10, 1970
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Provoked Discharge
APPELLATE DIVISION DECISION
Matter of Robert M. Donahue, 33 AD 2nd 848
LOSS OF LICENSE: CAB DRIVER, REFUSAL
TO SUBMIT TO SOBRIETY TEST
Refusal of a police
officer’s request to take a chemical test for intoxication, resulting in
revocation of operator’s license and consequent loss of employment as cab
driver, constitutes voluntary leaving without good cause.
DECISION
Appeal from a decision of
the Unemployment Insurance Appeal Board, filed August 29, 1968, which
determined that claimant voluntarily left his employment without good cause by
provoking his discharge.
Claimant, a cab driver, was
arrested on December 2, 1967 by a State Trooper and charged with driving while
intoxicated. The trooper requested him to submit to a blood test for
intoxication, which he refused to do. He requested an opportunity to consult
with legal counsel and about one and one-half hours after the arrest, he
conferred with his attorney by telephone. Thereafter, on advice of his counsel,
he offered to submit to the test, whereupon he was advised that it was too
late. The charge of driving while intoxicated was thereafter dismissed by the
court. On February 13, 1968 the Motor Vehicle Bureau held a hearing which
resulted in the revocation of claimant’s operator’s license by reason of his
refusal to submit to the test. By reason of the revocation, claimant was unable
to continue in his employment as a cab driver and applied for unemployment
insurance benefits.
By initial determination
claimant was held to be disqualified from receiving benefits for voluntarily
leaving of employment without good cause. The Referee sustained this
determination on the assumption that the determination of the Commissioner of
Motor Vehicles was proper. The board affirmed the decision of the Referee
granting claimant leave to reopen the case upon a favorable decision in a
pending article 78 proceeding to review the determination of the Commissioner
of Motor Vehicles which was then pending in this court.
In Matter of Donahue
v. Toffany [___A.D. 2d___ (decided October 20, 1969)], this court
confirmed the determination of the Commissioner of Motor of Vehicles. Whether
claimant’s refusal to take a chemical test thereby causing the revocation of
his license constituted a voluntary leaving of his employment without good
cause is a question of fact within the province of the board to determine. The
decision of the board is supported by substantial evidence and should not be
disturbed. [Matter of Fishbein (Catherwood), 28 A.D. 2d 1059].
Decision affirmed, without
costs. (December 11, 19690
Index No. 835.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 4, 1970
INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION AND REPORTING
Due Diligence
Appeal Board Decision 154,308
FAILURE TO REPORT TO EMPLOYMENT
SERVICE BECAUSE WORK IS IMMINENT
Recall to work may be a
valid reason for not reporting to the Employment Service on the working day
immediately preceding the recall date. (See "Comments")
Referee’s Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective August 8
through August 10, 1969, on the ground that she failed to comply with reporting
requirements, is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, a cutter, was laid off
from her job on June 27, 1969, because work was slow. She filed an original
claim for benefits effective July 1, 1969 and received five benefit payments to
August 10, 1969. On her last interview at the insurance office, the insert to
claimant’s insurance booklet was marked to indicate that she was due to report
to the employment office on Friday, August 8, 1969. However, claimant did not
report on that day because she had received a letter from her employer advising
her to report for work on Monday, August 11, 1969.
Appeal Board Opinion and
Decision: The
credible evidence establishes that claimant had good cause not to report to the
employment office on Friday, August 8, 1969 as indicated on the insert to her
insurance booklet, in view of the fact that her employer had advised her to
report for work on Monday, August 11, 1969. We, therefore, conclude that her
failure to comply with reporting requirements was with good cause.
The initial determination
of the local office is overruled.
The decision of the referee
is reversed. (April 14, 1970)
COMMENTS
The Appeal Board found in
this case that a cutter’s failure to report to the Employment Service on a
Friday was with good cause in view of the fact that she was starting work on
Monday of the next week. Conceivably the Board might have reached a different
conclusion for a claimant, such as a waiter, where work on weekends is
customary. On the other hand, it is also conceivable that a failure to report
to the Employment Service could be found to be with good cause even more than
one working day prior to the start of employment, if a claimant is in an
occupation, such as engineer, where employment is usually on a longer-range,
permanent basis, and orders for temporary one or two-day jobs are quite
unlikely.
Thus, there is no precise
formula for making these determinations. In deciding whether a failure to
report to the Employment Service should be excused, consideration should be
given not only to the proximity of the re-employment date to the reporting
date, but also to factors such as claimant’s occupation and the practices of
his industry.
Index No. 780A.5
1040.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
July 23, 1970
INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Suspension Period
HEARINGS AND APPEALS
Limitation on jurisdiction
Appeal Board Decision 157,903
LAPSED CLAIM: NEW AVAILABILITY
DETERMINATION REQUIRED
A determination of
unavailability loses its validity when a claim becomes inactive, so that a new
determination must be issued if a claimant is still unavailable when an
additional claim is filed after a lapse of time or a change of conditions.
Referee’s Decision: The initial determination of the
Out-of-State Resident Office holding claimant ineligible to receive benefits,
effective December 15, 1969, on the ground that he was not available for
employment, remain in effective because the claimant failed to request a
hearing thereon within the statutory period, and also claimant was ineligible
to receive benefits, effective March 23, 1970, on the ground that he was not
available for employment.
Appealed by: Claimant
Findings of Fact: Claimant, a salesman, filed an
original claim for benefits, in
Appeal Board Opinion and
Decision: The Board
has had this identical situation presented to it in a prior case. Appeal Board
151,802. In that case also, the referee carried over to a subsequent period, an
initial determination of unavailability issued in respect to a prior claim,
which had lapsed. The Board said:
"Inasmuch
as the local office failed to issue any initial determination as to claimant’s
availability in respect to her refiling effective march 4, 1969, the referee
had no jurisdiction to rule on any period subsequent to February 2, 1969. We
find that orderly procedure required the issuance of a new determination
following the refiling of claimant’s claim." (Underscoring supplied)
The Board finds that the
same reasoning applies to the present case. The local office not having issued
any initial determination in respect to claimant’s availability subsequent to
his refiling of his claim, effective march 23, 1970, there was no such issue
before the referee. He was limited to ruling only on the initial determination,
effective December 15, 1969, which could cover the period only through the date
for which claimant last claimed benefits on that claim: viz., January 20, 1970.
He would have had such jurisdiction only if the refusal issue, which was
properly before him, had in its elements to indicate unavailability. Since
claimant did not request a hearing on that initial determination until more
than 30 days after it was mailed to his then last known address, his request
was untimely and the referee could not rule on the merits thereof for lack of
jurisdiction.
The initial determination
of the Out-of-State Resident Office holding claimant ineligible to receive
benefits, effective December 15, 1969 remains in effect.
There is no initial
determination concerning claimant’s availability, effective March 23, 1970, in
issue herein.
The referee’s decision,
insofar as appealed from, is modified accordingly and, as so modified, is
affirmed. (June 30, 1970)
COMMENTS
- This case emphasizes that, following the
issuance of a determination of unavailability, it is important not only to
scrutinize the claim on a continual basis, but also to consider issuing a
new determination whenever the claimant refiles after his claim has
lapsed.
- Appeal Board case 151,802, cited in this
decision, concerned a claimant who did not report to the insurance office
for about a month because she gave birth. Upon refiling, that office
merely continued her ineligibility due to unavailability, based upon a
determination issued while she was pregnant. Thus, not only was there an
appreciable lapse in the claim, but circumstances had changed. For either
reason, a new determination should have been issued, and the Board found
that the referee had no jurisdiction to rule on the period subsequent to
the refiling.
Index No. 1660A-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
October 15, 1970
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Health
Appeal Board Decision 155,946
LUNCH PERIOD: SECTION 162 OF LABOR
LAW
In the absence of an employee
objection, a 30-minute lunch period in a factory or mercantile establishment is
permissible without application to the Industrial Commissioner pursuant to
Section 162 of the Labor Law, and therefore cannot avert disqualification
because of a separation for unrelated reasons.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective August
23, 1969 on the ground that she voluntarily left her employment without good
cause by provoking her discharge, is overruled.
Appealed By: Industrial Commissioner and
employer
Findings of Fact: Claimant was employed as a
stenographer and clerk, in a foundry at Oneida, New York, from October 17, 1966
through August 22, 1969. She worked 40 hours a week, from 7 a.m. to 3:30 p.m.
with a half-hour for lunch. Claimant was frequently late in arriving at work.
During the year 1969 she was late 70 times.
Claimant was unable to get
along with one of the foremen and there was a constant clash of personalities,
resulting in a lack of cooperation between them in connection with the
performance of their work. Claimant had been warned on several occasions about
her tardiness and behavior toward the foreman. She admitted she often came late
to annoy the foreman and "give him something to complain about."
Claimant was late on August 21, 1969 and was discharged at the end of the week,
because of her tardiness and lack of cooperation.
Although claimant was
allowed only one-half hour for lunch, neither she nor the other workers complained.
Under Section 162 of the Labor Law it is provided that workers in a factory are
to be allowed at least 60 minutes for the noon-day meal. However, it also
provides that the Industrial Commissioner may permit a shorter time to be fixed
for the meal period, but such permit must be in writing and be kept
conspicuously posted in the main entrance of the establishment.
At the Board hearing, it
was established that it is the practice of the Labor Department to permit a
30-minute lunch period without application to the Industrial Commissioner,
unless there is evidence that this would be detrimental to the workers, in
which case an investigation is made. The employer had requested permission to
have a midnight shift for women. Such request was granted by the Industrial
Commissioner and a notice was posted authorizing the maintenance of such shift.
No complaint had been made by any worker, including claimant, after the posting
of this notice.
Appeal Board Opinion and
Decision: The
referee correctly found that claimant had provoked her discharge by her
repeated tardiness and uncooperative conduct toward the foreman, even after she
had been repeatedly warned. However, the referee ruled that claimant had good
cause to leave her employment because the employer violated the Labor Law in
allowing her only 30 minutes for her lunch. The record does not support his
conclusion.
The evidence now before the
Board establishes that a 30-minute lunch period in a factory is permissible
even without application to the Industrial Commissioner, in the absence of any
objection by an employee and in the absence of proof of a hardship to such
employee because of the shortened lunch period.
Inasmuch as there is a lack
of proof that claimant objected to the 30-minute lunch period, there is no
apparent reason why claimant’s conduct in provoking her discharge should be
excused or waived because of an unproven alleged violation of the Labor Law by
the employer. In this day and age when it has become economically essential for
a large percentage of married women to go to work, it is to their advantage and
usually it is their desire, to leave work as early as possible in order to have
sufficient time to attend to their domestic chores. To do so, they are even
willing to shorten their lunch period. A violation of Section 162 of the Labor
Law is enforceable only by action of the Industrial Commissioner and no right
of action to recover compensation for any loss sustained by reason of such
violation is given to any employee. (See McElroy v. City of New York, 50
Misc. 2d 223, affirmed in 29 A.D. 2d, 737 and Tanner V. Imperial Recreation
Parlors, 265 App. Div. 371).
Claimant worked for a
considerable length of time, taking a 30-minute lunch period without complaint.
Her situation is similar to that in Matter of Sellers, 13 A.D. 2d, 204,
reversing Appeal Board, 70,414, wherein it was held that claimant did not have
good cause to leave his employment because of the inadequacy of his pay, since
he continued to be employed under the same conditions as when he was hired.
For all of the reasons
herein above set forth and on the basis of all of the evidence in this case, we
conclude that claimant provoked her discharge by her actions and this is
tantamount to voluntarily leaving her employment without good cause. She did
not leave her employment because of the 30-minute lunch period. She was
properly disqualified from receiving benefits under Section 593.1 of the Law.
The initial determination
of the local office is sustained.
The decision of the referee
is reversed. (August 6, 1970)
COMMENTS
In the above case, claimant
was discharged because she was frequently late in arriving at work and was
uncooperative. Presumably the Board would have reached the same conclusion had
she left voluntarily for reasons other than objection to the lunch period, or
even because of the short lunch period, in the absence of evidence that she
complained about it.
Index No. 1650A-7
1650D-7
1710.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 23, 1970
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Safety
Appeal Board Decision 158,730
REASONABLE SAFETY REQUIREMENT; NET
FOR SHOULDER-LENGTH HAIR
If a male worker needs protective
headwear on the job because of shoulder length hair, leaving because of
objection to the reasonable device chosen by the employer is without good
cause.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective February
26, 1970, because he voluntarily left his employment without good cause, is
overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant was rehired as a band-saw
operator, by a former employer, a manufacturer of electrical products, on
February 24, 1970. He has a beard, which is about three or four inches long and
he wears his hair nearly shoulder length. When hired, claimant was informed
that safety rules required the wearing of protective clothing designed to
prevent accidents due to such hairstyles. This could be either a safety hat or
a hair-net. The decision as to which would be used to be made by the department
supervisor. Claimant decided to wear a hat.
On the next day, claimant’s
department supervisor ordered him to wear a hair-net rather than a hat.
Claimant refused and sought a reassignment to other work, from the personnel
office. There was no other job assignment for him. Claimant then resigned.
Appeal Board Opinion and
Decision: The
evidence herein establishes that claimant understood that his supervisor’s
choice of protective headwear for him was to be a hair-net and the claimant did
not wish to wear one. Since the choice of the specific item of protective
clothing to be worn was the supervisor’s prerogative and there is no evidence
to show that the choice was not a reasonable one, the claimant had no basis for
any objection to the supervisor’s order directing him to wear the hair-net.
Accordingly, claimant did not have good cause to resign from his job rather
than comply with the supervisor’s reasonable order.
The initial determination
of the local office is sustained.
The decision of the referee
is reversed. (October 16, 1970)
Index No. 1460A-6
1460B-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 4, 1971
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Payments without Work
Appeal Board Decisions 160,995 & 161,000
PAID VACATION OR HOLIDAY AFTER
TERMNATION
A claimant is ineligible
for benefits for a properly designated paid vacation period, or paid holiday,
even though his employment was terminated prior thereto.
A.B. 160,995
Referee’s Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective July 20
through August 2, 1970, because it was a paid vacation period for which no
benefits are payable, is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a planning
administrator, worked for an optical company for more than six years through
July 10, 1970, when he was laid off because of a lack of work. At that time he
was given vacation pay for the two-week period from July 20 through August 2,
1970, which had been designated as a vacation period for all employees in a
vacation notice, dated January 26, 1970, posted on the bulletin boards in the
plant.
Opinion: The issue in this case is whether
or not a claimant, whose employment was terminated prior to a duly designated
vacation period, and who was then given his vacation pay, is eligible for
benefits during the designated vacation period. This issue has been considered
by the Board on several occasions subsequent to the amendment of Section 591.3
of the Labor Law, which became effective April 26, 1963. In Appeal Board
107,486, the Board ruled that notwithstanding that claimant’s employment was
terminated prior to the designated vacation period, since claimant had received
his vacation pay at the time of his discharge, by mandate of the statute he was
ineligible to receive benefits for such vacation period. More than seven years
later, this precise issue was again considered by the Board, which then
concluded that the Legislature, in enacting the 1963 amendment dealing with
vacation period or holiday, did not contemplate a situation where claimant’s
employment has been terminated prior to the scheduled vacation period and
claimant has been prepaid for such vacation period (Appeal Board 153,497). In
That decision, the Board reconsidered and overruled the earlier decision in
Appeal Board 107,486.
In order to ascertain the
intent of the 1963 Legislature in amending the Law dealing with a vacation
period or a holiday, we must consider the statute as it existed prior thereto.
Subdivision 3 of Section 591 was newly added to the Labor Law in 1958 (L. 1958
c. 387, Sec. 13). It provided that no benefits shall be payable to a claimant
during a vacation period. It defined a "vacation period" as a period
during which a claimant has a temporary respite from work, and for which
entire period such claimant is given a vacation payment or allowance by his
employer directly, and such claimant was substantially fully employed by such
employer during the last work week before and the work week immediately following
such period [Section 591.3(a)]. Subdivision 3(b) provided specific conditions
where a claimant was not eligible for benefits during a vacation period even
though he was not substantially fully employed by his employer during the work
weeks immediately before and after the vacation period. In subdivision 3(c),
there was again a reference to a vacation period in which claimant had a
respite from work. Subdivision 3(d) of the 1958 statute stated, in part:
"(d)
a period during which a claimant has a respite from work is not a vacation
period even though he is given a payment or allowance by his employer for such
period, if
* * *
"(2)
immediately preceding the beginning of such period or immediately thereafter
the employment of such claimant is terminated."
As the administration of
the new statute dealing with vacation period proceeded, it was subjected to
various criticisms. The sponsor for the 1963 amendment of Section 591.3 of the
Law observed, that unemployment insurance is properly payable only to claimants
who are suffering a loss of wages due to unemployment and that there is no loss
when an individual receives full pay for a holiday or for a vacation, even
though he is not working during that period. The sponsor further observed that
the 1958 law permitted the payment of unemployment insurance benefits, in
addition to full pay for a holiday or for a vacation in certain cases, and that
this should not be permitted. It proposed that a claimant shall not be
considered unemployed on any day to which vacation or holiday pay is validly
allocated under the terms of claimant’s contract of employment (New York
Conference on Unemployment Insurance, 1963 Legislative Program).
The industrial Commissioner
submitted to the Governor a memorandum in support of the proposed 1963
amendment of Section 591.3, pointing out that the original statue had created
results in conflict with the expressed purpose of the Unemployment Insurance
Law, and that, under the proposed 1963 amendment, "Agreed or announced
days of paid vacation and holidays render a claimant ineligible for
benefits…even though the claimant’s employment may have been terminated."
In recommending the 1963 amendment, the Industrial Commissioner stated that the
bill will minimize duplication of vacation and holiday pay by unemployment
benefits in consonance with sound unemployment insurance principles. As a
result of the 1963 amendment, Section 591.3 of the Law now reads:
"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 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."
It thus appears that the
Legislature was cognizant of the problems that had arisen in administering the
original statute dealing with payments for vacation periods. Having considered
the statements of the sponsor of the 1963 amendment and of the administrator of
the unemployment insurance program, we conclude that the Legislature abandoned
its original concepts as to vacation periods and payments therefore and that,
by virtue of such amendment, Section 591.3 of the Law no longer views a vacation
period as a respite from work. No longer is it material that vacation payments
be a bonus for past services rendered. No longer does a claimant’s eligibility
for benefits depend on the existence of an employer-employee relationship. The
final sentence of Section 591.3(c) is specific and clear. Accordingly, we
conclude that a claimant is ineligible to receive unemployment insurance
benefits where he was duly paid for a vacation period or a holiday duly
designated in advance, "irrespective or whether the employment has or
has not been terminated." (Underscoring supplied)
In view of our present
position, we reaffirm the decision of the Board in Appeal Board 107,486, and we
deem that the decision of the Board in Appeal Board 153,497, is no longer
binding.
Decision: The initial determination of the
local office is sustained.
The decision of the referee
is reversed.
Dissenting Opinion: I must disagree with the position
taken by the majority in these cases. I view the circumstances herein as being
no different from those of Appeal Board 153,497, wherein the Board concluded
that there was no legislative intent to have the provisions of Section 591.3(c)
of the Law apply to cases where the employment had terminated in advance of the
vacation period. As the Board said therein, after citing the statute and
underscoring the words "irrespective of whether the employment has or has
not been terminated.":
"It
should be noted that the position emphasized above applied to a situation where
a claimant, who has been on a scheduled paid vacation and then is no longer
employed will nevertheless not be eligible to receive benefits when the said
claimant, within 30 days after the expiration of the vacation period, receives
payment therefore. It appears the legislature in enacting the said statute, did
not contemplate a situation where a claimant’s employment has been terminated,
sometime prior to the scheduled vacation, which had been fixed while the said
claimant was still employed and the claimant is prepaid the earnings for that
vacation. Hence, since the employer-employee relationship in the present case
was terminated by claimant’s discharge on March 14, 1969, before the advent of
her vacation period, we hold that the money paid to claimant at the time of her
discharge did not constitute the two weeks in issue as a paid vacation within
the intent of Section 591.3(c) of the Law."
It should be noted that the
Board has remained of the same view in respect to this issue, despite two
subsequent applications by the Industrial Commissioner (Appeal Board 157,383A
and 158,349A).
In each of the cases, under
review herein, the very same situation prevails, with minor differences not
pertinent to the overall problem. Essentially, during the period in issue, the
employer-employee relationship did not exist. Despite the fixation of the
specific vacation period or holiday, and regardless of the method of such
fixation, the termination of the employment relationship prior to the
commencement of the period in issue precludes the application of the statute
thereto. This conclusion is in accord with the view expressed in the cited
decision, supra and the same result prevail herein. I therefore, vote to
affirm the decisions of the respective referees.
A.B. 161,000
Referee’s Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective May 30,
1970, only because it was a paid holiday for which no benefits are payable, and
charging claimant with an overpayment of $12 in benefits, ruled to be
recoverable, is overruled. The initial determination holding that claimant
wilfully made a false statement to obtain benefits, by reason of which a
forfeiture of eight effective days was imposed as a penalty in reduction of
claimant’s future benefit rights, is modified by reducing the forfeit penalty
to four effective days.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a sewing-machine
operator, worked for a dress manufacturer for more than seven years until March
27, 1970, when she was laid off due to a lack of work. Claimant’s union is in
contractual relations with her employer. The collective bargaining agreement
between claimant’s union and her employer provides that the employer was to pay
claimant for certain holidays, including Christmas Day, December 25, 1969, and
Memorial Day, May 30, 1970. Claimant knew that she was entitled to be paid for
those holidays. The insurance booklet issued by the local office to claimant contained
printed instructions that she mark the booklet with "N" to indicate
no work at all on that day; with a "Y" to indicate some work on that
day; with a "P" to indicate that claimant "received or will
receive holiday or vacation pay" for such day.
Claimant marked her
insurance booklet with a "P" for December 25, 1969. She marked with a
"N" for May 30, 1970, because she did not expect to be recalled to
work before June 30, 1970. Claimant knew that she was usually paid for holidays
after she returned to work. She was recalled to work on June 15 and given the
holiday pay for May 30, 1970 on June 23, 1970.
Claimant filed an
additional claim for benefits effective April 3, 1970. On June 5, 1970, when
she certified for benefits for the statutory week ending May 31, 1970, claimant
stated that she was totally unemployed on each day of that statutory week,
including May 30, 1970. She knowingly did not certify that she would be paid
for the holiday, May 30, 1970. Claimant was paid benefits in the amount of $12
for May 30, 1970.
Opinion: We do not agree with the
conclusion of the referee that since claimant was not taking time off from work
on May 30, 1970, for purposes of rest, it was not a paid holiday for which no
benefits are payable within the meaning of Section 591.3 of the Law.
The primary issue herein is
whether or not a claimant, whose employment was terminated prior to a duly
designated holiday, and is duly paid therefore, is eligible for unemployment
insurance benefits for such designated holiday.
In Appeal Board 160,995,
issued simultaneously herewith, we have reviewed the statute dealing with
vacation periods and holidays as originally enacted in 1958, and as amended in
1963 (Labor Law, Section 591.3). In that case, we concluded that a claimant is
ineligible to receive benefits where he was duly paid for a vacation period or
for a holiday which had been duly designated in advance, irrespective of
whether the employment has or has not been terminated. Our decision in Appeal
Board 160,995, is hereby incorporated herein by reference. Accordingly, we
conclude that the claimant herein is not eligible to receive benefits for May
30, 1970, because it was a paid holiday for which no benefits are payable,
within the meaning of Section 591.3 of the Law.
The benefits paid to
claimant for that day constitute an overpayment, which is recoverable, because
she falsely stated that she would not receive pay for that holiday. Since
claimant was overpaid in benefits, the wilful misrepresentation which she made
in certifying that she would not receive pay for the holiday on May 30, 1970,
requires a forfeit penalty of eight effective days.
Decision: The initial determinations of the
local office are sustained.
The decision of the
referee, insofar as appealed from is reversed.
Index No. 1320D-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 29, 1971
INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
Lack of Work or Industrial Controversy
Appeal Board Decision 160,176
EMPLOYER’S ASSUMPTION OF CLAIMANT’S
DUTIES DURING STRIKE
An office worker loses
employment because of an industrial controversy, and is subject to a suspension
from benefits, if laid off when his employer, relieved of supervisory responsibilities
as the result of a strike of production workers in the establishment, decides
to perform his duties.
Referee’s Decision: The initial determination of the
local office suspending the accumulation of benefit rights by claimant during a
period of seven consecutive weeks, effective May 6 through June 23, 1970,
because she lost her employment due to an industrial controversy in the
establishment in which she was employed, is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a bookkeeper, worked as
the office manager of a sheet metal and roofing firm which employed union sheet
metal workers, roofers, and engineers. A number of the sheet metal workers
performed their services in the building where the employer had its offices and
a shop. The other sheet metal workers and the roofers worked outside the
premises at various job sites. On May 5, 1970 the sheet metal workers struck
the employer. Claimant was laid off at the end of that day. The principals of
the employer decided to perform claimant’s duties during the strike because
they had no supervisory duties to perform.
Opinion: Section 592 of the Labor Law
applies to all cases of unemployment resulting from strikes, lockouts and other
industrial controversies (Matter of Heitzenrater, 19 NY 2d 1, 7,
affirming 22 A.D. 2d 542, affirming Appeal Board 87,617.) The test to be
applied in such cases is whether or not an industrial controversy exists in
the establishment where claimant has been employed (Matter of Ferrara,
10 N.Y. 2d 1,9 modifying 11 A.D. 2d 171, affirming Appeal Board, 63,261 et al).
The evidence herein demonstrates that claimant and a number of the striking
sheet metal workers worked in the same building, which contains both the
offices and the shop of the employer. This constitutes the establishment of the
employer. It is immaterial that claimant was not a striker, or that neither the
office nor the building in which claimant worked was under construction or
repair at the time claimant was separated from her employment. Since the strike
occurred in the establishment in which claimant was employed and it caused the
interruption of her employment, she is subject to the suspension of her
benefits as provided in Section 592 of the Law. (See Appeal Board, 87,218; 129,532
through 129,535; 150,742).
Decision: The initial determination of the
local office is sustained. The decision of the referee is reversed.
Index No. 1730.3
1735 D-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 30, 1971
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Vacation
Violation of Terms of Employment
Appeal Board Decision 162,485
POSTPONEMENT OF PROMISED VACATION
Leaving of employment is
with good cause when an employer, having agreed at time of hire to a vacation
after one year, breaches that agreement by postponing the vacation for a
substantial time.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective September
12, 1970, because she voluntarily left her employment without good cause, is
sustained.
Appealed By: Claimant
Findings of Fact: Claimant, a bookkeeper, worked for
the employer herein for 11 months from October 14, 1969 through September 11,
1970. At the time of hire it was agreed that after claimant had worked one year
she would have one week of vacation. Early in September 1970 claimant requested
that she be permitted to take her vacation in October. When the employer
rejected this request, claimant asked to be allowed to take her vacation in
December of 1970. The employer rejected this request and stated that claimant
would not be able to take her vacation until the summer of 1971. Claimant left
the job on September 11, 1970.
Opinion: The evidence establishes that the
employer breached the agreement of hire by refusing to allow claimant to take
her vacation after she had worked one year. Accordingly, we conclude that
claimant had good cause to leave the job when the employer unreasonably
insisted that she wait until the following summer to take her vacation.
Decision: The initial determination of the
local office is overruled.
The decision of the referee
is reversed.
Index 1150-A2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 10, 1971
INTERPRETATION SERVICE -BENEFIT CLAIMS
MISCONDUCT
Falsification of employment application
Appeal Board Decision 162,012
CONCEALMENT OF ILLNESS AT TIME OF
HIRE
A false statement on an employment
application made to conceal an illness or disability (epilepsy) constitutes
misconduct.
Referee's decision: The initial determinations of the
local office disqualifying claimant from receiving benefits effective August 6,
1970, because he lost his employment due to misconduct in connection with his
employment and, in the alter- native, because he voluntarily left his
employment without good cause by provoking his discharge, remain in effect
because the claimant failed to request a hearing thereon within the statutory
period.
Appealed by: Claimant
Findings of fact: Claimant, a tester desk man, worked
for a public utility from February 16 through August 5, 1970. Prior to being
hired, claimant executed a pre-placement medical questionnaire in which he
stated, among other things, that he never had epilepsy. He certified thereon
that his answers were true. In sub- mitting the subsequent employment
application, claimant agreed that any false statement, misrepresentation or
failure to disclose pertinent information made at any time during the
employment procedure may be sufficient to result in his dismissal. On July 13,
1970, claimant became ill and was taken to the employer's medical department.
On the following day, he admitted that his illness resulted from an epileptic
seizure and that he has had epilepsy for many years. Claimant was discharged
because of the false answer in his medical questionnaire.
Claimant filed an original
claim for benefits effective August l0, 1970. On September 9, 1970, the local
office mailed to claimant the initial determinations herein. Al though claimant
did not immediately read the instructions regarding the request for a hearing
he did so about two weeks later. On September 23, 1970, claimant appeared at
the local office and requested a hearing.
Opinion: The credible evidence establishes
that claimant made a request for a hearing on September 23, 1970, when he
appeared at the local office. Such request was made within the period
prescribed by the statute and was timely. Accordingly we must consider the
merits of the initial determinations issued herein. The evidence establishes
that claimant submitted false medical information in connection with his
application for employment. Admittedly he concealed the fact that he had
suffered from epilepsy for many years. His reason for doing so, i. e. in the
past, whenever he told tile truth he was not hired, does not justify such
concealment. Falsification of his application for employment constituted
misconduct in connection with his employment.
Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective August
1910, because he lost his employment due to misconduct in connection with his
employment is sustained.
The decision of the referee
is reversed. (February 16,1971).
Index No. 765.11
795.11
820.1
875.3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
August 11, 1971
INTERPRETATION SERVICE-BENEFITS CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Absence from jurisdiction
Filing and certifying requirements
Seeking other employment
Appeal Board Decision 164,715
REFUSAL TO GIVE DETAILS OF JOB
INTERVIEW
Refusal to divulge the
details of an alleged job interview in another city justifies denial of
benefits for unavailability on the days of absence from the local office jurisdiction
and for failure to report due to such absence.
Referee’s Decision: The revised initial determination
of the local office holding claimant ineligible to receive benefits effective
February 9, 1971, only, and effective February 16,1971, only, because he failed
to comply with reporting requirements, and the initial determination holding
claimant ineligible to receive benefits effective February 8, 1971, only,
because he was not available for employment, are overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant was last employed as a
manufacturer’s representative at a terminal salary of $30,000 a year until
December 13, 1970. He filed an original claim for benefits effective January
18, 1971 and received four payments. He is scheduled to report to the insurance
office on Tuesdays. Claimant failed to report to the insurance office on
Tuesday, February 9 and Tuesday, February 16, 1971. Claimant alleges that on
Monday, February 8, 1971, he had an appointment with a prospective employer in
Boston. He left New York on Monday morning, February 8, and did not return to
New York until the evening of February 9. He failed to report to the insurance
office on Tuesday, February 16, because he was in Chicago in that day on a job
interview. He refused to give any details regarding his interviews to the
insurance office or at the referee hearing. He would not divulge such
information because he felt it would be detrimental to his efforts to find
employment.
Opinion: The Court has held that a claimant
is not entitled to receive benefits if he refuses to answer questions relating
to his job efforts. (Matter of Sorrentino 277 App. Div. 1073, rev’g Appeal
Board 20,361)
Since he persisted in his
refusal to divulge the names of or details of the interviews with the
prospective employers claimant was not eligible for benefits on the days in
issue.
Decision: The revised initial determinations
of the local office holding claimant ineligible to receive benefits effective
February 9, only, and effective February 16, 1971, only, because he failed to
comply with the reporting requirements are sustained.
The initial determination
holding claimant ineligible to receive benefits effective February 8,1971 only,
because he was not available for employment is sustained.
The decision of the
referee, insofar as appealed from, is reversed. (July 8, 1971)
Index 915A-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August 19, 1971
INTERPRETATION SERVICE - BENEFIT CLAIMS
REDUCTION DUE TO PENSION
Pension or retirement payment: definition
APPELLATE DIVISION DECISION
Matter of Benjamin Landsman
INDIVIDUAL PLAN FOR RETIRED EMPLOYEE
A weekly payment following
retirement made by an employer in lieu of claimant's participation in the
company's general pension plan may properly be held to be a "pension or
retirement payment" under Section 600 Of the Law, even though payable only
for a limited number of years.
DECISION
Appeal by the claimant from
a decision of the Unemployment Insurance Appeal Board ruling claimant's benefit
rate to be zero because he was receiving payments from a pension plan financed
solely by his employer (Labor Law, §600).
There is no real question
here that claimant, 72 years old at the time he left employment, had retired
(compare, Matter of Guilfoyle [Dow Jones & Co. - Catherwood], 36 AD
2d 108). Rather the issue is the nature of benefits he is receiving from the
employer. Briefly the record reveals that the employer inaugurated a pension
plan when claimant was 65 years old and thus ineligible for coverage under the
plan. However, the board of directors of the employer on the termination of his
employment voted to pay him (or his wife if he died) $65 a week for 3 years because
of his many years of faithful service. The board found that this payment was in
lieu of his participation in the retirement plan and thus constituted pension
or retirement payments and not severance payments as claimant asserted. We find
no basis to disturb this determination. Matter of Walker [Reader's Digest -
Catherwood], (28 AD 2d 256) is not factually apposite. Nor can we accept
claimant's argument that the payments here involved did not require a reduction
pursuant to section 600. Claimant's construction of the words "under the
plan" is much too narrow considering the legislative intent of preventing
"pensioner-claimant" windfalls in the enactment of section 600 (Matter
of Guilfoyle [Dow Jones & Co. - Catherwood], supra, at 109-110);
N.Y. State Legis. Annual, 1963, p. 370). In our opinion the board could
properly find on the facts present in the instant case that section 600 was
applicable, and, accordingly, its decision must be affirmed.
Decision affirmed, without
costs. (June 28, 1971)
Index 1735 A-4
1290 A-13
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September 15, 1971
VOLUNTARY LEAVING - BENEFIT CLAIMS
Violation of terms of employment
Wages: insufficient
REFUSAL OF EMPLOYMENT
Wages: general
Appeal Board Decision 165,156A
UNFULFILLED PROMISE OF WAGE INCREASE
An agreement made in the
course of employment to increase pay, with the amount and date specified,
becomes, in the absence of special circumstances, a condition of the employment
which, if not fulfilled, justifies voluntary leaving and subsequent refusal to
return without such increase. (For an example of "special
circumstances", see A.B. 50,097; A-750-1374)
Referee's decision: The initial determinations of the
local office (1) disqualifying claimant from receiving benefits effective
October 4, 1970, because she voluntarily left her employment without good
cause, (2) disqualifying claimant from receiving benefits effective November
18, 1970, because without good cause she refused employment for which she is
reasonably fitted by training and experience, (3) charging her with a
recoverable overpayment of $88 in benefits are overruled.
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 eight effective days was
imposed as a penalty in reduction of claimant's future benefit rights is
modified by reducing such penalty to four effective days.
Appealed by: Industrial Commissioner and
claimant
Findings of fact: Claimant, an alteration hand,
worked for the employer for three years until October 3, 1970. Her rate of pay
was $2.50 per hour until mid-September, 1970, when she requested an increase to
$3 an hour. A week later, the employer agreed to pay claimant $3 per hour
beginning with the week ending October 3, 1970. When claimant received her pay
for the week ending October 3, 1970, she found that she had been paid at the
rate of $2.75 per hour. She left the job after the employer refused to pay her
$3 per hour as promised. The prevailing wage in New York City for alteration
hands was $2.54 per hour.
Claimant filed an
additional claim for benefits, effective October 19, 1970, and stated that she
lost her last job because it was "slow, no work". Claimant was paid
benefits totalling $88 through November 1, 1970.
On November 16, 1970,
claimant was referred by the local office to her last employer who offered to
pay her $2.75 per hour. She did not accept the referral nor did she contact the
employer. On November 25, 1970, the employer informed the local office that it
no longer had claimant's job open.
Opinion: We reject the contention of the
Industrial Commissioner that claimant quit the job because of dissatisfaction
with her wages. The credible evidence establishes that claimant left her job
because the employer breached its agreement to pay claimant at the rate of $3
per hour, effective the week ending October 3, 1970. Claimant had good cause to
quit the job because of employer's breach of said agreement. Accordingly, there
was no overpayment of benefits to claimant.
When claimant stated that
her last employment had ended because it was "slow-no work", she was
aware that she had quit the job because the employer had broken its agreement
to pay her $3 per hour. Thus, her statement constitutes a wilful
misrepresentation made to obtain benefits requiring a forfeiture penalty of
four effective days.
We have reconsidered our
original ruling that claimant's refusal of reemployment was without good cause
because the job offered was suitable and paid more than the prevailing wage for
such work in the locality. We agree with the referee's conclusion that claimant
had good cause to refuse reemployment under the very same terms that justified
her leaving the job.
The Industrial Commissioner
urges that different rules should apply, depending upon when the agreement was
made. He contends that when the promise of an increase in pay is made at the
time of hire it becomes a condition of the employment, whereas a promise made
by the employer after the employment has commenced does not constitute a
condition of the employment. We reject such contentions. We perceive no basis
upon which to distinguish agreements to grant a pay increase at a definite date
because of the difference in time when such agreements are made. In this case,
the employer's agreement to increase claimant's rate of pay at a definite date
constituted a new agreement between the parties for the continuance of
claimant's employment. Such agreement is subject to the same interpretation as
would be an original contract of hire. If the employer materially violates such
an agreement and reneges on his promise to increase claimant's pay at the time
agreed upon, it provides good cause for the claimant to quit the job.
The Industrial Commissioner
further contends that since the employer offered the prevailing wage in the
locality, claimant's refusal of suitable employment was without good cause.
Ordinarily this rule obtains. However, it is not only inequitable, but it is
unconscionable to invoke the statutory disqualification of refusal of
employment without good cause, where an employer has broken his agreement to
pay claimant more than the prevailing wage and later offers a lesser sum than
agreed upon, and takes refuge in the fact that the wage he offers is not
substantially less favorable to claimant than the prevailing wage for such work
in the locality. In such case it is not the prevailing wage, but the wage
agreed upon that is material and relevant. It would be absurd to rule that
claimant had good cause to quit the job because the employer had dealt unfairly
with her and then deny her benefits because she refused to resume the
employment under the same conditions which had justified her leaving the job.
Accordingly, we conclude
that claimant had good cause to refuse the offer of reemployment at $2.75 per
hour made by the employer whose employment she had left with good cause because
he had breached his agreement to pay her $3 per hour.
Decision: The decision of the Board filed
April 6, 1971 (Appeal Board, 163,275), is hereby rescinded.
The initial determinations
of the local office disqualifying claimant from receiving benefits effective
October 4, 1970, because she voluntarily left her employment without good cause
and charging claimant with an overpayment or $88 in benefits, ruled to be
recoverable, are overruled.
The initial determination
disqualifying claimant from receiving benefits effective November 18, 1970 on
the ground that without good cause she refused employment for which she is
reasonably fitted by training and experience is overruled.
The initial determination
holding that claimant wilfully made a false statement to obtain benefits by
reason of which a forfeiture of eight effective days was imposed as a penalty
in reduction of claimant's future benefit rights is modified to reduce the
forfeiture penalty to four effective days, and as so modified, is sustained.
The decision of the referee
is affirmed. (July 16, 1971)
Dissenting opinion: Our original views on the issue
now under reconsideration were expressed in Appeal Board, 28,204. We held that
the voluntary leaving of employment and the refusal of a subsequent offer of
reemployment were to be considered as parts of a whole and that if a claimant
had been ruled to have left the employment with good cause, then the refusal of
reemployment under the same terms and conditions was also with good cause.
Similarly, it was held that if the leaving had been without good cause and the
statutory penalty had been imposed on the claimant, there should be no penalty
imposed for the refusal because this would be the imposition of a double
penalty for the same offense. (cf. Appeal Board, #6,631)
The Appellate Division of
the Supreme Court, Third Department, in Matter of Crowe, 280 App. Div.
427, aff'd. 305 N.Y. 699, rev'g. Appeal Board 28,204, did not agree with the Board's
concept of "unitary treatment" for a "single offense". The
Court said at page 430:
The statute, however,
carefully separates voluntary separation from refusal of employment. If they
are separate events, as they certainly are in this record, they may not be
given unitary treatment. The Division of Placement and Unemployment Insurance
itself set in motion the "offer of employment" which was distinct in
time and circumstance from the original separation.
This offer of employment,
even though from the former employer, fulfilled the statutory definition of an
offer of employment and the effect of the separately provided penalty for
"Refusal of employment" cannot be avoided by the fact that the State
agency selected the same employer to make an offer of renewed instead of
entirely new employment.
The Court characterized the
leaving and the refusal of employment as "separate events" and then
added the comment "as they certainly are in this record." Thus, the
Courts clearly limited the effect of their decision to separate occurrences,
separated in time by the passage of a significant period.
In its decision in Matter
of Bonaparte, 26 AD 2d 843, aff'g. Appeal Board 123,300, the Court, by
adoption of certain language from the referee's decision, imposed a further
limitation upon the concept of the relationship between the old and new
employments. There was no issue of voluntary leaving of employment in the case
because the employer making the offer was the penultimate employer prior to the
filing of the claim for benefits and the claimant's last employment ended under
non-disqualifying conditions. The claimant refused the offer of hire because,
during his prior employment of eight months duration, which had terminated by
his quitting the job nearly three months, earlier, he had been required to work
a considerable amount of overtime without any additional pay therefor. By
implication, the referee conceded that this reason would have been good cause
for claimant to leave the employment had this issue been presented to him.
However, in referring this contention to the issue of refusal, the referee
said, "The employer offered terms of reemployment to claimant at $100.00
for a five-clay, 4O-hour week, covering the job as a truck driver. In the event
the employer did not comply substantially with the terms of hire, claimant
would have been in a position to leave such employment with good cause.
Claimant has not established good cause for refusing the job when he
did." (emphasis supplied)
The Court, by adopting the
referee's language quoted above, thus indicated that, even though the good
faith of the employer might be questionable and the claimant might have good
reason to anticipate the recurrence of the same situation that caused the
leaving of the employment, it was incumbent on the claimant to accept the offer
of rehire.
In the instant case the
employer breached his contract with the claimant by not paying the full amount
of the promised increase. Such a breach of contract has always been held to be
a material change to the detriment of the claimant so as to justify the leaving
of the employment. But, the offer of rehire at the new wage, established
unilaterally by the employer's act, was a good offer of employment to anyone
else; why not so when made to claimant?
I agree with the majority
of the Board that equity and good conscience would require a ruling that this
claimant's refusal was also with good cause. However, I am constrained not to
do so because the decisions in Matter of Crowe, supra, and Matter of
Bonaparte, supra, preclude this possibility. These decisions and the
principles they establish, constitute a firm bar to the application of the
ruling made on the issue of voluntary leaving, to the subsequent issue of
refusal of employment, merely because the same parties, are involved as
employer and employee and the same job is under consideration. These decisions
establish these issues as being separate and distinct from each other and
requiring separate consideration. Accordingly, I must dissent from the ruling
of the majority and hold that the claimant's refusal of the offer of
reemployment was without good cause. I vote to adhere to our original decision.
COMMENTS
1. By this decision the
Appeal Board has held that an agreement to increase an employee's rate of pay
at a definite future date and for a specified amount is binding whether made at
time of hire or subsequently, and that "if the employer materially
violates such agreement and reneges on his promise...at the time agreed on, it
provides good cause for the claimant to quit the job."
2. An opposite conclusion
was reached in A.B. 50,097 (A-750-1374). There, however, the rule notes special
circumstances, such as poor business conditions and the fact that claimant had
received several increases in the past to the employer's maximum for the
position.
3. In the instant case the
Board also found that refusal to return to work with such employer at less than
the agreed rate of pay is with good cause despite the fact that such lesser
rate met the test of prevailing wages, stating that it would be
"unconscionable" to rule otherwise.
Index 1640B-5
1290A-11
NEW YORK STATE DEPARTMENT OF IAOOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
October 29, 1971
INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Experience or training
REFUSAL OF EMPLOYMENT
Wages
APPELLATE DIVISION DECISION
Matter of James Bus, 374 AD 2d 98
REASSIGNMENT IN LIEU OF LAYOFF
Choosing layoff rather than
accepting transfer to another job because it would entail a substantially
reduced rate of pay is a leaving of employment without good cause, provided the
offer meets the statutory tests, including those of suitability and prevailing
wages.
DECISION
This an appeal by the
employer from a decision of the Unemployment Insurance Appeal Board, filed
January 7, 1971, which affirmed a Referee's decision sustaining initial
determinations of the respondent Industrial Commissioner granting benefits to
the claimant.
The B Steel Company
employed claimants in various positions and departments in its Lackawanna steel
plant. A lessening of the amount of work needed by the company resulted in a
reduction of the working force and eventually resulted in claimants not being
employed at B.
Claimants contend that they
had good cause to refuse the jobs offered to them by B prior to being laid off.
This in turn depends on whether the board was correct in concluding that a job
offer at a wage which would result in a reduction of earnings of 15 percent
below the level of prior earnings was so substantial that claimants had good
cause to refuse such employment.
B's hiring policy is to
start new employees at the lowest entry-level job in one of the plant's numerous
departments. As the employees acquire seniority, they fill jobs having higher
classifications when such vacancies occur in their department. If there is a
reduction in the work force, progression would be downward. Those with the most
seniority would bump those in the department having less seniority. In the
event that there are no longer a sufficient number of jobs in a department for
those employed, the employee who is no longer required in a department is given
a "return notice" and sent to the employment office. If work
is still not available in any of the plant's departments the employee is laid
off. If work is available in other departments, the employee is offered such
work. Upon transfer to the new department, if the offer is accepted, the
employee becomes the lowest person in terms of seniority and thus would have
the least chance of progression to higher jobs in the new department. However,
the employee would not lose his seniority in his old department and would be
recalled to his original department when business improved.
Here, claimants had
progressed in their departments to jobs which were rated above their
entry-level job. As a result of reductions in the work force, claimants lost
their jobs in their own departments but were offered jobs in other departments.
Most of the jobs offered were as laborers in the coke oven and structural
shipping departments. The rate of pay for these jobs was $2.765 an hour. The
claimants refused the jobs primarily because they felt that the reduction in pay
was very great. Had the laborer jobs been in their own department claimants
would have been compelled to accept them or been subject to discharge. As a
result of refusing the jobs offered, claimants were laid off and filed for
benefits.
After a hearing, the
referee affirmed the initial determinations granting claimants employment
benefits. The referee ruled that because a substantial reduction of earnings
would result if the jobs offered were accepted, claimants' refusal was with
good cause. In addition, the referee, without specifying, determined that most
of the claimants were suited to the offered employment by experience. The
Unemployment Insurance Appeal Board following its own prior decisions and
without passing on the issue of whether claimants were suited to the jobs
offered, affirmed the referee's decision on the ground that the jobs offered
would have resulted in earnings substantially below that which they had been
earning when laid off. The reduction, being at least 15 percent even under the "Earnings
Protection Plan" negotiated by B and the United Steel Workers of America,
was substantial and claimants' refusal was therefore with good cause.
There is evidence in the
record from which to conclude that there would have been at least a 15 percent
reduction in wages from the jobs claimants held during the preceding twelve
months. Thus, the board's finding in this regard should be affirmed (Matter
of Rumsey Manufacturing Corp [Corsi], 296 N.Y. 113; Matter of Weber
[Catherwood], 32 AD 2d 697). Similarly, the board's rejection of B's
contention that claimants would have received more than the base pay given to
laborers as claimants gained seniority is also supported by the record.
Claimants would have been the lowest in seniority in their new departments and
thus would have had the least opportunity to be assigned jobs with higher
classifications. In addition, the labor force in the higher classifications in
the departments where the proposed assignments were to be made was stable and
openings of a permanent nature were infrequent.
It is well established that
the board is the final arbiter of factual issues and also that it is charged
with the responsibility of interpreting the various provisions of the Labor Law
relating to unemployment insurance (Matter of Marsh [Catherwood],
13 NY 2d 235, 239).
The question for this court
is whether or not there is a rational basis for the board's conclusion that an
offer of employment at a wage substantially below that which the employees had
been earning constituted good cause for refusal of the offer of employment.
(See Matter of Marsh [Catherwood], supra 240)
"The Act [Unemployment
Insurance Law] 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 [J. W.
Mays. Inc. - Catherwood], 13 AD 2d 204, 205-206." (Matter of
Shanley Catherwood, 27 AD 2d 496, 499)
In the Shanley case
(supra) this court reversed the board's interpretation of what constituted good
cause for the refusal of employment pursuant to subdivision 2 of section 593 of
the Labor Law.
The said subdivision 2 of
section 593 contains four subparagraphs which specify what shall be deemed not
to be without good cause and the fact that the wage offered is less than what
the claimants had been previously earning is not mentioned therein. Since the sole
ground or fact relied upon by the board for finding there was good cause for
the refusal of employment is that the wages were substantially less than that
which the employees had been earning in their capacity as skilled workers, the
determination was erroneous as a matter of law. (See Matter of Matyevich
[Catherwood], 15 AD 2d 397; cf. Matter of Crowe [Corsi], 280 App.
Div. 427 affd. 305 N.Y. 699).
To hold otherwise would
mean that workers in this State would be subsidized by unemployment insurance
benefits when by accepting work for which they are fitted by experience and
training they could support themselves. Such a result would be contrary to the
purposes of the Unemployment Insurance Law as set forth hereinabove (Matter
of Matyevich [Catherwood], supra, 388-390). The result that workers must
accept suitable employment or be disqualified from benefits does not prevent
such workers from seeking higher paid positions while performing the new
employment. The theory relied upon by the board in this case appears to be an
application of the rationale applicable to situations involving
"prevailing wage" rather than an application of the established basic
rules governing what constitutes good cause for the refusal of an offer of
otherwise suitable employment.
As noted hereinabove the
board has not determined whether or not the jobs offered are those for which
the claimants were fitted by training and experience. One cannot refuse
suitable full time employment for which he is equipped merely because a
different type of employment is preferred. (Matter of Ranno [Catherwood],
21 AD 2d 721). A percentage reduction in salary or wages cannot alone be
controlling --"pragmatism" is a word of consequence in the field of
Unemployment Insurance Law.
The decision appealed from
should be reversed and matter remitted for further proceedings not inconsistent
herewith, with costs to appellant against the Industrial Commissioner. (June
24, 1971)
COMMENTS
1. This decision affirms
the long-established rule that, refusal to exercise "bumping rights"
is not in itself disqualifying, and that the job offered in lieu of layoff must
be evaluated as to suitability in the same manner as any other job offer. At
the same time, however, the Court strikes down the practice of comparing the wages
of the offered job with previous earnings, and holds that a determination in
claimant's favor on the ground that the wages were substantially less than
those which he had been earning "was erroneous as a matter of law."
2. When a claimant chooses
layoff over transfer to another job, the issue is one of voluntary leaving. To
resolve the issue, whether or not "bumping rights" are involved, the
standards of Section 593.2 of the Unemployment Insurance Law regarding refusal
of employment must be applied. This includes the requirements that the offer
must be one for which claimant "is reasonably fitted by training and
experience," and that the wages, hours and conditions offered are not
"substantially less favorable to the claimant than those prevailing for
similar work in the locality."
3. The reasoning of the
Court in this voluntary leaving case is also applicable to issues of refusal of
employment. Whether the offer is made by claimant's last employer or any other
employer, a determination in such cases can no longer be based on comparison
with previous earnings.
4. The rule or this release
should not be applied to instances of voluntary leaving because of a wage
reduction (usually for economic reasons) without a change of duties. The
principles enunciated under Index 1735 of the Interpretation Service continue
to govern such situations.
Index 815.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 10, 1971
INTERPRETATION SERVICES - BENEFIT CLAIMS
Filing and certifying requirements
Appeal Board Decision 166,767
WORK PRIOR TO FILING
Refusal to identify the
firm for which claimant last worked constitutes failure to comply with
registration requirements, regardless of whether such work was performed as
employee or in self-employment.
Referee's decision: The initial determination of tile
local office holding claimant ineligible to receive benefits effective April 1,
1971, because he failed to comply with registration requirements, is overruled.
Appealed by: Industrial Commissioner
Findings of fact: Claimant was last employed as an
engineer in repairing data processing machines. This employment terminated by
lay-off on December 31, 1970. He filed an original claim for benefits effective
January 4, 1971, and received ten benefit payments through March 21, 1971. He
was employed from March 22 through March 26, 1971.
Claimant filed an
additional claim for benefits on April 1, 1971. He refused to supply the
insurance office with the name and address of his last employer because he
believed that he had worked as an independent contractor and had been
self-employed, and because he believed that it would not be to his best
interest to have this firm learn that he was claiming unemployment insurance
benefits.
Opinion: The credible evidence establishes
that claimant failed to comply with registration requirements because he
refused to furnish pertinent information concerning his claim to the insurance
office. It is immaterial whether claimant worked in the week in question as an
employee or in self-employment. Claimant is required to furnish the insurance
office with information regarding the work he had performed prior to filing his
claim. It has been held that a claimant is not entitled to receive benefits if
he refuses to answer questions relating to his job efforts (Matter of
Sorrentino, 277 App. Div. 1073, rev'g Appeal Board, 20,3611 Appeal Board
164,715). Accordingly, we conclude that claimant's refusal to answer questions
concerning his last employment constitutes a failure to comply with the
registration requirements.
Decision: The initial determination of the
local office is sustained.
The decision of the referee
is reversed. (October 15,1971).
Index 1715-3
2050A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 25, 1972
Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Attendance at school training
SECTION 599
Voluntary quit to attend training
Appeal Board Decision 165,640
QUIT TO ATTEND TRAINING
Leaving employment to
attend vocational training is without good cause, in the absence of special
circumstances. (See "Comments")
Referee's decision: The initial determinations of the
local office holding claimant eligible to receive benefits effective February
22, 1971, without disqualifying conditions and granting her approval, pursuant
to Section 599 of the Law, for vocational training, are sustained.
Appealed by: Employer
Findings of fact: Claimant was employed part-time as
a cashier in a department store from September 16, 1970 until February 19,
1971. She worked evenings, four hours a day on four days a week, starting at
5:45 p.m. In addition thereto, since September 1969, claimant had been
attending a college as a fully-matriculated day student, majoring in
Correctional Administration. Her school hours were usually 9:00 a.m. to 2:00
p.m. For the semester commencing February, 1971, claimant decided to increase
the number of credit courses she was carrying and her school hours were
increased accordingly until 3:00 p.m. Claimant found that she could not
maintain her augmented school schedule and studies and continue to work, as she
had been doing previously. She quit her employment because she considered her
education to be more important than her work, filed a claim for benefits and
applied for approval of her course of study as vocational training under
Section 599 of the Law. Approval was granted and she received three benefit
payments of $21.00 each, through March 21, 1971. Such payments were stopped
upon receipt of the employer's objection to her eligibility.
In the area where claimant
resides and was employed, there has been a significant expansion of the
population. As a result, there has been an increase in the number of mercantile
establishments in the area. New shopping centers and malls have been
constructed and there has been a significant increase in the number of
positions as cashier and salesperson. Claimant's occupation is in demand in
this area and there are numerous opportunities for such employment in this
area.
Opinion: Section 599 of the Law, insofar as
is applicable, reads as follows:
Vocational
and related 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.
..which the ommissioner has approved and continues from time to time to approve
for the claimant.
This language clearly
indicates a condition precedent. A claimant must be eligible to receive
benefits and does not become ineligible by reason of attendance at a training
course approved by the Industrial Commissioner. However, the claimant herein
left her employment on her own choice to continue her studies unhampered
by her obligations to her employer. She left the employment without good cause
and therefore this condition precedent has not been met.
It is argued that the Appeal
Board precedent decisions in this type of case would be inconsistent should
this claimant be denied approval under Section 599.
In Appeal Board, 151,659,
we said:
".
..the Board has repeatedly ruled that although it is commendable for a worker
to leave his job in order to go to school and continue his education, however,
by doing so, he would be held to have left his employment without good cause
(Appeal Board, 21,948; 44,915; 30,538; 75,953)."
(Cf. Appeal Board 28,734;
78,335; 83,930; 113,009). The policy expressed has not been abrogated even for
claimants who left employment to obtain vocational training (Appeal Board
112,588; 122,171). The bare desire to obtain further education or vocational
training does not constitute good cause to leave employment. Other factors,
such as existed in the cases cited in argument on appeal herein, must be found
in each case before it can be said that a particular claimant had good cause to
leave employment for that purpose. In Appeal Board, 151,659 and cases cited therein,
it was held that there was no applicable disqualification from receipt of
benefits pursuant to Section 593.1 of the Law. The evidence indicated that, in
all instances, there was a leaving of employment with good cause, as in
Appeal Board, 151,659, where the claimant was given a leave of absence to
attend an upgrading course in skills useful to the employer and given under the
auspices of his union in agreement with the employer's association, and then
returned to employment with the same employer after completion of the course;
or the employment was temporary stop-gap work, obtained for the purpose of
providing the claimant with an income until the course should commence. Under
these circumstances, the claimant always had an unquestioned basic eligibility
to receive benefits without disqualification. In the instant case, this does
not appear to be so.
Assume, arguendo, that the
claimant had become unemployed through no fault of her own. The record
indicates that, even so, approval of her application under Section 599 could
not be granted. There is nothing in the record to indicate that claimant's
employment opportunities were substantially impaired because of existing or
prospective conditions of the labor market in the locality or in the state, or
reduced opportunities for employment in her occupation or skill.
The claimant did not have
good cause to leave her employment. She is subject to disqualification from
receipt of benefits for having done so and therefore she may not be accorded
approval of her vocational training under Section 599 of the Law. Claimant was
overpaid the benefits she received, but this overpayment is not recoverable.
Decision: The initial determinations of the
local office are overruled.
The employer's objections
are sustained.
The claimant is
disqualified from receiving benefits effective February 20, 1971, on the ground
that she voluntarily left her employment without good cause. She was overpaid
in benefits however, such overpayment is not recoverable.
The decision of the referee
is reversed. (December 15, 1971)
COMMENTS
- By this decision the Appeal Board affirms the
long-standing rule that leaving employment because it interferes with
attendance at school or college is generally without good cause. (See
release A-750-l53; Index 1620-4). It states "the policy expressed has
not been abrogated even for claimants who left employment to obtain
vocational training."
- In the instant decision, the Board also indicated that
a leaving of employment to attend vocational training may be with good
cause when such employment "was temporary stop-gap work, obtained for
the purpose of pro viding the claimant with an income until the course
should commence." This might apply, for example, to work secured
during the summer recess from vocational training which previously had
been approved for the claimant under Section 599.
Index l460A-10
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February 11, 1972
INTERPRETATION SERVICE-BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Vacation pay
Appellate Division Decision: Matter of Dante A. Faccio
and Appeal Board Decision 165,431A
PAID VACATION PERIOD: DEFINITION
If the period for vacation
had not previously been designated for a claimant, an accrued vacation payment
made by the employer upon discharge is severance pay and, therefore, in such
instance, a period following the discharge cannot be a "paid vacation
period" within the meaning of Section 591.3 of the Law.
Matter of Faccio
Appeal from a decision of
the Unemployment Insurance Board, filed October 8, 1961, which determined
claimant was entitled to benefits.
Claimant's employment
terminated on January 31, 1964, at which time he was finally discharged. He
received in addition to his salary the sum of $800, representing accumulated
earned vacation credits. No designation was made by the employer for a vacation
period under its union agreement. However, a letter dated January 30, 1964 was
delivered to claimant on January 31, 1964, advising him that he had earned a
certain number of days of vacation credit for 1963 and 1964 amounting to $800,
and "vacation pay [was] to start at date of termination February 3,
1964."
The board found claimant
was eligible to receive unemployment insurance benefits for the four-week
period immediately fol1owing his discharge. The question narrows to whether the
pay received by claimant as accumulated vacation credits was vacation pay or
severance pay. It has been firmly established that a dismissed employee, while
unemployed and attempting to find work may receive severance pay and yet be
entitled to unemployment insurance benefits.(Cf. Matter of Walker [Readers
Digest-Catherwood], 27 AD 2d 256,257). Not so, however, with vacation pay
designated for vacation purposes. (Cf. Matter of Friedman [Catherwood],
27 AD 2d 473). The requirement of subdivision 3, paragraph (b) of
section 591 of the Labor Law in regard to the employer designating time for
vacation purposes does not permit a mislabeling or arbitrary designation as
vacation pay. This was no vacation for claimant in the true sense of the word,
no respite from work with rest and relaxation and an expectation of return at
the end of the period. We find that the $800 paid to claimant was clearly a
dismissal payment, the right to which was earned by him during prior service. (Matter
of Walker [Readers Digest [Catherwood] supra.)
Decision affirmed, with
costs. (June 24, 1971)
Appeal Board Decision 165,431A
Referee's decision: The initial determinations of the
local office holding claimant ineligible to receive benefits effective August 3
through August 16, 1970, because it was a paid vacation period for which no
benefits are payable and charging claimant with an overpayment of $130 in
benefits ruled to be recoverable, are overruled.
Appealed by: Industrial Commissioner
Findings of fact: Claimant, a checker-foreman was
employed by a manufacturer of railroad equipment for more than six years until
July 31, 1970, on which date he was permanently laid off because of a reduction
in force. On that date he received payment for three weeks of vacation. On July
14, 1970, while claimant was still employed, the employer posted notices to all
employees that the plant was scheduled for a vacation shut-down for two weeks,
from August 3 through August 16, 1970, and that unless otherwise notified,
maintenance employees would be scheduled to work during the vacation shut-down.
Claimant filed an original
claim for benefits on August 6, 1970, effective August 3, 1970 and executed a
questionnaire in which he answered in the affirmative, the "Have you
received or are you entitled to receive vacation pay during your present period
of unemployment?"
Thereafter, when he
certified for benefits for the statutory weeks ending August 9, and August 16,
1970 claimant marked his insurance booklet with "N" for each day in those
weeks. The instructions in the insurance booklet require that claimant mark
"P" for those days for which he "received or will receive
vacation pay". Claimant was paid $130 in benefits for the statutory weeks
ending August 9 and August 16, 1970. The local office applied $75 in benefits
due claimant for the statutory week ending November 8, 1970 as an offset
against the overpayment.
Opinion: Since claimant received his
vacation pay immediately prior to the vacation period, which had been duly
designated by the employer in advance, he was ineligible to receive benefits
for such vacation period (Labor Law. Section 591.3. See Appeal Board 160,995).
The case at bar is
distinguishable from Matter of Faccio, recently decided by the Court (37
AD 2d 633, aff'g. Appeal Board, l18,289A). In that case the Board rejected the
Industrial Commissioner's argument and ruled that the provisions of Section
591. 3 of the Law requiring written advance designation of a vacation period
were not met when the employer gave written notice to claimant on the last day
of his employment that he had earned $800 of vacation credit and that his
vacation pay was to start at the date of the termination of his employment. The
Court ruled that the $800 was dismissal pay and that since it was not vacation
pay claimant was entitled to benefits. Therefore section 591.3 cannot be
applied to the facts herein.
In the case at bar the
employer complied with the requirements of the statute and duly designated, in
writing and in advance, the vacation period in issue. Since the employer
complied with the statutory conditions, claimant was not entitled to benefits
for the designated paid vacation period, from August 3 through August 16, 1970,
and the benefits which he received constitute an overpayment.
The issue herein is whether
or not the overpayment is recoverable. Section 597.4 of the Law provides that,
unless it is based upon a retroactive payment of remuneration, any benefits
already paid shall not be affected provided they were accepted in good faith,
and claimant did not make any false statement, and did not wilfully
conceal any pertinent fact in connection with his claim. In the light of these
statutory provisions, we have reconsidered our decision filed April 14, 1971
(Appeal Board, 163,445), and concluded that in marking his booklet with an
"N" for each of the days in the statutory weeks in issue, claimant
made statements which were false, in fact. He was required to mark
"P" for all days for which he had received or was to receive vacation
pay. It is immaterial that he did not intend to deceive the local office or
that he had previously informed the local office that he had received vacation
pay. Claimant is obliged to mark his insurance booklet accurately, and since
the information which he supplied for the weeks in issue was, in fact, false,
the benefits that claimant received constitute a recoverable overpayment, as
provided in the Law (Appeal Board, 111,592).
Our attention has been
called to Appeal Board 112,250, decided June 2, 1964. Upon re-reading the facts
and the opinion in that case, we conclude that the Board erred in the final
paragraph thereof wherein it ruled inadvertently that the overpayment received
by that claimant was recoverable and stated that there may be no waiver of
recoverability of an overpayment where such overpayment results from the
retroactive payment of remuneration. Since that claimant had received his
vacation pay in advance of the designated vacation period, there could
be no retroactive payment of his vacation pay (Appeal Board, 126,049).
Accordingly, we conclude that there was no basis in Appeal Board, 112, 250 for
the conclusion that there was a retroactive payment of benefits so as to make
the overpayment of benefits to that claimant recoverable on that ground.
The initial determination
of overpayment indicates that the local office subsequently offset $75 in
benefits due claimant for the statutory week ending November 1970, against the
overpayment of $130. It should be noted that claimant had been credited with
the statutory week ending August 9, 1970 as the waiting week required by the
Law.
Decision: The application by the Industrial
Commissioner to reopen and reconsider the decision of the Board filed
April 14, 1971 (Appeal Board, 163,445), is granted and the said decision is
hereby rescinded.
The initial determinations
of the local office are sustained.
The decision of the referee
is reversed. (January 14, 1972)
DISSENTING OPINION:
The issue involved herein
has been the subject of review by the Board and by the Court. Specifically, it
resolves itself into the basic question: Is there a paid vacation period during
which a claimant is ineligible to receive benefits, after the claimant's
employment has been terminated permanently by the employer?
In cases arising subsequent
to the effective date of Chapter 794, Laws of 1963 amending Section 591.3,
Labor Law (April 26,1963), the Board, despite interpretations to the contrary
sought by the Industrial Commissioner and numerous employers, consistently held
to the rule that, where all the statutory prerequisites of designation and
payment had been complied with, the period originally designated was considered
to be a "paid vacation period", during which a claimant was
ineligible to receive benefits, even though the employment had terminated
sometime prior thereto and the claimant was receiving benefits prior to the
designated vacation period. The Board held that only the exact period which had
been designated at a time when the claimant was still in employment was
to be the period of ineligibility (Appeal Board 107,486).
With the passage of time,
however, it became apparent that an incongruous situation had developed. In
effect, claimants were being deemed to lack total unemployment and to be in the
employment of their former employers at times when they actually were permanently
unemployed and were seeking new employment. Furthermore, the periods of such
resulting ineligibility would fall within periods wherein claimants were in
receipt of benefits. They would receive benefits up to the designated
"vacation" period, would then be ineligible on that basis for the
designated period and thereafter would resume the receipt of benefits.
An example of the
incongruity mentioned above is given by referral to the factual situations
found in Appeal Board, 140,717 and Matter of Roman, 25 AD 2d 580, aff'g
Appeal Board, 114,593, adhered to on reconsideration in Appeal Board, 120,
546A, cited therein. In Appeal Board, 140,717, the claimant required an
additional week of covered employment to permit her to file a valid original
claim. During substantial periods of layoff in her base period, she had
received holiday pay in two weeks thereof and had reported such to the local
office, which then credited her with only three effective days of compensible
unemployment in each of the respective weeks. The local office had denied
claimant credit for these weeks as weeks of employment when she sought to file
a new original claim and the referee had sustained the initial determination,
basing his conclusion on Matter of Roman, supra. The Board reversed the
decision of the referee, pointing out:
"--,
there is a distinguishable feature between that case and the instant case. In Matter
of Roman the employer-employee relationship had terminated while here
claimant was on a temporary layoff in each of the two weeks in question and the
employer-employee relationship continued."
The significant difference
thus commented on is set forth in the Board's original decision in Matter of
Roman, supra, (Appeal Board 114, 593, adhered to in Appeal Board 120,546A)
as follows:
"Claimant's
employment terminated long prior to the week here in issue and claimant did not
work in any employment during that week. Nevertheless, in pursuance of the
provisions or the collective bargaining agreement which was in effect during
the period of claimant's employment, claimant was entitled to and did receive a
payment from the employer representing holiday pay for Christmas Day which fell
in the week ending December 30, 1962.
Opinion: We do not agree with the referee's
conclusion that since claimant was not an applicant for unemployment insurance
benefits in the week during which the paid holiday occurred, he was entitled to
be credited with that week as a "week of employment" on the authority
or the Industrial Commissioner's Regulation II g. Appeal Board 165,431A
"Week or
employment" is clearly defined in Section 524 of the Law which provides
that the term "means a week in which a claimant did some work in
employment***" underscoring supplied. The regulation which implements
the foregoing section is inapplicable under the facts here involved. Such
regulation provides for a credit or a week of employment "even though no
actual work is performed" only in instances where the worker is "on
paid vacation or other paid leave of absence". He did no work during the
week at issue because he had become unemployed prior thereto and continued to
be unemployed thereafter. Accordingly, the plain language of the statute
compels the conclusion that the week involved was not "a week of
employment."
The Court affirmed the
Board in a memorandum decision reciting the same facts and coming to the same
conclusion.
The first occasion when the
Board reconsidered this problem was in Appeal Board, 153,497, (April 1, 1970).
The claimant's employment had terminated on March 14, 1969. Her vacation had
already been scheduled for the weeks ending June 1, and July 6, 1969, and at
the time or discharge, she was paid what would have been her wages for those
two weeks. The referee sustained the initial determination of ineligibility for
those weeks because they were paid vacation periods. On appeal by the claimant
and after a further hearing before it, the Board reasoned that it did not
believe that the Legislature had contemplated such a situation when it enacted
Chapter 794 or the Laws of 1963. Accordingly, the Board held that the two weeks
in issue were not paid vacation periods or ineligibility because the
employer-employee relationship had been terminated in advance thereof. (In the
subsequent case or Appeal Board 160,995, I noted in my dissenting opinion that
the Board has remained of the same view despite two subsequent applications by the
Industrial Commissioner requesting to reconsider the said decision (Appeal
Board, l57,383A and 158,349A)).
In Appeal Board, 160,995
(February 17, 1971) involving an identical factual situation as in Appeal
Board, 153,497, the majority of the Board reverted to its prior rulings and
again held the claimant to be ineligible for such a period.
They indicated that they
considered the decision in Appeal Board, 153,497, as not binding. There the
matter rested.
As of that moment, there
was an obvious inconsistency between the statute and the Board's application
thereof. Section 591.3(a), as amended by Chapter 794, Laws of 1963, reads:
"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."
(emphasis supplied).
Section 522 reads:
"Total
Unemployment" means the total lack of any employment on any day."
Section 524, referred to
Appeal Board, 114,593 (Mater of Roman, supra) reads:
"Week
of employment" means a week in which a claimant did some work in
employment"
Taking these three sections
and applying to them the interpretations that have been made in accordance with
the foregoing discussion, it is seen that under Section 591.3(a), a week in
which a claimant receives "holiday" or "vacation" pay is
not of "total unemployment", but neither is it a "week of
employment" under Section 524. A claimant will get credit for such a week
as a week of "covered" employment, if it occurred during a temporary
layoff, by the rule of Appeal Board 140,717. It will not be credited as a week
of "covered" employment if it occurred after the termination of the
employer-employee relationship, under the rule of Matter of Roman,
supra. However, it would still be a period of ineligibility to receive benefits
pursuant to Section 591.3(a) and Appeal Board 160,995. Thus the sections of the
statute and the Board and Court rulings thereon were inconsistent in their
treatment of the same factual situation. The issue called for a reasonable and
final resolution.
On June 24, 1971, the
Appellate Division of the Supreme Court, Third Department rendered a unanimous
decision in Matter of Faccio, 37 AD 2d 633, aff'g Appeal Board 1l8,289A.
The primary issue in that case, when considered by the Board, was whether the
employer had sufficiently complied with the preliminary requirement of Section
591.3 in respect to the designation of the vacation period, in order to
constitute the four weeks following the termination of claimant's employment a
"paid vacation period". Both the employer and the Industrial
Commissioner appealed from the Board's decision that there had been no such
compliance and therefore the claimant was eligible to receive benefits during
the period in issue.
In his brief in Matter
of Faccio, supra, the Industrial Commissioner referred to the purpose of
the enactment of Chapter 794, Laws of 1963, and quoted the following from the
Court's prior decision in Matter of Miranda, 13 AD 2d 571, aff'g Appeal
Board, 72,228:
"---the
underlying policy of the "vacation period" concept-- is designed to
preclude an employee who is receiving a true rest from work and being paid
directly by the employer to receive a windfall in unemployment benefits."
The Industrial Commissioner
further argued that: "The fact that claimant was terminated is immaterial
since the statute clearly states in paragraph (c) that it applies irrespective
of whether the employment has or has not been terminated." Thus, the
Industrial Commissioner, in addition to the basic question of proper compliance
with the preliminary requirement of announcement, presented to the Court for
its consideration the further issue of the materiality of the termination of
the claimant's employment prior to the commencement of the vacation period.
The Court noted in its
opinion that: "No designation was made by the employer for a vacation
period under its union agreement." It then recited the fact of a written
notice handed to the claimant on his last day of employment advising him of the
number of days of vacation credit he had accrued and the amount of the payment
that was being made to him for such purpose. However, at that point, the Court
ceased any further consideration of the issue of designation of the vacation
period and instead turned directly to the issue raised by the Commissioner of
the termination of the claimant's employment. The Court said:
"The
question narrows to whether the pay received by claimant as accumulated
vacation credits was vacation pay or severance pay. It has been firmly
established that a dismissed employee, while unemployed and attempting to find
work may receive severance pay and yet be entitled to unemployment insurance
benefits. (Cf. Matter of Walker Readers Digest-Catherwood), 29 AD 2d
256,257. Not so, however, with vacation pay designated for vacation purposes.
(Cf. Matter of Friedman (Catherwood), 27 AD 2d 473). The requirement of
subdivision 3, paragraph (b) of Section 591 of the Labor Law in regard to the
employer designating time for vacation purposes does not permit a mislabeling
or arbitrary designation as vacation pay. This was no vacation for claimant in
the true sense of the word, no respite from work with rest and relaxation and
an expectation of return at the end of the period. We find that the $300 paid
to claimant was clearly a dismissal payment, the right to which was earned by
him during a prior service. (Matter of Walker (Readers Digest-Catherwood),
Supra)."
It is clear from the
Court's repeated reference to Matter of Walker, supra, and Matter of
Friedman, supra, that it was impressed by the Commissioner's reference in
his brief to the "underlying policy of the vacation period concept,"
it had set forth in Matter of Miranda, supra, based on the language of
Section 591.3(b), which was left unchanged by Chapter 794, Laws of 1963. Thus,
by inference, it pointed to the specific difference in these two cases (Walker,
and Friedman), namely, in the Walker case, the claimants were al
terminated for their employment whereas, in Friedman, they were on a
temporary layoff and returned to work at the close of the designated
"vacation" period. Thus the Court has indicated its conclusion that,
despite the language of the statute, as amended in 1963, a payment for accrued
vacation credits made to an employee at the time of his final termination of
employment is not a vacation payment, but is rather severance or dismissal pay,
even though the period subsequent to the discharge was already designated as a
vacation period. Thus, since there is no "vacation pay", even though
there may be a "vacation period" that was properly designated, no
ineligibility to receive benefits arises therefrom.
The Court, by its decision
in Matter of Faccio, supra, sought to resolve the glaring
inconsistencies that had thus developed. It applied the rule of statutory
construction and interpretation set forth in McKinney's Statutes, Section 98
(a):
"All
parts of a statute must be harmonized with each other as well as with the
general intent of the whole statute, and effect and meaning must, if possible,
be given to the entire statute and every part and word thereof."
(Commentary)
A statute must receive such
reasonable construction as will, if possible, render all its parts consistent
with its scope and purpose. Thus, generally a particular provision of an act is
not to receive a special meaning at variance with the general purpose
and spirit of the act. Inconsistency in the same statute is thought to be
contrary to the intent of the lawmakers, and hence it is to be
avoided."'(emphasis supplied).
The Court did so by
answering the question at the beginning of this dissenting opinion, in the
negative, by reasoning that the payment made to a terminated employee is not
vacation or holiday pay, but is dismissal or severance pay.
The majority argues that Matter
of Faccio, supra, does not apply herein because The Court ruled that the
provisions of Section 591.3 did not apply to the facts therein because the
payment was not vacation pay. This argument is fallacious, because before the
Court could arrive at such a conclusion, it had to consider the provisions of
this statute in toto to determine the nature of the payment that was made to
claimant Matter of Faccio, supra, does apply herein because, here too,
the nature of the payment made to the claimant is such that it renders the
ineligibility provisions of Section 591.3 inapplicable. The Court's ruling
therein is controlling in this case.
I vote to overrule the
initial determination of the local office and to affirm the decision of the
referee.
COMMENTS
- This rule reflects the Appellate Division
decision in Matter of Faccio as interpreted by A.B. l65,431A. The
Appellate Division decision was appealed to the Court of Appeals. The
Court of Appeals affirmed the Appellate Division decision.
- The rule should be applied only when there has
been a permanent separation from employment. It should not be applied in
cases of layoff, regardless of duration, if there is an expectation of
recall.
- The principle of this decision does not
apply to pay for holidays since those days are established prior to the
discharge.
Index No. 765.12
795.6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
May 25, 1972
INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Other Causes
Willingness to and efforts to find work
Appeal Board Decision 170,282
ATTIRE PRECLUDING REFERRAL
Insistence on attire that
is generally not acceptable to employers in the area, making referral by the
placement office virtually impossible, and his independent job efforts
unrealistic, renders claimant unavailable. (Claimant, seeking clerical or sales
work, reported repeatedly to the employment service office wearing dungarees, a
jersey and sneakers, despite advice of that office that employers would not
interview applicants so dressed).
Referee Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective June
28,1971 because he was not available for employment, is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a mail clerk, last
worked for a state agency for eight months until April 7, 1971 when he was laid
off due to a reduction in force. He filed an original claim for benefits in
Troy effective April 5, 1971 and transferred his claim to the local office in
Albany when he moved to that city on or about June 1, 1971. Claimant received
11 benefit payments through June 27, 1971.
Claimant reported to the
employment service in Albany on June 25, 1971, seeking referrals to clerical or
to the sales work. He was wearing faded dungarees and a jersey and faded
sneakers. He was requested to return on June 28,1971 dressed more
appropriately. He reported on June 28 again wearing the same attire. He was
advised by the manager of the placement office that no referrals could be made
to employers in that area because the employers serviced by that office would
not interview applicants for office or sales work who were dressed in dungarees
or sneakers. When claimant refused to change the style of his dress on
subsequent visits the employment service notified the local office thereof.
Claimant did not report to the local office after July 15, 1971 because it had
been ruled that he was unavailable for employment.
During the period from June
28 through July 15,1971 claimant applied for sales work to several music
stores, to a retail store selling electronic equipment, to a book store, to
several large department stores which have record and music departments, and to
several mod boutique stores. He did not apply to the personnel offices of the
department stores, but spoke only with employees at the record and music
counters.
Claimant has had sporadic
employment since he left college. He is 26 years of age.
Opinion: We do not agree with the referee
that claimant made reasonably diligent independent efforts to find employment
because he contacted establishments where employers would raise no objection to
his appearance. Claimant was not requested to change his hairstyle or shave his
beard. He was merely requested to modify his style of dress to one which would
be acceptable to employers in the area. No one can quarrel with claimant’s
right to dress, as he deems fit. However, his insistence on attire that was not
acceptable to employers serviced by the Albany placement office made referrals
by that office virtually impossible and constituted an unreasonable restriction
on claimant’s employability. Moreover, his job search during the period in
issue was neither diligent nor realistic. There is no convincing evidence that
other employers in the area would have accepted claimant for sales or office
work, while he insisted on dressing as he did. Accordingly, we conclude that
claimant was not available for employment during the period here in issue.
Decision: The initial determination of the
local office is sustained.
The decision of the referee
is reversed. (April 6,1972)
Index 1320E-2
1620-4(b)
1710-8(b)
1725-6(b)
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February 21, 1973
INTERPRETATION SERVICE - BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
In the establishment, question of
VOLUNTARY LEAVING
Other personal reasons
Safety
Union relations
COURT OF APPEALS DECISION
Matter of William Buckley, 31 NY 2nd 950
REFUSAL TO CROSS PICKET LINE
- Refusal by claimant to cross a picket line maintained
at his job site by striking employees of another employer operating at the
same location, does not subject him to suspension for industrial
controversy when no industrial controversy exists "in the
establishment" where he is employed.
- Such refusal is with good cause, not only when there is
fear for personal safety, but also if claimant's union standing would be
jeopardized.
REFEREE AND BOARD DECISIONS
Referee's findings of
fact: By initial
determinations claimants were ruled eligible to receive benefits with no
disqualifying conditions. The employer objected, contending that claimants were
disqualified from benefits effective May 25, through June 25, 1970, because
each lost his employment as the result of an industrial controversy in the
establishment in which he was employed.
The parties stipulated that
the decision herein would apply with full force and effect to all of the claimants
similarly situated who had requested hearings but who were not noticed to
appear in this proceeding.
Claimants were either
boilermakers, ironworkers, operating engineers or truck drivers who worked for
a division of a steel manufacturing corporation. This division concerned itself
with constructing and manufacturing the plant facilities within a particular
steel manufacturing establishment.
All of the claimants were
union employees and were working under a bargaining agreement which was in
effect. None had grievances which are here pertinent.
Concurrently four plumbing
contractors were engaged in various jobs within the steel manufacturing plant.
Because these plumbing contractors had not reached working agreements with a
certain construction laborers' union local, that union caused pickets to be
placed at the entrances of the steel plant, which pickets carried signs
indicating a grievance against the said plumbing contractors.
Pickets were placed during
the morning of May 25, 1970, a Monday.
Those of the claimants who
had not yet entered the gates did not do so because of the pickets. Those who
had entered the plant before the pickets were placed left as soon as they
learned of the placement of the pickets.
None of the claimants
reported until June 26, the day following the removal of the pickets, with the
exception of some of the claimants who may have been called in for emergency
work.
Each of the claimants
reported on a daily basis but did not work because they were unwilling to cross
the picket line. This reluctance to cross such lines was the result of some
apprehension as to their safety and also the fear that their own union might
take disciplinary action against them for having failed to honor such picket
line.
Referee's opinion: Since claimants' employer employed
no laborers from the striking union it cannot be said that claimants'
unemployment resulted from an industrial controversy in the establishment in
which they worked. The Appeal Board has consistently upheld the right of union
workers to refuse to cross picket lines established by a striking union without
fear of disqualification from benefits. (Matter of Wittlaufer, 277 AD
305, Affirming A.B. 18,177-48). It is immaterial that the nature of the
picketing left little reasonable ground for fear of personal injury and that
the type of picketing did not physically bar access to the plant.
Referee's decision: The employer's objections are
overruled. The initial determinations are sustained.
Appealed by: Employer.
Appeal Board opinion: 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 Board notes that a similar situation was considered by it
previously and was decided with the same result. Appeal Board, 155,712, et.
seq.
Appeal Board decision: The decision of the referee is
affirmed.
Appealed by: Employer.
Appellate Division
decision: The
decision of the Appeal Board is reversed. (Opinion not reproduced)
Appealed by: Claimant and Industrial
Commissioner.
COURT OF APPEALS DECISION
MEMORAMDUM:
There was substantial
evidence supportive of the board's findings of the non-striking employees'
fears of personal injury and of disciplinary action being taken against them by
their union (National Labor Relations Bd. v. Allis-Chalmers Mfg. Co.,
388 U.S. 175) should they cross the picket lines. That apprehension of bodily
injury may constitute "good cause" (Labor Law, §593, subd. 1, par. a)
is scarcely debatable, and that claimants were not required to jeopardize their
union standing is also clear (see Labor Law § 593, subd. 2, par. [a]).
The order appealed from
should be reversed and the decision of the Unemployment Insurance Appeal Board
reinstated, with costs. (December 29, 1972).
Index 1715-4
2050A-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 8, 1972
INTERPRETATION SERVICE -BENEFIT CLAIMS
VOLUNTARY LEAVING
Attendance at school or training
SECTION 599
Voluntary quit to attend training
Appeal Board Decision 173,143F
"STOP-GAP" EMPLOYMENT
When a claimant, after
applying to a training facility for admission to vocational training, obtains
employment intending to work until the training starts, good cause exists for
leaving that employment to commence the course, provided the training meets the
conditions for approval set forth in Section 599 of the Law.
Referee decision: The initial determinations of the
local office disqualifying claimant from receiving benefits effective January
8, 1972 on the ground that he voluntarily left his employment without good
cause, holding claimant ineligible to receive benefits effective January 10.
1972 on the ground that he was not available for employment and disapproving
claimant's request for vocational training allowances under Section 599 of the
Unemployment Insurance Law, are sustained.
Appealed by: Claimant
Findings of fact: Claimant entered the military
service in September 1968. Prior to that time he had worked in unskilled
employment in Syracuse for several months. While in the service claimant was trained
as a helicopter repairman and served in such capacity for one year in Vietnam.
In August 1971, prior to his discharge from the service claimant applied for
admission in a school of aeronautics. He intended to take vocational training
in order to meet the requirements set by the Federal Aviation Administration.
He was accepted by the school to start January 10, 1972.
After his discharge from
the military service claimant applied for unemployment insurance in October
1971 and received one benefit payment at the rate of $75. He then returned to
work as an unskilled warehouse aid with his former employer until it was time
for him to start his course of vocational training. He resigned from his job
effective January 7, 1972 in order to start his course of training on January
10.
Opinion: Claimant's application for training
allowances has been turned down on the ground that claimant had an outstanding
(dis)qualification and that employment opportunities for which he was
reasonably fitted by training and experience were not substantially impaired.
We have previously held on several occasions that one who accepts stop-gap
employment while waiting for an approvable course of training to begin may
leave such employment in order to attend the course without being subject to
disqualification. The fact that the stop-gap employer in this case was a former
employer of claimant does not change the nature of this employment. This was
clearly stop-gap employment undertaken while claimant was awaiting the
commencement of a course of vocational training for which he had previously
applied and been accepted. As for the lack of impairment of employment
opportunities we perceive no basis for this determination when the employment
service training form clearly states "Applicant has no civilian
skills." Accordingly we find that claimant was not subject to
disqualification and was eligible for training allowances. In view of his
eligibility under Section 599 his availability is academic.
Decision: The initial determinations of the local
office are overruled. The decision of the referee is reversed. (May 2), 1972)
COMMENNTS
- The rule of release A-750-1743 (Index 1620-5 and
2510-1) states that leaving employment to attend vocational training is
without good cause, in the absence of special circumstances. The
"Comments" of that release state that an exception might apply,
for example, to "stop-gap" employment secured during the summer
recess from vocational training which previously had been approved for the
claimant under Section 599. The present decision indicates that where
stop-gap employment is concerned, it is immaterial that approval of the
training is not obtained prior to the quit; what does matter is whether
the training is otherwise approvable.
- It thus becomes important in cases of voluntary leaving
to attend training to ascertain and compare the date claimant began the
employment with the date he first applied for the training. If this
comparison leads to the conclusion that the employment was stop-gap, it
must then be determined whether the conditions of Section 599 are met. In
making such determination, it is immaterial that the employment was
full-time, steady and voluntarily terminated.
Index 1620-2
1640C-5
1675-3
NEW YORK STATE DEPARRMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 12, 1973
INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Other personal reasons
Desire for different work
Military service
Appeal Board Decisions 174,361 et.al.
CONSCIENTIOUS OBJECTOR: ALTERNATIVE
SERVICE
A conscientious objector
who accepts alternative civilian service assigned by his draft board under the
Selective Service Law is not subject to a voluntary leaving disqualification if
he leaves such assignment at the termination of his period of obligation.
Referees' decisions:
- The initial determination of the local office
holding claimant, J.F., eligible to receive benefits effective April 24,
1972 without disqualifying conditions, is overruled.
Appealed by: Industrial Commissioner and claimant. - The initial determination of the local office
holding claimant, H.C. eligible to receive benefits effective December 13,
1971 without disqualifying conditions, is sustained.
Appealed by: Employer.
Findings of fact: Claimants are both residents of
Buffalo, who claimed conscientious objector status under the Selective Service
Law. Claimant, J.F., had received his Bachelor of Arts Degree from the
University of Buffalo in January 1970. Claimant, H.C., was approximately 19
years of age at the time he claimed conscientious objector status and had no
extensive work history. Conscientious objector status was approved for both
claimants and in fulfillment of their obligation under the Selective Service
Law they were required to perform alternate civilian service approved by the
authorities. Pursuant to the Selective Service Regulation they were required to
perform this service at a location at least 50 miles from their homes in
Buffalo.
Under the procedure set
forth above, claimants went to work as aides for the employer herein, a
hospital located in Rochester, New York. The employer was aware that claimants
were conscientious objectors, and might leave at the end their required term of
service. Claimant, H.C., had been given the option by his draft board of
service at any of three institutions, the closest of which to his home was the
employer herein. The record does not indicate how claimant, J.F., came to be
assigned to the employer hospital. At the conclusion of their respective
required terms of service and on their release by the Selective Service
authorities, both claimants returned to their homes in Buffalo. Claimant, H.C's
mother was severely ill and he wished to be with her. Claimant, J.F., wished to
continue his education at the University of Buffalo.
After their return to their
homes in Buffalo, both claimants sought work and actually obtained some work
through their own efforts. During the periods in issue they were found to he available
by the local office.
Opinion: Ordinarily, one who accepts
employment with full knowledge of the terms and conditions, is not justified in
leaving such employment thereafter, absent a change of circumstances, even if
he would have had good cause to refuse such employment in the first instance. Matter
of Sellers, 13 AD 2d, 204. However, we do not feel that the reasoning in Matter
of Sellers is applicable in this case. Under the facts herein, we do not
feel these claimants freely and voluntarily accepted the terms and conditions
of their employment. They were required to serve in this capacity as an
obligation under law. This was a recognized alternative obligation under the
Selective Service Law and their leaving to return to their homes when such period
of obligation terminated, was with good cause.
The evidence also discloses
that both claimants were available, at least to the date of their respective
hearings. They sought work and actually obtained work. They were interviewed
periodically by the local office and satisfied the local office of their
availability. No evidence was presented by the objecting employer which would
alter this conclusion.
We are not unmindful of the
employer's contention that its account is being charged when it had continuing
work available for the claimants and when it had cooperated with the Selective
Service Authorities in utilizing the services of conscientious objectors. We
feel that such contention must be addressed to the legislature who may wish to
consider whether such service should be excluded from the definition of
employment under the law. In the absence of such legislative action, we find
that the employer's objections herein cannot be sustained.
Decision: The initial determinations of the
local office holding claimants eligible without disqualifying conditions
are sustained.
The decision of the referee
in the case of claimant, J.F., is reversed.
The decision or the referee
in the case of claimant. H.C., is affirmed. (December 13, 1972).
Dissenting Opinion
I must dissent from the
conclusions reached by my two associates herein. I do not find any merit in the
reasoning they have advanced to justify these claimants in voluntarily leaving
their employment with the hospital.
The purpose for the
enactment of Article 18, Labor Law, (The Unemployment Insurance law), is
clearly set forth in Section 501 thereof. It is stated therein that,
"Economic insecurity due to unemployment is a serious
menace to the health, welfare and morale of the people of this state. Involuntary
unemployment is therefore a subject of general interest and concern which
requires appropriate action by the legislature to prevent its spread and
to lighten its burden which now so often falls with crushing force upon the
unemployed worker and his family, --- the legislature therefore declares that
in its considered judgment the public good and the well-being of the wage
earners of this state require the enactment of this measure for the compulsory
setting aside of financial reserves for the benefit of persons unemployed
through no fault of their own." (emphasis supplied)
The basic reason for the
enactment of Article 18 is gleaned from the above and specifically from the
emphasized portions thereof. It has long been recognized that the right to
receive the benefits provided for therein, is not founded on need alone,
nor on the reason why the particular employment was undertaken in the first
instance. Rather, such right is based solely on the circumstances under which
the claimant became unemployed and whether, as finally stated above, such
circumstances establish that the claimant became unemployed through no fault of
his own. There have been prior cases where it has been determined that,
although a claimant left employment of his own choice, there was good cause to
do so, and thus, the claimant was unemployed through no fault of his own. Matter
of Sweeney, 267 App. Div. 846, rev'g. Appeal Board. 9240; Matter of Shaw,
5 NY 2d 1014, aff'g. 6 AD 2d 354, aff'g. Appeal Board, 58768; Matter of
Lauria, 18 AD 2d 848 aff'g. Appeal Board, 79952A; Matter of Russo,
18 AD 2d 846 aff'g. Appeal Board 79951A. However, there have been other cases
where the opposite was found to be so and these claimants were not allowed to
receive benefits because their employment terminated through their own fault
for various reasons. Matter of Pillersdorf, 278 App. Div. 59 rev'g.
Appeal Board 22361; Matter of Reiger, 17 AD 2d 269 rev'g. appeal Board
UCFE-552. Matter of Shatzer, 19 AD 2d 945, aff'g. appeal Board 96948, Matter
of Leofanti, 23 AD 2d 936 aff'g Appeal Board 106,525 Matter of Perry, 24 AD
2d 921 aff'g. Appeal Board 104,840.
I find nothing in these
cases that would justify these claimants in leaving their employment at the
hospital. True, they both accepted the work as a means of fulfilling their
obligation to perform service for their country under the Selective Service
Law. However, as pointed out above, the Unemployment Insurance Law does not
take into account the reason for the acceptance of any particular employment as
being justification for its subsequent relinquishment.
Certainly, considering the
desire of claimant J.F. to continue his education, the Board has consistently
held that this is not good cause to leave one's employment. Appeal Board 81628,
104,200; 122,171, 165,640. And in respect to claimant H.C., it is significant
that there was actually no compelling family reason for him to leave his
employment. His wife was living with him while he worked at the hospital and
actually was also employed in the same institution. His parents had no real
need for his presence in their home for any reason. It is of great further
significance that, in respect to both claimants, the hospital was desirous of
continuing their employment.
There appears to have been
no compelling reason for either claimant to have left his employment. Each
displayed merely a basic desire to return to his hometown for reasons which
have never been held to be good cause. In our society, people move about
constantly to various parts of the country. This desire, in and of itself, does
not carry with it the right to receive benefits, in the absence of other
justifying circumstances. Certainly the circumstances advanced by my fellow
members as such justification, namely, the termination of their period of
military service obligation, are not such. The Unemployment Insurance Law was
never intended as a medium for paying benefits under such conditions, except
where specifically so provided, as in the case of ex-servicemen who receive
such benefits pursuant to Chapter 85 Title 5, of the U.S. Code. I believe that,
had Congress or our Legislature intended that persons who met their obligations
under the Selective Service Law, as did the claimants, should be treated the
same as those who actually had performed military service, it would have been
so provided in the pertinent statutes. In the absence thereof, I see no basis
for the Board to so interpret existing law as to accomplish the same result.
I vote to sustain the
employer's objections against the receipt of benefits by both these claimants
on the ground that they voluntarily left their employment without good cause.
COMMENT
The employer appealed this
decision to the Court.
In the Matter of
Fleishman & Chlebowski Jr., [Levine], 43 AD 2nd 624, the court affirmed
this Appeal Board Decision.
Index 1320C-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 19, 1973
Interpretation Service - Benefit Claims
INDUSTRIAL CONTROVERSY
Unemployment due to
APPELLATE DIVISION DECISION
Matter of Joseph J. Hunger, Sr.
RECALL TO WORK DURING STRIKE
A claimant on seasonal
layoff with uncertain recall date (such date depending on weather conditions)
is not subject to industrial controversy suspension when he refuses to return
to work because of a strike in the establishment.
DECISION
Appeal from a decision of
the Unemployment Insurance Appeal Board, filed July 1, 1971, which determined
that claimant was entitled to unemployment insurance benefits.
The B.S. Co. Inc., closely
connected with the construction industry, operates on a seasonal basis,
generally from April until November. The collective bargaining agreement
provided for, among other things, protection of seniority rights and other
benefits for employees who return each year from seasonal layoffs. Claimant, an
employee of appellant, became inactive on December 19, 1969 and thereafter was
eligible for and received unemployment insurance benefits. On April 1, 1970 a
strike took place at employer's premises and on April 27, 1970 claimant was
called to return to work, but refused to cross the picket line at employer's
plant. The question presented is whether or not claimant lost his employment as
a result of an industrial controversy, and therefore was subject to a
suspension of benefits (Labor Law, §592, subd. [l]).
The board has determined as
a question of fact that the employment relationship between claimant and his
employer terminated on December 19, 1969, the layoff date. Therefore, claimant
did not lose his employment as a result of an industrial controversy nor did he
leave employment without just cause (Labor Law, §592, subd. [l] §593, subd.
[2], par. [b]; Matter of Burger [Corsi], 277 App. Div. 234, affd.
303 N.Y. 654). The factual determination of the board is supported by
substantial evidence and it cannot be disturbed on appeal (Labor law, §623).
Decision affirmed, without
costs. (October 19, 1972).
COMMENTS
- The instant rule should not be applied to temporary
layoffs of expected short duration, when there is a definite or
approximate date to return.
Index 910.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 4, 1973
INTERPRETATION SERVICE - BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Base year earnings and employment
Appeal Board Decision 179,158
WEEK OF EMPLOYMENT: PAID VACATION
PERIOD
A statutory week which
includes one or more days of paid vacation for which benefits would not be
payable, when the employment relationship continues, is a "week of
employment" for determining entitlement.
Referee decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective May 29,
1972, because he did not have at least twenty weeks of covered employment in
his base period, is sustained.
Findings of fact: Claimant, a taxi-cab driver, filed
an original claim for benefits effective May 29, 1972, thereby establishing a
base period from May 31, 1971 through May 28, 1972. He was credited with
fourteen weeks covered employment and with earnings of $1,288.23 in his base
period, which included $126.52 for a paid vacation in August 1971. In his
pre-base period, he had 47 weeks of covered employment and earnings of
$4,347.03.
Claimant last worked on
August 8, 1971, when he went on vacation for a three week period. Prior to his
leaving on vacation, claimant and his employer had agreed that claimant was to
have a three week vacation beginning August 9, 1971 and ending August 30, 1971.
The employer's vacation schedule listed this vacation period for claimant.
Claimant did not return to his employment after his vacation because he had to
stay at home to attend his ailing wife. He returned to work in April 1972 and
worked four weeks through April 30, 1972.
Claimant had covered
employment and earnings in his base period as follows:
|
EMPLOYER |
WEEKS OF EMPLOYMENT |
REMUNERATION |
|
C. Operating Co. |
17 |
$1,288.23 |
WEEKS WITH EARNINGS OF
LESS THAN $30 = 2
Opinion: Claimant was in continuous
employment through his vacation period. Since this was a designated vacation
period within the meaning of the law, claimant is entitled to be credited with
these three weeks of employment in his base period. Claimant thus had a total
of seventeen weeks of covered employment in his base period and total earnings
of $1,288.23 therein. Since he had sufficient weeks of covered employment in
his pre-base period he is eligible to file a valid original claim under the
alternate condition as prescribed by Section 527.2 of the Law.
Decision: The initial determination of the
local office is overruled.
The claimant is eligible to
receive benefits, subject to his satisfying the other requirements of the Law.
He is to be credited with the weeks of employment and with the remuneration
therein as set forth hereinabove.
The decision of the referee
is reversed. (April 17, 1973)
COMMENTS
This decision confirms the
guideline in Paragraph C-5, Special Bulletin A-710-10 (revised 8/25/76),
"Benefit Claims During Vacation Periods and Holidays."
As indicated there the rule
would also apply to cases of layoff when the employer-employee relationship
continues. It also would apply to paid holidays under these conditions. In
addition, both the vacation pay and holiday pay would constitute
"remuneration" for entitlement purposes.
Index 1640 B-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 29, 1973
INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Experience and training
Appeal Board Decision 167,920A* et.al.
*Reopened and adhered to by
A.B. 182,815A et. al.
REASSIGNMENT IN LIEU OF LAYOFF
A claimant who was hired as
a laborer but advanced to higher-paying skilled jobs which he performed
satisfactorily for a substantial period immediately prior to layoff, with only
sporadic and infrequent work as a laborer during that time, is not reasonably
fitted by training and experience for a laborer job and is not subject to
disqualification for voluntary leaving when he chooses layoff rather than
accepting such unskilled work.
Referee decision: The initial determinations of the
respective local offices holding claimants eligible to receive benefits
effective various dates, without disqualifying conditions and overruling the
employer's objections that claimants should be disqualified from receiving
benefits, effective various dates, on the ground that without good cause they
refused employment for which they are reasonably fitted by training and
experience, are sustained.
Appealed by: Employer.
Findings of fact: Claimants are members of the
Steelworkers' Union and worked in the employer's plant. The employer's hiring
policy is to start new employees at the lowest entry-level job in one of the employer's
many departments. As the employees acquire seniority they fill jobs having
higher classification when vacancies occur in their departments. The collective
bargaining agreement between the employer and claimants' union, dated August 1,
1968, provided for seniority pools within the various departments of the plant
for the purposes of layoff and recall. It also provided that if there is a
reduction in the work force, those with the most seniority (two or more years
of continuous service) would "bump" those in the department with less
seniority; that in the event that there was no longer a sufficient number of
jobs in a department, those who are no longer required in that department are
sent to the employment office which lays off the employee unless there is work
available in other departments; that if work is available in other departments,
the employee is offered such work; that if the employee accepts a transfer to a
new department, he becomes the lowest person in that department in terms of
seniority; that the employee does not lose his seniority in his old department
and will be recalled to the original department when business improves.
Claimant, W.A., Jr., age
40, was originally hired on May 11, 1964 as a laborer, grade 2, and was
assigned to the Specialty Products Shop. Thereafter he advanced to higher
paying skilled jobs such as welder's helper, shear operator, spray painter,
press operator, hooker, roller helper and floorman. In the week ending
September 7, 1968, he worked two days as a laborer, grade 2. In the week ending
May 17, 1969 he worked five days as a laborer, grade 2. In the week ending
April 25,1970 he worked one hour as a laborer, grade 2. Claimant last worked on
August 7, 1970 in the Specialty Products Shop as a stacker, grade 4, at $3.055
per hour, plus incentive. He was laid off due to a reduction in the work force
in his department. Claimant filed an additional claim for benefits effective
August 10, 1970 and received benefits through January 10, 1971 and extended
benefits through March 21, 1971. On August 10, 1971 the employer offered
claimant a job as a laborer, grade 2, in the Structural Shipping yard, at
$2.885 per hour, without incentive. He refused the job because of the
difference in pay. On September 4, 1970 the local office issued an initial
determination holding claimant eligible for benefits. On September 29, 1970,
the employer protested the initial determination and requested a hearing. After
a hearing thereon, the referee sustained the initial determination by a decision
filed January 5, 1971 (Referee #71-296-70). This decision was affirmed by the
Appeal Board on April 15, 1971 (Appeal Board 163,615). After claimant filed for
extended benefits in January, 1971 he was interviewed on March 24, 1971.
Although the employer's personnel department; was then notified that the facts
were the same as those previously ruled upon, the local office issued another
initial determination of eligibility on March 24, 1971. The employer protested
this initial determination and requested a hearing thereon which was held and
resulted in the decision of the referee filed June 18, 1971 (Referee #13404-71)
which sustained the initial determination of the local office issued on March
24, 1971. This case was appealed by the employer in Appeal Board 166,906, which
is now before this Board.
Claimant, J.C., age 21, was
originally hired on July 3, 1968 as a laborer, grade 2, and was assigned to the
14" Mill. Thereafter he advanced to higher paying skilled jobs such as
catcher, hot saw gauger, scrapman, stock shear gauger and grinder. In 1969 he
was transferred to the Electrical Yard Department where he worked as an
electrical helper, grade 6; as millwright C and as a motor inspector, both
grades 12. He continued to work in that department in 1970 during which he
advanced to millwright A (grade 16) and motor inspector 8 and A (grades 14 and
16). Claimant worked as a laborer, grade 2, for one day in the week ending
September 28, 1968; for one day in the week ending October 5, 1968; and for two
days in the week ending December 14, 1968. He last worked on September 12, 1970
in the Electrical Yard Department, as an electrical helper, grade 6, at $3.225
per hour, without incentive. He was laid off due to a reduction in the work
force in his department. On September 15, 1970, the employer offered claimant a
job as a sweeper, grade 2, in the Electrical Machine Shop, at $2.885 per hour,
without incentive. He refused the job because of the difference in pay and
because it was a different shift. Claimant filed an original claim for benefits
effective September 14, 1970 and received one benefit payment through September
27, 1970.
Claimant, G.F.S., age 24,
was originally hired on September 27, 1967, as a laborer, grade 2, and was
assigned to the Blast Furnace. In January 1968, he was transferred to the
44" Mill where he worked as a laborer for the first two weeks of that
month. He was then transferred to he electrical section of the Billet
Preparation Department where he advanced to higher paying skilled jobs such as
electrical helper, electrical oiler and millwright C, grades 6 and 12
respectively. Claimant did not work as a laborer after January, 1968. He last
worked on April 3, 1970 in the Billet Preparation Department as an electrical
helper, grade 6, at $3.097 per hour, plus incentive. He was laid off due to a
reduction in the work force in his department. Claimant filed an additional
claim for benefits effective April 6, 1970. On April 23, 1970 the employer
offered claimant a job as a laborer, grade 3, in the Brickmason Department, at
$2.848 per hour, plus incentive. He refused the job because it was not
electrical work and because of the difference in pay.
Claimant, G. S., age 24,
was originally hired on June 30, 1964 as a laborer, grade 2, and was assigned
to the Structural Shipping Yard. Thereafter he advanced to higher paying
skilled jobs such as car blocker, craneman and truck loader (grades 6 and 8).
He worked as a laborer, grade 2, in this department on two days in the week
ending August 30, 1969, on one day in the week ending September 6, 1969 and on
one day in the week ending September 13, 1969. Claimant was then transferred to
the Structural Repair Shop as a handyman, grade 5. Thereafter he worked in that
shop as a painter, as a fitter helper, as a crane operator and as a punch and
cutter operator (grades 5,6 and 8). He last worked on August 14, 1970 in the
Structural repair shop as a handyman, grade 5, at $3.14 per hour, plus
incentive. He was laid off due to a reduction in the work force in his
department. On August 14 1970, the employer offered claimant a job in the Coke
Ovens as a laborer, grade 2, at $2.885 per hour, without incentive. He refused
the job because of the difference in pay and because it was a different
department. Claimant filed an additional claim for benefits effective August
17, 1970.
Claimant, J.J.K., age 34,
was originally hired on May 18, 1955 as a laborer, grade 2, and was assigned
to the Strip Mill. By 1968 he was working in the Car Repair Shop, as an oiler,
grade 4. During 1968, 1969 and 1970 he advanced to higher paying skilled jobs
in that department such as car repairman A (grade 11) and plate shear operator
(grade 8). In the week ending December 20, 1969, he worked for 6 hours as a
laborer, grade 2, in this department. Claimant last worked on August 14, 1970
in the Car Repair Shop as a car repairman A, grade 11, at $3.65 per hour, plus
incentive. He was laid off due to a reduction in the work force in his
department. On August 17, 1970, the employer offered claimant a job as a laborer,
grade 2, in the Sintering Plant, at $2.885 per hour, without incentive. He
refused the job because of the difference in pay. He filed an original claim
for benefits effective August 17, 1970.
Opinion: Our original decision was based on
the fact that claimants would have suffered substantial reductions of earnings
by accepting the jobs as laborers. However, in Matter of Bus, (37 AD 2d
98, rev'g Appeal Board 161,054) the Court ruled that a percentage reduction in
salary or wages cannot alone be controlling and that a refusal of employment as
a laborer in an entry-level job was without good cause where the sole basis
therefore was that the wages offered were substantially less than those which
claimant had earned in his last job as a skilled worker. Accordingly, it is
necessary to consider whether or not the claimants herein were reasonably
fitted by training and experience for the laborer jobs which were offered to
them.
The credible evidence
establishes that since the inception of their employment, claimants have worked
for the employer in various higher-paying skilled jobs and that during the two
years prior to his layoff, each claimant had worked only sporadically and
infrequently as a laborer. Accordingly, and in view of the provisions of the
collective bargaining agreement dealing with seniority, we conclude that
claimants were not reasonably fitted by training and experience for the laborer
and sweeper jobs offered to them and that they refused such employment with
good cause.
Decision: The initial determinations of the
local offices are sustained. The employer's objections are overruled.
The decision of the referee
filed January 5, 1971 is modified accordingly, and as so modified, is affirmed.
The decision of the referee
filed June 18, 1971, insofar as it pertains to claimant W. A. Jr. is modified
accordingly, and as so modified is affirmed. (February 2, 1973).
COMMENTS
- Matter of Bus, cited in this decision, is reported at Index
1290A-11 and 1640 B-15 (A-750-1741). It emphasized that in a
"bumping" case, the job offer must meet the statutory tests,
including those of suitability and prevailing wages.
- The instant decision, one of several issued by
the Appeal Board in the wake of Matter of Bus, is presented to show
the Board's reasoning in determining whether a "bumped" claimant
is reasonably fitted by training and experience for the job offered to him
in lieu of layoff. It notes that in the two years prior to his layoff each
claimant worked almost exclusively in higher-skilled jobs. However, as in
other areas of claims adjudication, there does not appear to be any simple
formula that can be applied to resolve these cases. Good judgment and
common sense must be used, for example, in deciding what is a
"substantial period" of work experience.
Index 1150A-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
June 18, 1973
Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Provoked discharge
Appeal Board Decision 181,391
FALSIFICATION OF EMPLOYMENT
APPLICATION
Termination for falsely
claiming on an employment application to have experience operating a machine
used on the job may be a disqualifying provoked discharge.
Referee decision: The initial determination of the
local office holding claimant eligible to receive benefits effective October
30, 1972, without any disqualifying conditions, is sustained.
Appealed by: Employer.
Findings of fact: The claimant was employed by a
large cleaning contractor as a porter for about three months to October 23,
1972. His terminal salary was $3.72 an hour. The claimant executed and signed a
written application of employment dated July 19, 1972, in which he stated that
he had two years experience in operating a floor waxing (buffing) machine. He
also stated that he had experience in mopping large areas. The employer hired
the claimant and put him to work at several locations where machines were not
used. On October t 23, 1972, the employer sent the claimant to a location where
he was asked by the supervisor whether he could operate a floor buffing
machine. When claimant replied that he was able to operate the machine, the
supervisor put him to work. Claimant attempted to operate the machine but he
was unable to do so, although the supervisor attempted to instruct him in its
use. The claimant was discharged by the employer for being unable to operate
the waxing Machine and because of the false statement he made in his employment
application.
Opinion: The employer in hiring claimant
relied on the statements which claimant had made in his employment application.
The credible evidence establishes that claimant was unable to operate the floor
waxing machine and had misrepresented his work experience in his employment
application. Under these circumstances, we conclude that claimant provoked his
discharge, which is tantamount to a voluntary leaving of his employment without
good cause.
Decision: The initial determination of the
local office is overruled.
The employer's objection is
sustained. Claimant is disqualified from receiving benefits effective October
24, 1972 because he voluntarily left his employment without good cause by
provoking his discharge.
The decision of the referee
is reversed. (May 17, 1973).
COMMENTS
Statements or concealments
regarding circumstances prejudicial to the employer's interest must be
distinguished from mere "puffing" of experience or qualifications.
The former may lead to a disqualification, the latter need-not. Thus:
1. In A.B. 67,034, reported at A-750-1496 an electrician, who was unable to get work because of his age, exaggerated from 3 months to 3 years the length of time he worked for a previous employer. The Appeal Board overruled a disqualification.
2. In A.B. 58,928 (not reported) a class B machinist, anxious to be hired as a class A machinist in a steel plant, added 6 months to the period he worked for his penultimate employer in order to conceal his last job from which he had been discharged as not qualified. The Board sustained a disqualification for misconduct.
One important difference
between the two cases described above is that the machinist, unlike the
electrician, had previously been discharged because he was not qualified to
perform the work in question, and attempted to conceal the fact, an act which
was prejudicial to the employer's interests and went beyond mere
"puffing." Claimant's actions in the instant case also went beyond
mere "puffing," in that he falsely claimed to have a skill which was
required in the job for which he was hired.
Index 1180-4
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
July 24, 1973
Interpretation Service -Benefit claims
MISOONDUCT
Union relations
COURT OF APPEALS DECISION
Matter of Felix Rodriguez
STRIKE PROHIBITED BY LAW
Discharge for participating
in a work stoppage expressly prohibited by statute is ground for
disqualification for misconduct.
DECISION
Several years ago, the
court held that participation by employees in a strike in violation of a
"no-strike" clause contained in their collective bargaining agreement
with their employer did not constitute misconduct within the meaning of subdivision
3 of section 593 of the Unemployment Insurance Law so as to deprive them of
unemployment insurance benefits. (Matter of Heitzenrater [Hooker Chem. Corp.]
19 N Y 2d 1.) This appeal here by our leave, calls upon us to decide whether
the same result should follow where employees engage in a strike or work
stoppage which has been declared "unlawful" by statute (Labor Law
§713). In our view, it should not.
The facts are quickly told.
The employer, appellant P Hospital, is a voluntary non-profit making hospital.
The claimant-respondent, Felix Rodriguez, was employed as a worker in the
hospital's food service department for some five months. About 12 o'clock on
January 9, 1971, when the noon-day meal was being prepared and served to
hospital patients, the claimant and other workers on duty in the hospital's
main kitchen participated in a mass work stoppage to protest the disciplinary
action taken against two other employees. Although most of them returned to
their jobs shortly after the stoppage began, a group of more than 20, including
Rodriguez, continued to refuse to work. He also refused, despite orders from
hospital officials, to leave the premises and, indeed, did not depart until
approximately 7 p.m. The hospital thereupon discharged the claimant and other
participants in the work stoppage.
Rodriguez filed a claim for
unemployment insurance benefits and was found eligible. The hospital objected
and on its application, a hearing was conducted before a referee. Although he
found that the claimant engaged in a "mass work stoppage," he
concluded that it "must be considered an industrial controversy";
accordingly, he overruled the employer's objection and that the claimant was
entitled to unemployment benefits. The Unemployment Insurance Appeal Board affirmed
that decision citing the Heitzenrater case (19 NY 2d 1, supra)- the
Appellate Division unanimously affirmed the Board's determination (39 A D 2d
1015) and, as noted, the appeal is before us by our permission.
It has long been the policy
of the courts of this State to prohibit and enjoin concerted activities such as
strikes work stoppages and picketing directed against non-profit making
hospitals. (See, e.g., Jewish Hospital of Brooklyn v. John Doe,"
252 AV. Div. 581; Beth-El. Hospital v Davis, 34 Misc 2d 1045 Society
of New York Hospital v.Hanson 185 Misc. 937). Recognizing this long
standing policy, the Legislature, when it enlarged the coverage of the New York
State Labor Relations Act in 1963 to include employees of non-profit making
hospitals and residential care centers (L. 1963, ch. 515, §4, amdg. Labor Law,
§715, subd. [3] ), it also amended section 713 of that statute (Labor Law §713)
to expressly confirm the prohibition against all forms of strikes and work
stoppages at such hospitals (L. 1963, ch. 515, §3). After reciting that
"[n]othing in this article shall be construed...to interfere with, impede
or diminish in any way the right of employees to strike or engage in other
lawful, concerted activities," section 713, as amended goes on to provide,
in part, that:
"it shall continue to be unlawful for the employees of a non-profit making hospital or residential care center, or their representatives, or any other persons to engage in or to induce or encourage, or to attempt to engage in or to induce or encourage any strike, work stoppage, slowdown or withholding of goods or services by such employees or other persons at such hospital or residential care center."
The primary purpose of the
court-developed policy thus codified was to protect the public, and particularly
hospital patients, from the potentially disastrous consequences of such
activity. It is noteworthy that the Legislature did not merely prohibit work
stoppages; it also established alternative peaceful methods for resolving those
disputes for instance, by compulsory arbitration (Labor Law, §716; See, also,
Labor Law, §703-706) and, by so doing, removed justification for the conduct
proscribed.
Since the claimant
participated in a work stoppage which was expressly absolutely prohibited by
section 713, it follows that in contradistinction to the situation in the Heitzenrater
case (19 NY 2d 1, supra) he engaged in legislatively defined "misconduct
in connection with his employment" Labor Law, §593, subd. [3]. In Heitzenrater,
we decided that mere participation in a strike in violation of a no-strike
clause in a private collective bargaining agreement did not constitute such
"misconduct", within the sense of sect:593 as to deprive them of
unemployment insurance benefits, primarily because, to hold otherwise, would
have required those administering the Unemployment Insurance Law -the Division
of Employment to resolve complicated issues of labor relations properly
reserved to other agencies. Thus, in the course of our opinion in that case (19
NY 2d, at p. 7) we declared:
"Actually, 'fault' or 'misconduct' is not a meaningful concept to apply to a work stoppage which results when the parties in negotiating a collective bargaining agreement, cannot reach an understanding as to wages, hours or working conditions. If there be any 'fault', it is often attributable to both parties. Furthermore, even in those disputes which are precipitated by the apparent breach of an existing agreement, the determination of fault or misconduct involves questions of labor relations that are frequently complicated and recondite. It would have been decidedly "unwise to vest in officials of a social welfare agency -like those administering the Unemployment Insurance Law -the power to decide such matters. They are best left to agencies especially qualified to deal with them."
In cases such as the one
before us, however, the absolute nature of the prohibition insures that no
"complicated " or "recondite" questions of labor relations
law can arise. The simple fact is that the Legislature itself resolved all such
issues by explicitly proscribing and expressly stamping as unlawful strikes and
work stoppages by employees of non-profit making hospitals or, for that matter,
by public employees (Civil Service Law [Taylor Law], §210, subd. [1]). It would
constitute a strange rule of statutory construction to hold that one provision
of the Labor Law should be interpreted to require payment of benefits to an
individual who has been discharged for engaging in conduct in indisputable
violation of another, and later enacted, provision of that same statute. (See,
e.g. East End Trust Co. v. Otten, 255 N.Y. 283, 286-287. Gwynne v.
Board of Education, 259 N. Y. 191, 197.)
The fact and legal issues
in this case are clear and uncomplicated, and the statutory scheme, far from
requiring a policy of "governmental neutrality" between contending
private parties (Mtr. of Heitzenrater [Hooker Chemical Corp.], 19 NY 2d
1, 7, supra; Matter of Ferrara [Catherwood]; 10 NY 2d 1, 8), commits the
State to an active role in prohibiting a threatened injury to the public
interest when the conduct engaged in has been expressly declared
"unlawful" by the Legislature. A basic public policy of the State
-the prevention of disruption of essential services -would be defeated and
violated were we here to sanction the payment of unemployment benefits.
The order appealed from
should be reversed, without costs, the determination of the Unemployment
Insurance Appeals Board in favor of the claimant annulled and the employer's
objection to the claimant's eligibility for unemployment benefits sustained.
(July 5. 1973)
COMMENTS
- Matter of Heitzenrater, cited in this decision, is
reported at A-750-1594. It concerned a work stoppage in violation of a
no-strike clause in a collective-bargaining agreement. The Court
distinguished that situation from conditions, as in the instant case,
where the work stoppage has been "expressly declared 'unlawful' by
the Legislature. "
- A misconduct disqualification in accordance with
the instant rule would be effective beginning with the actual date of
discharge, since the employer-employee relationship is not terminated by
the controversy. (See A-750-1554).
- The Court decision also implies that while there
is such "unlawful" stoppage of work benefits are not payable to
workers involved in that work stoppage under any circumstance, on the
grounds of a basic public policy superseding the provisions or Section
592.1.
Index 1460C-2
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
September 10, 1973
Interpretation Service -Benefit Claims
TOTAL OR PARTIAL UNEMPLOYMENT
Discharge-related payments
Appeal Bard Decision 183,096
SALARY CONTINUATION UNTIL EFFECTIVE
DATE OF DISCHARGE
If a claimant is
discharged, with the effective date of the discharge set in the future, the
employer-employee relationship continues and the claimant is not totally
unemployed during the intervening period for which wage payments and fringe
benefits continue, even though he is not obligated to render any services in
that period.
Referee decision: The initial determination of the
local office holding claimant eligible to receive benefits effective November
6. 1972 without any disqualifying conditions is modified to hold claimant
ineligible to receive benefits effective November 26 through December 4, 1972
and from December 28 through December 31, 1972 because he was not available for
employment.
Appealed by: Employer and claimant.
Findings of fact: Claimant, an assistant manager,
worked for the employer for several years. On November 3, 1972 he was informed
that effective December 31, 1972 his employment would be terminated due to
reorganization. Claimant was also informed that he did not have to render any
further services to the employer and was advised to seek other employment
either through a private placement bureau, to which he was referred by the
employer, or through his own efforts. From November 6 through December 31, 1972
claimant received his regular salary and his coverage by the employer for major
medical insurance, profit sharing, life insurance, hospitalization and all
other fringe benefits was continued. Claimant's wife gave birth to a child on
November 26, 1972 and remained hospitalized until November 30, 1972. Claimant's
wife was ill thereafter and did not fully recover her health until December 4,
1972. Claimant obtained new employment late in December 1972 and started in
business position on January 2, 1973. Claimant could have begun his new
employment on December 28, 1972, but because he was receiving salary from his
last employer through December 31, 1972 he chose to begin his new employment on
January 2, 1973.
Opinion: The credible evidence establishes
that throughout the period from November 6, through December 31, 1972, the
employer-employee relationship continued; that claimant received his regular
salary and that he continued under coverage by the employer for medical
insurance, profit sharing, life insurance, hospitalization and all other fringe
benefits. Accordingly, we conclude that claimant was not totally unemployed
during the period in question and that he is, therefore, ineligible for
benefits under the Law. In view thereof, the issue of claimant's availability
for employment from November 26 through December 4, 1972 and from December 28
through December 31, 1972 becomes academic and need not be decided.
Decision The initial determination of the
local office is overruled.
The employer's objection
that claimant is ineligible to receive benefits effective November 6 through
December 31, 1972 because he was not totally unemployed is sustained.
The decision of the referee
is modified in accordance with the foregoing, and as so modified is affirmed.
(July 23, 1973).
COMMENTS
This case should be
distinguished from one in which, after the effective date of discharge,
claimant is kept "on the payroll" as a bookkeeping device to receive
payment in the nature of separation wages. (See A-750-1342).
Index 840-4
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
January 23, 1974
Interpretation Service -Benefit Claims
CLAIMS AND REPORTING
Due diligence
APPELLATE DIVISION DECISION
Matter of Kathryn M. Howard
FAILURE TO REPORT: ITINERANT OFFICE
A claimant in an itinerant
office may not receive credit for any period of unemployment from the day on
which an unexcused failure to report occurs, including intervening weekdays
on which the office is closed, until he is again entitled to credit by
subsequent compliance with reporting requirements.
DECISION
This is an appeal from a
resettled decision of the Unemployment Insurance Appeal Board, filed April 28,
1972, which modified the initial determination of the Industrial Commissioner,
holding claimant ineligible to receive benefits effective May 5 through May 9,
1971 because she did not comply with reporting requirements, and determined
that claimant was ineligible to receive benefits effective May 5, 1971 only.
Claimant, who last worked for
C.M. of Ellenville, New York, filed for benefits effective April 5, 1971 and
received three benefit payments through May 2, 1971. She lived in the vicinity
of said village and was assigned Wednesday as her regular day to report to the
itinerant unemployment insurance office at said place, which point was open
only on Mondays and Wednesdays. Claimant failed to report to said office on
Wednesday, May 5, 1971 because she went with a friend who was working in
Poughkeepsie to look for employment, although she didn't have any appointments
for job interviews. She did report to the Ellenville office on Monday, May 10,
1971, and in a statement dated that day recited that she had made calls for
work from a house at Poughkeepsie but did not remember the names of the places
called. At a hearing thereafter held, she indicated places to which she had
phoned.
The Industrial Commissioner
is directed to administer the Unemployment Insurance Law and is empowered to
promulgate necessary rules and regulations to properly administer the allowance
of unemployment insurance benefits (Labor Law, §530, subd. 1; Matter of
Ianni (Catherwood), 15 A D 2d 593). A claimant is entitled to
accumulate effective days for the purpose of benefit rights only if he has
complied with the provisions of said law regarding, among other things, his
registration as totally unemployed and the reporting of his subsequent
employment and unemployment (Labor Law, §590, subd. 1) and no effective days
shall be counted except those as to which notification has been given in a
manner prescribed by the commissioner (subd. 8). He is required to register as
totally unemployed at a local State employment office serving the area in which
he was last employed or in which he resides in accordance with regulations prescribed
by the commissioner and, after so registering, to report for work at the same
office or give notice of the continuance of his unemployment as often and in
such manner as prescribed by the Commissioner (Labor Law, §596, subd. 2).
Under section 473.2 of the
regulations of the Industrial Commissioner, a claimant is required to report in
person at the office or itinerant point where his claim for benefits is on file
at such days and hours as may be required by such office ( subd. 'b' ), and 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 accordance with section 473.1 of said regulations, whichever is earlier
(subd. 'd'), However, the failure to so report in compliance with section 473.2
may be excused by the Commissioner upon proper presentation of facts and
circumstances if it is shown to his satisfaction that they constitute good
cause (subd.'g')
Reporting in accordance
with the provisions of the Labor Law and the regulations of the Industrial
Commissioner is a necessary prerequisite to eligibility for benefits (cf. Matter
of Rescigno [Catherwood], 24 A D 2d 658), and we may not disturb the
board's finding that claimant did not have good cause for her failure to report
on May 5, 1971, since that finding is supported by substantial evidence (Matter
of Nixon [Catherwood] 29 AD 2d 895: cf, Matter of Iacone [Catherwood],
34 AD 590 ).
A regulation, such as 12
NYCRR 473.2, appears necessary, reasonable and valid in view of the vast number
of claims presented and processed and the effective administration of the
complexities of the act require regulated reporting such as the one under
consideration (Matter of Nixon [Catherwood], supra). It is within an
area of administration of the Commissioner which the Appeal Board is bound to
accept since the Commissioner, and not the Board, has been given the
legislative delegation (cf. Matter of Marsh [Catherwood], 17 A D 2d 527,
531, affd. 13 NY2d 235). In Matter of Omolino (Catherwood) (11 A D 2d
553), where claimant was instructed to report on a Friday, forgot to so report
but returned the following Monday, this court reversed the appeal board, upheld
the regulation and stated that claimant's failure to report on the Friday in
question deprived him of benefits for the otherwise effective days of that
week. In Matter of McGowan (Murphy) (266 App. Div. 933), where claimant
became unemployed on December 14, 1942 but did not file until January 27, 1943,
the court reversed the board and stated that it was without authority to
predate claimant's application to the December date. Thus, the instant
regulation of the Commissioner's within the discretion granted by the
Legislature and should not have been nullified or altered by the Board (cf. Matter
of Moorehead [Catherwood] 24 AD 2d 6663; 62 N.Y. Jur., Unemployment
Insurance, §139, p. 136)
The decision should be
reversed, without costs, am the matter remitted for further proceedings not
inconsistent herewith.
DISSENTING OPINION
There is no dispute as to
the facts:
The board's decision
attempts to equitably adjust the rights of claimants who report to a permanent
facility office and an itinerant office. Here, the claimant did not report on
the day assigned to her, but did report on a day when the itinerant office was
next opened. The board stated :
We find that there is no
adequate explanation for the difference in treatment afforded claimants who
report to itinerant points as between original claims, additional claims and
reporting requirements.
Since it fails to take into
consideration the considerable disadvantage in the service afforded to
claimants who are required to report to itinerant points, we conclude that
regulation 41 (d) is unreasonable and grossly unfair when it is interpreted so
as to penalize a claimant who fails to report to an itinerant point, as
required, on a day when such office is open and rules such claimant to be
ineligible to receive benefits until the next day he reports, even though the
itinerant office is not open in the interim period.
While reporting
requirements are reasonable, the penalty for failure to report is
discriminatory and should be construed so as not to include people reporting to
an itinerant office which is not open on a Monday through Friday basis.
The board's decision to
disqualify the claimant effective May 5, 1971 only should be affirmed.
(November 29, 1973).
COMMENTS
1. This decision affirms
the necessity, reasonableness and validity of Regulation 41d, am its application
by the Industrial Commissioner to claimants reporting to itinerant offices.
2. The principle has
already been established that a claimant whose unexcused failure to report
occurs on Friday loses credit also for Saturday and Sunday; and that a claimant
whose unexcused failure to report occurs on the day before a holiday which
causes the local office to be closed, loses credit also for such holiday.
(A-750-1425).
Index 1275A-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
March 11, 1974
Interpretation Service -Benefit Claims
REFUSAL OF EMPLOYMENT
Experience and training
Appeal Board Decision 185,963
EXECUTIVE SECRETARY
An executive secretary is
not reasonably fitted by training and experience for work as secretary and,
therefore, generally has good cause to refuse such employment. (See
"Comments").
Referee decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective March 1,
1973 because, without good cause, she refused employment for which she is
reasonably fitted by training and experience, is sustained.
Appealed by: Claimant.
Findings of fact: Claimant, an executive secretary,
was employed as such through October 13, 1972 when her employment ended under
non-disqualifying conditions. For the past 18 years she has been employed as an
executive secretary to various high ranking corporate officers in industries
and is currently employed as the executive secretary to the vice-president of a
large international trading company. The employment service had classified her
as an executive secretary.
The claimant filed an valid
original claim. effective February 19, 1973. On March 1, 1973, she was offered
five referrals to secretarial positions, she refused all of these referrals
because they were merely secretarial in nature. She was fitted for employment
as an executive secretary based on her training and experience.
Opinion: The credible evidence establishes
that claimant possesses extensive experience as an executive secretary to the
senior executive officers of large concerns and is so classified. It is
significant that she is currently so employed. Accordingly. we conclude that
the claimant had good cause to refuse the referrals to employment as a
secretary because she was not fitted for these by her training and experience.
Decision: The initial determination of the
local office is overruled. The decision of the referee is reversed. (October
10,1973).
COMMENTS
- "Executive secretary" is a new
Employment Service occupational classification which has recently received
Federal approval. It involves specialized duties and responsibilities
which place it at a higher skill level than that of secretary.
- Although not indicated in the Board's decision,
two of the five referrals to positions as secretary offered to claimant
met the prevailing wage for executive secretary. The instant decision,
therefore, represents an exception to the principle of Matter of Doyle
wherein a stenographer who refused an offer of employment as a
clerk-typist at a salary satisfying the prevailing wages for either
clerk-typist or stenographer, was held to have refused employment without
good cause. (see A-750-972).
Index 1460D-4
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
June 26, 1974
Interpretation Service -Benefit Claims
TOTAL UNEMPLOYMENT
Back pay awards
APPELLATE DIVISION DECISION
Matter of Minnie Cohen, 44 AD 2nd 286
AWARD REDUCED BY UNEMPLOYMENT
BENEFITS
An award in settlement of a
claim for wages lost because of wrongful discharge, which takes into account
the amount of Unemployment insurance benefits received by the claimant during
the period, does not affect his rights to such benefits.
DECISION
This is an appeal from a
decision of the Unemployment Insurance Appeal Board, filed May 10, 1973.
Claimant, a medical
secretary employed by a hospital five days a week, was discharged on March 2,
1972 when her employer discovered she was working concurrently at another job.
She continued in her second job until March 10, 1972 and thereafter filed for
and received unemployment insurance benefits from that point until April 25,
1972 when she commenced new employment at another location.
Her discharge from the
hospital was protested by her union and, upon submission of the controversy to
the New York. State Board of mediation, an arbitrator ruling in her favor that
she was not discharged for just cause directed that she "be reinstated to
her job without loss of seniority and other rights under the contract. The
Employer shall pay to Minnie Cohen $717.50 in full settlement of her claim for
wages lost because of the wrongful discharge." The calculation of the sum
of $717.50 was based upon earnings she would have received during the period of
lost employment from the time of discharge by the employer herein, less the
amount earned from the second employer and the unemployment insurance benefits
obtained.
In seeking recovery of the
benefits paid to claimant, the appellant Industrial Commissioner contends her
award is for back pay. Thus claimant was not "totally unemployed"
during the period she received them and such benefits should be recoverable as
within the definition of "retroactive payment of remuneration."
(Labor Law, § 597, subd. 4.)
The Unemployment insurance
Appeal Board disagreed and held the payment was not "remuneration" as
defined by subdivision 1 of section 517 of the Labor Law since the arbitrator's
award determined by reducing her earnings by the amount of unemployment
received together with other income and, thus, not within the contemplation of
the statute.
The award of the arbitrator
was, in fact, a determination of the measure of damages for her wrongful
discharge. The amount of the award was calculated by reducing the total amount
she would have earned from the hospital by the amount of income obtained from
collateral sources. In other words, the arbitrator held she was bound to
mitigate her damages. Accordingly claimant was totally unemployed during the
period under review and there was no overpayment.
The decision should be
affirmed with costs. (April 25,1974)
COMMENTS
1. This decision introduces
a new element in cases involving an award for wrongful discharge. It concludes
that such an award, if the amount is reduced by the unemployment insurance
benefits received for the period in question, does not render the claimant
employed and is therefore not "remuneration" so that the provisions
of Section 597, regarding recovery of benefits upon a retroactive payment of
remuneration, are not applicable.
2. An award of
"back-pay" which is reduced only by earnings in other employment
should, as in the past, be considered to be a retroactive payment of
remuneration within the purview of Section 597.
3. The principle of the
instant decision should be distinguished from the rule A-750-1125 concerning a
"back-pay" award which does not take into account any unemployment
benefits received but still falls short of full restoration of wages lost. In
such a case, claimant should be held "not totally unemployed," but
for only part of the period of his unemployment following discharge, determined
by measuring the amount of the award against his customary wage rate.
Index 725.13b
1150C.6(b)
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
July 15, 1974
Interpretation Service -Benefit Claims
MISCONDUCT
Theft and mishandling of funds
AVAILABILITY AND CAPABILITY
Health
Appeal Board Decision 191,103
DISCHARGE FOR PILFERING
- Discharge for pilfering is not disqualifying when such
conduct stems from a psychiatric disorder manifested by a compulsion to
steal.
- A claimant discharged under such circumstances is
incapable of employment in the absence of medical evidence that he is no
longer suffering from the psychiatric disorder.
Referee decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective
September 28, 1973, because he lost his employment through misconduct in
connection herewith, is overruled.
Appealed by: Industrial
Commissioner.
Findings of fact: The claimant, an electrical
technician, worked for a public utility for about 23 years through September
27, 1973. He has a psychiatric disorder manifested, in part, by his compulsion
to take from others objects for which he had no personal use. In the last two
years he was arrested four times for petty larcenies. On September 27, 1973 he
took from the employer’s premises, without permission, two rolls of wire,
valued at about $140, for the use and benefit of a friend. When accused, he
admitted that he had taken the wire and promptly retrieved the two rolls. The
claimant was discharged because of this act. After his discharge, he first
sought psychiatric attention for his condition and is now undergoing such
treatment. He filed an original claim for benefits on October 9, 1973.
Opinion: The credible evidence establishes
that the claimant was discharged for committing an act over which he had no
control. When we have heretofore considered conduct leading to disqualification
either for misconduct or a provoked discharge, we have sustained such a
disqualification where claimant committed a conscious act of free will. On the
other hand, when the claimant’s conduct stemmed from an illness, it has been
held not to result in such disqualifications (Appeal Board 192,188; 103,193).
In the instant case, the claimant was suffering from a psychiatric disorder
which by its nature precludes the conclusion that his act was that of a person
freely exercising his will. In the absence of any evidence that the claimant’s
behavior was deliberate, willful or consciously wanton or negligent, and in
view of the persuasive medical evidence of claimant’s psychiatric disorder at
the time of the acts here in issue, we conclude that the claimant‘s acts did
not, under the Unemployment Insurance Law constitute misconduct nor did he
provoke his discharge.
However, since it appears
that claimant had not sought medical attention for his psychiatric disorder
until after he was discharged and that he filed his claim for benefits within
two weeks of his discharge, and in the absence of medical evidence to the
contrary, we conclude that at the time he filed his claim he was still
suffering from the psychiatric disorder and was, therefore, incapable of
employment.
Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective September
28, 1973 because he lost his employment through misconduct in connection
therewith is modified to hold claimant ineligible to receive benefits effective
October 9, 1973 because he was not capable of employment, and as so modified,
is sustained.
The decision of the referee
is modified accordingly, and as so modified, is affirmed. (April 26, 1974)
Index 1105A-4
1605E-1
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office
September 12,1974
Interpretation Service -Benefit Claims
MISCONDUCT
General
VOLUNTARY LEAVING
General
COURT OF APPEALS DECISION
Matter of Leola James, 34 NY 2nd 491
"PROVOKED DISCHARGE"
CONCEPT VOIDED
There is no statutory
authority for a disqualification on the grounds of a "provoked
discharge" and, therefore, if an employer decides to discharge a claimant
because of an act or omission which is detrimental to his interests, there can
only be a misconduct disqualification.
DECISION
These are three appeals
argued together, each of the three claimants raising objection to the
administrative application of the so called doctrine of voluntary separation
from employment by provoked discharge. Each claimant, at one level or another
of the procedure in the Division of Unemployment Insurance, was denied
insurance benefits on the purported ground that each had provoked her discharge
and had therefore terminated her employment voluntarily. In each case the Appellate
Division affirmed the decision of the Unemployment Insurance Appeal Board and
the claimants appeal by leave of this court.
There should be an
affirmance in each of the three cases. Although the doctrine of provoked
discharge has been improperly extended and applied by the Division, on the
findings of fact in each case, claimant by her misconduct had rendered herself
and had been held by the Division to be ineligible for unemployment insurance
benefits until she first qualified herself by reemployment as provided in the
applicable statute.
The Unemployment Insurance
Law (Labor Law, art. 18) provides, inter alia, that for a limited period
measured by subsequent employment of not less than three days in each of four
weeks or earnings of at least $200, one is ineligible to receive benefits, if
the employee voluntarily left his employment or if the employee had been
discharged for misconduct in connection with his employment (Labor Law, §593).
At one time there had been
a difference in the disqualification periods for the two kinds of separation
from employment noted above, a longer period or disqualification being imposed
for misconduct discharges. Since 1958 the periods have been the same (L. 1958,
ch. 387, §15, amdg. § 593 of Labor Law).
Be that as it may, the
doctrine of provoked discharge had its origin not in the statute but in Matter
of Malaspina [Corsi] (309 N.Y. 413) and the special kind of discharge there
involved. An employee was discharged by his employer because the employee had
refused to join the union in an agency shop under a collective bargaining
agreement. The act of the employee in refusing to join the union was therefore
voluntary. The act of the employer was compelled by its obligation under the
collective agreement. It was held that under such circumstances the employee,
who had known of the requirement before employment and being fully aware of the
inevitable consequences of his refusal, had voluntarily left his employment by
provoking his discharge. Arguably, this was a legitimate and essential gloss on
the statute to fill a gap. It did not purport to, nor might it, create a third
and distinct category for determining temporary ineligibility for unemployment
insurance benefits (see, however. cases cited by respondent, which appear to have
tolerated the unauthorized expansion or the doctrine: Matter of Gladstone
[Catherwood], 30 NY 2d 576; Matter of Edwards [Levine], 31 NY
2d 643, den. lv., 39 AD2d 644; Matter of Schnee [Levine], 31 NY 2d 642,
den. lv., 39 A D 2d 644; Matter of Goloty [Catherwood], 29 N Y 2d 489,
den. lv., 39 A D 2d 1022; Matter of Morales [Catherwood], 28 NY 2d 485,
den. lv., 36 A D 2d 579; Matter of Kreager [Catherwood], 27 N Y 2d 737,
appeal dsmd.).
It is suggested by
respondent that administrative extension of the doctrine beyond the situation
where the employee's voluntary acts result in the employer's "involuntary
discharge" of the employee arose from two conditioning circumstances. The
first was the pre-1958 difference in eligibility periods between voluntary
separation and misconduct. The second was the reluctance to stigmatize a
discharged employee with misconduct. In short, the doctrine for either or both
of these reasons was extended to accomplish on the one hand a benevolent
purpose, and on the other a euphemistic purpose, perhaps understandable, but
logically mischievous. Indeed, claimants argue, with some cogency, that the
inappropriate extension of the doctrine has in effect introduced, without
statutory authority, an added, distinct ground for disqualification, and to
make matters worse, susceptible of arbitrary application.
The criticism by claimants
is sound but the result of invoking it in the cases at hand does not entitle
them to relief. In each instance, the claimant was guilty of misconduct in
connection with her employment, and the findings of fact, apart from the
characterization of the conclusion, resulted properly in temporary
ineligibility. In two of the cases, the employee was advised directly that
continued misconduct would result in sanctions being imposed, in one case by
discharge, and in the other by treating the misconduct as insubordination, a
polite and euphemistic way of advising the employee that she was inviting
discharge. In the third case, it is immaterial whether the employee's conduct was
characterized as misconduct or as a voluntary separation: after sustaining
injuries, she did not return to her employment and, although being requested to
advise her employer when she would return, she did not.
Consequently, it is
concluded that there should be an affirmance in each of the cases for the
reasons above stated, but with the urgent suggestion that the Division, if its
determinations are to survive judicial review, recast its thinking,
regulations, and applications of the standards under the statute. Otherwise, as
claimants argue, it may happen, although it did not in the instant cases, that
persons are denied eligibility because discharged but only for valid cause
which, however, could neither be characterized as misconduct nor voluntary separation.
There is no question that "valid cause" for discharge must rise to
the level of misconduct before an employee becomes ineligible to receive
benefits. This, the Division's regulations unequivocally expressed, in
classifying, among other things, inefficiency, negligence, and bad judgment, as
valid causes for discharge and which do not render the employee ineligible.
Among other jurisdictions,
there has always been disagreement whether one who effects his own discharge by
indirection my be deemed to abandon his employment "voluntarily". The
doctrine is a fiction in most cases, the real cause of discharge being
misconduct. Some jurisdictions refuse to recognize the category of
"constructive voluntary leaving" (see 81 C.J.S., Social Security and
Public Welfare, §164, at p. 250; see, also, Ann., Unemployment Compensation
-Union Acts; 90 ALR 2d 8:35, 837). It would seem that the doctrine arose
largely within the context of union activities and collective bargaining
agreements, where special policy considerations were at work. Certainly those
special concerns account, in large measure, for the Malaspina (supra)
result (see Ann., Unemployment Compensation -- Union Acts, op. cit., supra).
For the large majority of cases, considerations of eligibility under the rubric
of misconduct leads to more sensible analysis and resolution. More important,
the statute requires it.
In the light of the above
analysis, it is timely to turn to the particular acts and findings in each or
the three cases.
Claimant James was employed
as a counter girl in a coffee shop. After repeatedly reporting for work under
the influence of alcohol she was told that unless that ceased she would be
discharged. On her last day of employment she reported for work under the
influence or alcohol, and was discharged at the end of the working day. An
initial determination was made that she had been discharged for misconduct or
in the alternative that she had provoked her discharge. The referee and the
Appeal Board without changing any finding of fact concluded that she had
voluntarily left her employment by provoking her discharge. The result of
ineligibility was compelled once the facts were found as they were. It would
serve no useful purpose to remand the claim to the Division to reassess the conclusion.
The net effect would be only to substitute the correct category for the
misapplied doctrine or provoked discharge.
Claimant Guerrasio was a
restaurant cashier and hat check girl. Sustaining injuries in a motorcycle
accident, she was away from her employment with initial advice to her employer.
The referee found that she was not ineligible because her physical condition
had prevented resumption of employment. The Appeal Board found that claimant's
sister had advised the employer of the accident and her expected disability for
one week. Claimant was not heard from until some three weeks after the
accident, despite unanswered telephone calls to her. Just before the summer,
her father telephoned the employer, advised that she was with relatives upstate,
and that she would like to return to work after the summer. The restaurant
would be closed during the summer. The Appeal Board held that claimant provoked
her discharge. In fact she had, according to the Board's finding, voluntarily
terminated her employment for the time being, or, in the alternative, was
guilty of misconduct in fixing her own periods of employment and in not giving
notice of when she would be able to return to work. Again, it would serve no
useful purpose to remand the claim to the Division to reassess the conclusion,
only to eliminate the inappropriate language of provoked discharge which should
be limited to "involuntary" discharge by the employer due to
"voluntary" act of the employee.
Claimant Morrison's case is
the most troublesome of the three. She was employed as a social case worker in
a mental health clinic, and became involved in a tendentious exchange. When a
superior asked for her to explain the disposition in a particular case, she,
according to the superior, did not give a satisfactory explanation. She was
called to the director's office were the superior was also present. Sensing the
confrontation she left the director's office, although first warned by the
director that her leaving would be considered an act of insubordination. She
was later discharged. The referee and Appeal Board found the facts as above and
held that she had provoked her discharge. Of course, misconduct could always
provoke discharge but that is not what the doctrine covers. For that matter
"valid cause", to the extent dependent on voluntary acts, could be
said to "provoke discharge". This claim demonstrates best the misuse
of the provoked discharge doctrine and the dangers of misuse. At the same time,
the findings unequivocally point to misconduct and the Division so found or
else it could not have verbalized as applicable the provoked discharge
doctrine. Hence, as with the other cases, no useful purpose would be served in
remanding the claim to the Division to reassess the findings or the result.
In summary, each of the
cases demonstrate the inappropriateness of the provoked discharge doctrine,
where the employer may or may not choose to discharge the unsatisfactory
employee. Matter of Malaspina [Corsi] (309 N.Y. 413, supra) should be
confined to the instance of the "involuntary" discharge by an
employer for cause flowing from the "voluntary" act or acts of the
employee. Causes for discharge which do not attain the level of misconduct may
not be used to render claimants ineligible for benefits. Voluntary separation
should, except perhaps in the unusual situation of the Malaspina case,
be confined to the giving up of employment, permanently or temporarily without
cause or justification.*
* Attorneys for claimants
are commended, despite the technical outcome of the appeals, for their efforts
on these appeals and for the benefit conferred in helping clarify the standards
for eligibility for unemployment insurance benefits. (July 11,1974).
Accordingly, the orders of
the Appellate Division should be affirmed, without costs.
COMMENTS
- This decision virtually outlaws the concept of
voluntary leaving by provoked discharge. The only exception would be
instances where the voluntary act of an employee compels his employer to
discharge him. The Court characterized such a separation as an
"involuntary discharge" and cited as an example Matter of
Malaspina ( A-750-1286, revised). In that case, claimant's loss of
employment was compelled by his failure to join a union as required by the
collective bargaining agreement and was held to be a voluntary leaving
without good cause. The employer had no choice.
Another
example would be refusal to fill out a personnel security questionnaire
required by the Federal Department of Defense and which is a condition to
continuance in employment. Still another example would be loss of employment as
a truck driver or cab driver by claimant who allowed his driver's license to
lapse. In all of these cases, there is a voluntary leaving of employment.
(However, if a driver's license was cancelled because of a violation of law, a
misconduct disqualification would be in order.)
- At the same time, the Court has broadened the
concept of "misconduct" so that in practically all cases where
in the past a provoked discharge disqualification was imposed, a disqualification
for misconduct may be substituted. This includes any case where claimant
was discharged for an act or omission, on or off the job, which was
detrimental to his employer's interests. The restrictive meaning which
previously had been applied to the term "misconduct" must be
disregarded. Former definitions of this term in the Interpretation Service
or elsewhere are no longer valid.
- The term "provoked discharge" or its
equivalent should be avoided in all cases, and should not appear anywhere
on the Notice of Determination.
Index No. 1105 D-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION ADJUDICATION SERVICES OFFICE
September 27, 1974
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT Termination of disqualification
COURT OF APPEALS DECISION
Matter of Clyde Slade
DISCIPLINARY SUSPENSION FROM
EMPLOYMENT
A disqualification for
misconduct may, under appropriate circumstances, be imposed upon disciplinary
suspension from employment, but may not extend beyond the date set for
reinstatement.
APPELLATE DIVISION DECISION
Appeal from a decision of
the Unemployment Insurance Appeal Board, filed June 27, 1972, which determined
that claimant was ineligible from receiving benefits effective October 12, 1971
on the ground that his loss of employment was due to misconduct in connection
therewith.
Claimant, an auto mechanic
employed by a bakery, was discharged on October 11, 1971 when he was seen
leaving the plant with two loaves of bread. There had been a number of thefts
in the plant, and the employer had posted signs to the effect that anyone
caught stealing would be discharged forthwith. Claimant protested his dismissal
and, pursuant to his union’s collective bargaining agreement, the issue was
submitted to binding arbitration.
On February 14, 1972 the
State Mediation Board determined that the penalty of discharge was too severe,
and restored him to his position without loss of seniority rights imposing a
disciplinary suspension with total loss of pay from October 11,1971 to the date
of reinstatement, which was set at five days after receipt of the
determination. When claimant applied for reinstatement, there was no work
available since the company was going out of business.
After a hearing, the
Referee determined that claimant’s loss of employment was due to misconduct in
connection therewith. On appeal the board affirmed the Referee’s determination.
On this appeal, claimant contends that this determination is erroneous in that
the Referee and the board failed to properly consider the effect of the
arbitration award, which set aside claimant’s discharge. The board was required
to consider the award of the State Mediation Board, which was binding upon both
the employer and employee. This award in effect abrogated claimant’s discharge.
Thus, as a matter of law, claimant was never discharged, but instead was
suspended. Since claimant, as a matter of law, was not discharged by the
employer, the board could not predicate its determination upon a loss of employment
through misconduct in connection therewith. Upon claimant’s reinstatement,
there being no work available, he became unemployed and eligible for benefits.
There is, therefore, no substantial evidence on the present record to support
the board’s determination.
Decision reversed, and
matter remitted for further proceedings not inconsistent herewith, without
costs.
COURT OF APPEALS DECISION
Order affirmed, with costs,
on the memorandum at the Appellate Division. (July 10, 1974)
COMMENTS
- This decision represents an exception to the
statutory requirement that a disqualification for misconduct terminates
only when a claimant "has subsequently worked in employment on not
less than three days in each of four weeks or earned remuneration of at
least two hundred dollars". (Section 593.3)
- A claimant who refrained from filing for
benefits until after the reinstatement date of a fixed-period disciplinary
suspension would not be subject to disqualification based on the
suspension. The Court’s ruling thus has the effect of eliminating the
accident of filing as a factor in determining eligibility in such cases.
Index No. 1110-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION ADJUDICATION SERVICES OFFICE
January 6, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS MISCONDUCT Absence and
lateness
Appeal Board Decision 197,674
EXCESSIVE ABSENCE
Absence for a
non-compelling reason after the employer has indicated its displeasure with an
excessive absence record, is misconduct.
Referee Decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective May
22, 1974 because she voluntarily left her employment without good cause by
provoking her discharge, is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: The claimant, age 21, worked as a
general office worker for a research service company for about twelve weeks
through May 21, 1974. During the short period of her employment she was absent
a total of eight times. Most of her absences occurred as a result of
preparation for her forthcoming marriage. The employer made known to her its
displeasure with her repeated absence. On May 21, 1974 the claimant was absent
from work because she was waiting with her family at a hospital while her
sister was giving birth. She was discharged because of her excessive absences.
Opinion: The credible evidence establishes
that the claimant was absent from work on eight separate occasions within a
period of about twelve weeks. In the total absence of medical evidence and in
view of the claimant’s earlier statement to the local office wherein she
explained her absences entirely on the basis of preparations for her marriage
we reject the claimant’s contention that her absences were due to illness, and
we find that her absences were for non-compelling reasons. The claimant’s
conduct amounted to abuse of her employer’s interest which gives the employer
the right to expect that, except for compelling reasons, an employee will
report to work regularly. Under the circumstances we conclude that the claimant
lost her employment through misconduct in connection therewith.
Decision: The initial determination of the
local office is modified to disqualify the claimant from receiving benefits
effective May 22, 1974 because she lost her employment through misconduct in
connection therewith.
The decision of the referee
is reversed. (October 2, 1974)
Index No. 1110-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION ADJUDICATION SERVICES OFFICE
January 9, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT Absence and lateness
Appeal Board Decision 195,977
FAILURE TO NOTIFY WHEN ABSENT
Failure without good reason
in violation of employer’s rule to contact employer on the first day of absence
after having been warned to do so, is misconduct.
Referee Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective March 23,
1974 because he voluntarily left his employment without good cause by provoking
his discharge, is overruled.
Appealed By: Industrial Commissioner.
Findings of Fact: The claimant was employed by a
food refrigeration company as a traffic clerk for 25 weeks through March 22,
1974. During this period of time, claimant was absent 16½ days and was warned
about his absenteeism and his failure to comply with the rule that when he was
absent from work he must notify the employer in advance of the start of his
shift. Claimant knew of this regulation. Claimant did not report for duty on Monday,
March 18, 1974 nor did he or anybody else contact the employer. On March 20,
1974 claimant’s wife telephoned the employer and explained that claimant had to
leave for South Carolina on Sunday, March 17, 1974 in order to attend the
funeral of his aunt. Claimant was discharged for his last absence and for
failure to notify the employer in advance of his shift.
Opinion: The credible evidence establishes
that claimant had been warned about the necessity of adhering to the rule
requiring that he notify the employer in advance of his shift, if he was to be
absent from work. In view of the warnings previously issued for his infractions
of this reasonable rule, he should have protected his employment by notifying
his employer on the first day of his absence. Claimant voluntarily elected not
to adhere to this rule. This act of disobedience by claimant constitutes
misconduct in connection with his employment.
Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective March 23,
1974 because he voluntarily left his employment without good cause is modified
to disqualify claimant for misconduct in connection with his employment, and as
so modified, is sustained.
The decision of the referee
insofar as appealed from is reversed. (July 31, 1974)
Index No 1110-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION ADJUDICATION SERVICES OFFICE
January 13, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT ABSENCE AND LATENESS
Appeal Board Decision 199,635
EXCESSIVE LATENESS
Repeated lateness for
non-compelling reasons despite warning by supervisor, is misconduct.
Referee Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective June 13,
1974 because he voluntarily left his employment without good cause by provoking
his discharge, is overruled.
Appealed By: Employer
Findings of Fact: Claimant was employed as a porter
in a hospital for about 15 months. He initially traveled to work by automobile.
When the car was stolen, he thereafter had bus transportation. Claimant was
repeatedly warned by his supervisor for latenesses, and that he would be
discharged if he failed to show improvement. Nevertheless, he thereafter was
again late on several occasions, including one-half hour on June 8, 1974. He
was discharged by the employer on June 12, 1974, after a conference with his
supervisors.
Opinion: The credible evidence establishes
that notwithstanding the various warnings, claimant persisted in latenesses
thereafter, which inevitably jeopardized the continuance of his employment. His
failure to comply with these warnings constituted misconduct in the course of
employment. Under the circumstances, he lost his employment through misconduct
in connection therewith (Matter of James, ___N.Y. 2d ___, aff’g 40 AD 2d 949
aff’g Appeal Board 169,366).
Decision: The initial determination of the
local office is modified to disqualify claimant from receiving benefits
effective June 13, 1974 because he lost his employment through misconduct in
connection therewith and, as so modified, is sustained.
The decision of the referee
is reversed. (October 17, 1974)
Index No. 1110-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION ADJUDICATION SERVICES OFFICE
January 23, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT Absence and lateness Insubordination
Appeal Board Decision 197,338
TIME OFF WITHOUT PERMISSION
Claimant’s precipitous
action in announcing that he would take the next two days off for vacation, and
then doing so in defiance of supervisor’s denial of permission, is misconduct.
Referee Decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective April
9, 1974, because he voluntarily left his employment without good cause by
provoking his discharge, is overruled.
Appealed By: Employer
Findings of Fact: The claimant, a graphics, photo
and paste-up man, worked for a newspaper for eight months until April 8, 1974.
He was employed on a part-time basis, Monday through Wednesday, 9 A.M. to 6:30
P.M. Late in the afternoon on Monday April 8, he told his immediate supervisor
that he would be absent for the remainder of the week, as he was going to Ft.
Lauderdale, Florida for the Easter vacation. The supervisor remonstrated with
claimant and advised claimant that he could not be spared, but claimant
insisted on going. When claimant returned from Florida and reported back to
work on Monday, April 15, his supervisor told him that he had been discharged.
Claimant’s job duties
entailed the operation of sensitive photograph equipment requiring special
training and experience. The skills that he possessed were needed particularly
on the two days of each week, Tuesday and Wednesday, before the employer’s
publication went to press. A replacement for the claimant, who would be
satisfactory to the employer, would be difficult to obtain on short notice.
Opinion: The credible evidence establishes
that late in the afternoon of Monday, April 8 the claimant told his immediate
supervisor that he would not be in to work again until the following Monday,
April 15, because he was going to Florida for the Easter vacation. The
supervisor denied claimant permission to make the trip. On April 9 the claimant
left for Florida. As a result of his precipitous action and the position in
which he placed the employer thereby, claimant was discharged for what is deemed
to be misconduct in connection with his employment.
Decision: The initial determination of the
local office is modified to be on the ground that claimant lost his employment
through misconduct in connection therewith and as so modified, is sustained.
The decision of the referee
is reversed. (October 28, 1974)
Index No. 1110-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION ADJUDICATION SERVICES OFFICE
January 27, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT Absence and lateness
Appeal Board Decisions 196,403 and 199,005
OVERSTAYING LEAVE
Overstaying a leave of
absence and failing to communicate promptly with employer to explain why, is
misconduct, unless there is a compelling reason for both infractions.
A.B. 196,403
Referee Decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective March
20, 1974 because she voluntarily left her employment without good cause by
provoking her discharge, is overruled.
Appealed By: Employer
Findings of Fact: The claimant, a secretary, worked
in a bank for approximately 2 years until March 5, 1974. On that date she
received a telegram stating that her father was ill in the West Indies. She
arranged a two-week vacation from March 6 through March 19, 1974. She was due
to return to work on March 20, 1974. The claimant had made arrangements for a
return flight on March 19, 1974, which she missed. She did not return to New
York until March 20. She failed to communicate with her employer until March
21, 1974 at which time she was discharged.
Opinion: The credible evidence establishes
that the claimant failed to report to work or call in her absence of March 20,
1974. She knew that she was expected back to work on March 20 and did not make
any effort to notify the employer of her absence. We reject her contention as
incredible that she missed the return flight because it took off earlier due to
a fuel shortage. We see no relationship between a fuel shortage and an
unscheduled early departure without notice to the passenger. We also reject her
contention that she was told by her supervisor that she could take extra time
if necessary, without notice. This is an afterthought in view of her earlier
statement at the local office where no mention of extra time was made. Under
the circumstances the claimant’s failure to report to work as scheduled and
failure to call in her absence was an act of misconduct in connection with her
employment.
Decision: The initial determination of the
local office is modified to disqualify the claimant from receiving benefits
effective March 20, 1974 because she lost her employment through misconduct in
connection therewith and as so modified, is sustained.
The decision of the referee
is reversed. (October 3, 1974)
A.B. 199,005
Referee Decision: The initial determination of the
local office holding the claimant eligible to receive benefits effective April
29, 1974 without any disqualifying conditions and overruling the employer’s
objection thereto, is sustained.
Appealed By: Employer
Findings of Fact: The claimant, a porter, worked for
a hospital for about six months through December 25, 1973. On November 16, 1973
he asked for a month’s leave of absence to visit his family in India. The
employer granted him a leave of only two weeks commencing December 28, 1973 and
terminating on January 11, 1974. On December 29, 1973 and terminating on
January 11, 1974. On December 29, 1973 the claimant received a cable that his
son was hospitalized in India. On the same day he bought an excursion airplane
ticket to India which required him to remain in that country for at least 21
days. He departed from the United States on December 30, 1973. His son had been
suffering from acute tonsillitis but by the first week in January 1974 he was
fully recovered. Following the recovery of his son the claimant made no effort
to return to work after the termination of his leave on January 11, 1974. On
January 17, 1974, while the claimant and his son both were in good health, the
claimant telegraphed a request to the employer for an extension of his leave
until February 1, 1974. The employer did not respond to that request and when
the claimant still had no returned to work by January 23, 1974, he was
terminated. From January 18, 1974 through March 19, 1974 the claimant was
treated for an ulcer. He did not return to the United States until April 24,
1974.
Opinion: The credible evidence establishes
that after receiving a two weeks leave of absence which was to terminate on
January 11, 1974, the claimant bought an excursion ticket to India which
required him to remain in that country for at least until January 19, 1974,
eight days beyond his leave of absence. Even though his son was hospitalized
because of tonsillitis the medical evidence establishes that the son had
completely recovered and was capable of resuming his normal functions at least
a week before the end of the claimant’s leave of absence. During that week the
claimant did not return to work or contact the employer. It was not until six days
after the termination of his leave that the claimant telegraphed a request to
the employer for an extension of his leave until February 1, 1974. Under the
circumstances we conclude that the claimant had no compelling reason to be
absent from work on January 12, 1974 and that he should be disqualified from
receiving benefits because he lost his employment through misconduct in
connection therewith by unilaterally fixing his own periods of employment. Matter
of Guerrasio (34 N.Y. 2d 491). His illness subsequent to that date is
immaterial.
Decision: The initial determination of the
local office is overruled.
The employer’s objection is
sustained.
Claimant is disqualified
from receiving benefits effective January 24, 1974 because he lost his
employment through misconduct in connection therewith.
The decision of the referee
is reversed. (November 13, 1974)
Index No. 1130-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION ADJUDICATION SERVICES OFFICE
January 30, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT Absence and lateness Behavior off job
Appeal Board Decision 199,344
ABSENCE DUE TO INCARCERATION
When a claimant had been
warned about absences, discharge for absence due to incarceration for an
offense committed outside the course of employment, is a loss of employment due
to misconduct, since the absence was caused by claimant’s own actions and
violated a reasonable condition of employment – regular and prompt attendance.
Referee Decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective June
4, 1974 because he voluntarily left his employment without god cause, is
overruled.
Appealed By: Industrial Commissioner
Findings of Fact: The claimant, a machine operator,
worked for the employer for approximately seven months until June 3, 1974.
During the course of claimant’s employment he had been absent on numerous
occasions and had been warned about the necessity of reporting to work on time.
He last worked on June 3, 1974. That evening the claimant was arrested for
assaulting his wife. He was in jail until the morning of Friday June 7, 1974.
He did not contact his employer until June 10, 1974. When claimant telephoned
his employer that morning he was informed that he was discharged because of his
absenteeism.
Opinion: The credible evidence establishes
that claimant’s last absences were caused by his own actions when he assaulted
his wife, and that he was discharged because of his overall poor attendance record.
The claimant’s absences were excessive and violated a reasonable condition of
his employment, which required his regular and prompt attendance. Accordingly,
we conclude that claimant lost his employment due to misconduct in connection
therewith.
Decision: The initial determination of the
local office is modified to disqualify claimant from receiving benefits
effective June 4, 1974 because he lost his employment due to misconduct in
connection therewith and, as so modified, is sustained.
The decision of the referee
is reversed. (November 29, 1974)
Index No. 1690-61705-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION ADJUDICATION SERVICES OFFICE
March 17, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING Pension or retirement Reduction-in-force situations
COURT OF APPEALS DECISION
Matter of Louis Fisher
EARLY RETIREMENT:
REDUCTION-IN-FORCE PROGRAM
An employee who elects to
take advantage of his employer’s early retirement plan is subject to
disqualification for voluntary leaving even though the plan is offered to
achieve a reduction of the employer’s work force.
DECISION
The issue is whether the
Unemployment Insurance Appeal Board’s decision that claimant’s retirement from
the United States Postal Service in response to his employer’s request for a
reduction in work force was a "voluntary separation" from employment
"without good cause" disqualifying him from receiving benefits is
valid. The Appellate Division reversed the Board’s decision and the Industrial
Commissioner appeals. We have concluded that the record supports the Board’s
determination and, accordingly, we must reinstate its decision.
Claimant, then age
sixty-four and an employee of the United States Postal Service for twenty-seven
years, retired from the Service on June 30, 1972 in order to take advantage of
an early retirement plan offered by his employer as an incentive towards
achieving the latter’s objective of reducing its work force. The retirement
opportunity was explained in a memorandum issued by the Postmaster General on
June 5, 1972. It notified employees that those meeting certain eligibility
requirements who retired and were on a non-pay status no later than June 30,
1972 would receive a 4.8 % increase in retirement annuities. The memorandum, in
part, stated: "The situation creating the discontinued-service retirement
opportunity arises from the fact that we have an excess number of employees.
But for the no lay-off provision in our National Agreement, we would be
actively engaging in a system-wide reduction-in-force… While I encourage you to
take advantage of this opportunity to retire, particularly in time to get the
4.8% cost-of-living increase, I want it clearly understood that no employee
will be coerced to submit a resignation in response to this request." The
memorandum also stated that resignations in response to the Postmaster
General’s request would be considered involuntary for retirement purposes, with
the consequence that retirement benefits would be more favorable than if the
retirement were considered voluntary by the federal agency. Three days after
his retirement, claimant filed for unemployment insurance benefits in New York.
Labor Law §593(1)(a), in
relevant part, provides: No days of total unemployment shall be deemed to occur
after a claimant’s voluntary separation without good cause from his last
employment prior to the filing of his claim until he has subsequently worked in
employment for not less than three days in each of four weeks or earned
remuneration of at least two hundred dollars." The effect of this section
is that, for a limited period measured by his subsequent employment [cf., Matter
of James (Levin) 34 N.Y. 2d 491, 494], a claimant is ineligible to receive
benefits if he voluntarily left his employment without good cause. Obviously,
the claimant here could not have met the conditions of this section. And, after
claimant had wended his way through the administrative pathways of the State
Unemployment Insurance System, the Appeal Board, the system’s highest
decisional body, found that he had left his employment voluntarily and without
good cause and, therefore, was subject to the disqualification period.
In the course of the
administrative proceedings, claimant stated in support of his claim that he had
elected optional retirement in order to take advantage of the Postal Service’s
offer of early retirement benefits and that both his employer and his union
paper had led him to believe he would then be eligible for state unemployment
insurance benefits.
The Appeal Board found that
claimant could have continued to work until the mandatory retirement age of
seventy, that he could have recouped the 4.8% increase in retirement annuity by
working an additional nine months and that, in leaving his employment solely to
take early advantage of the increase, he acted for a personal, non-compelling
reason and without good cause.
Judicial review of the
Board’s determination is explicitly limited by statute to questions of law.
Labor Law, §623, in relevant part provides: "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 fact and, unless appealed from, shall be final on
all questions of law." As a consequence, as to pure questions of fact, and
factual inferences to be drawn therefrom, a decision of the Appeal Board, which
then acts quasi-judicially, would be conclusive upon the courts if supported by
substantial evidence. Here the evidentiary facts were undisputed. [See, Matter
of Cassaretakis (Miller), 289 N.Y. 119, 125 (whether an individual
was a member of the crew of a vessel), affd. sub nom. Standard Dredging
Corp. v. Murphy, 319 U.S. 306.]
As to mixed questions of
fact and law, i.e., where the conclusion turns on the combined consideration of
factual and legal factors, the Appeal Board’s authority is quasi-legislative
with the concomitant right and responsibility to exercise its expertise and
judgment. Decisions so arrived at have been denominated "discretionary
determinations". (1 N.Y. Jr., Administrative Law §181, p. 601). They are
final if they have a rational basis. [See, e.g. Matter of Marsh (Catherwood),
13 N.Y. 2d 235, 239.] This is not to be confused with the "arbitrary and
capricious" test applied to purely administrative actions and sometimes
improperly applied to quasi-judicial or quasi-legislative determinations of an
administrative agency. (See, e.g., Matter of Colton v. Berman, 21
N.Y. 2d 322, 384.) Questions of law, of course, may always be reviewed by an
appellate court. (Matter of VanTeslaar (Levine), 35 N.Y. 2d 311,
317-318).
Applying these rules,
whether a particular separation from employment is "voluntary" and
"without good cause" (Labor Law §593 [1][a] in a particular case is
usually a question of fact for the Appeal Board. Where, however, the issue of
"voluntariness" is not a question of fact alone, but where, as here,
there is not even any dispute as to the evidentiary details, and it involves as
well quasi-legislative considerations of policy relating to the intended scope
of the statute, the question is one to the determination of which the Appeal
Board may bring to bear its own special competence in carrying out the
supervisory authority conferred on it by the Legislature.
This case also involves the
application of other rules arising out of the fact that the claimant was a
federal employee. In such cases, the Appeal Board, and the subsidiary divisions
of the state unemployment insurance administrative structure, are generally
conclusively bound (U.S. Code, tit. 5, §8506) by certain findings of the
claimant’s federal employing agency. These include 1/ "the reasons
for termination of federal service." (U.S. Code, tit. 5, §8506 [1][4].)
1/ The federal employing agency’s findings are also conclusive regarding 1) whether or not the employee performed federal service, 2) the period of federal service and 3) the amount of federal wages (U.S. Code tit. 5, §8506 [a][1-3]).
Accordingly, it is the practice
of the Industrial Commissioner to request the reasons for termination from the
claimant’s federal employer. If the claimant and his federal employer agree on
those reasons, then, pursuant to federal regulation, they are conclusive upon
the state agency (Code of Fed. Reg., tit. 20, §609.18). Finality also obtains
where the employee and his federal employer disagree and a determination is
then made by the federal agency or the United States Civil Service Commission
after a hearing on any issues in dispute (id.).
In the case before us,
claimant asserts that his retirement was either involuntary or, if voluntary,
was with good cause. His employer described the reasons for claimant’s
termination as "retired-gave no reason", explaining that terminology "represents
our conclusion that the claimant meets the tests of eligibility for
discontinued service retirement…. Claimant could have continued in his
employment, had he not retired. He was not coerced to submit his resignation,
but did so voluntarily." Claimant disputed the federal agency’s conclusion
that his retirement was voluntary. There was no hearing. Consequently, but the
Appeal Board and the Appellate Division concluded that, as to the disputed
conclusion of voluntariness, this "finding" was not binding upon the
Board under U.S. Code, tit. 5 §8506 and Code of Fed. Reg., tit. 20, §609.18.
We agree that the federal
agency’s conclusion that claimant had retired "voluntarily" was not
binding on the Board, but for different and additional reasons. In our view,
claimant’s employer’s characterization of this type of retirement as either
"voluntary" or "involuntary" [see, Matter of Sier (Levine),
42 AD 2d 207; Matter of Hiken (Levine), 40 AD 2d 926,] is
descriptive of the nature of his type of separation from employment only for
federal retirement purposes. It is not a "reason" for termination
which binds the Appeal Board in its administration of our state Unemployment
Insurance Law.
Federal statute [U.S. Code,
tit. 5, §8502 (b)] further provides that where, as here, unemployment
compensation to federal employees is paid by the State pursuant to
Federal-state agreement, "compensation will be paid by the State to a
Federal employee in the same amount, on the same terms, and subject to the
same conditions as the compensation which would be payable to him under the
unemployment compensation law of the State if his federal service and Federal
wages assigned under section 8504 of this title to the State had been included
as employment and wages under that State law."(emphasis added.) Thus,
except for the finality of specified federal findings enumerated in U.S. Code,
tit. 5 §8506, including "reasons for termination of Federal service,"
state law and administrative policy prevail in determining questions of a
federal employee’s entitlement to unemployment compensation benefits.
A federal employee who
cooperates with his employer’s goal of reducing the work force by retiring
early in exchange for accelerated retirement benefits should be entitled to the
same unemployment benefits and be subject to the same conditions imposed by the
Unemployment Compensation Law as would a state or private employee who retires
under similar circumstances. This, in our view, is the effect of the federal
statute (5 U.S.C. §8502 [b] supra). Its apparent aim of consistency of
application of state unemployment insurance law as between federal and other
employees should not be altered by a label placed on this type of retirement by
the federal employer.
Our conclusion that the
Board is, therefore, not bound for unemployment insurance purposes by the
agency’s characterization of these resignations as "voluntary" or
"involuntary" is buttressed by the Manpower Administrator of the
United States Department of Labor itself. In "Unemployment Insurance Program
Letter" Number 1094 dated December 21, 1970, addressed to all state
employment security agencies, he states that "we will not question the
propriety of a State’s determination action respecting a "Resignation –
RIF[reduction in force) Situation decision if it is in accord with action
normally taken in State UI (unemployment insurance) cases." In a similar
letter, Number 1214 of December 4, 1972, he further explains that, in the case
of a resignation in a reduction in force situation, the federal agency’s
description of the separation from employment as "involuntary" is not
necessarily binding upon the state under U.S. Code, tit. 5, §8506 (a), supra,
since the particular employee might have been able to continue in employment.
In the case before us, the
"reason" for claimant’s termination from federal service is that he
retired. It is clear he did so in response to his employer’s request for a
reduction in work force accompanied by an offer of early retirement benefits.
Whether he retired "voluntarily" or "involuntarily" or with
or without "good cause" were questions for the Appeal Board to decide
according to the circumstances of the particular case. We emphasize that this
is not a case of mandatory retirement for age, disability, discontinued service
or other reason compelling a conclusion of involuntariness. Nor is this the
case of an employee who would forever have lost the offered increase in
retirement benefits or whose benefits would have been reduced by continuing to
work.
Here, as the Board found,
the claimant could have earned the offered 4.8% annuity increase by working an
additional nine months. He would not have given up this benefit by continuing
to work. His decision to retire early, then, was not the consequence of a
Hobson’s choice between an annuity increase or no increase at all. As a
consequence, the Appeal Board’s determination that he retired for
non-compelling reasons, voluntarily and without good cause within the meaning
of the Labor Law, was rational and should not be disturbed.
We hold, therefore, that
the Appellate Division exceeded its power in reversing the Appeal Board and
substituting its own judgment regarding appropriate policy to be adopted in the
administration of the Unemployment Insurance Law and in the distribution of its
funds in this case (see, Labor Law §550, subd. 3). Those in whom the
responsibility for administration of the System is lodged cannot be said to
have acted irrationally in denying the payment of benefits to a claimant who
could have continued to work but chose not to do so in the exercise of his own
rational even well-motivated, personal purposes.
Accordingly, we reverse the
order of the Appellate Division and reinstate the decision of the Appeal Board
conditionally disqualifying claimant from receiving benefits because he
voluntarily left his employment without good cause. (February 27, 1975)
COMMENTS
- This decision upholds the Appeal Board’s finding that
claimant’s affirmative response to his employer’s memorandum to all
eligible employees urging them to consider early retirement, in order to
obtain the increased annuity offered to those who cooperated in this
manner with the employer’s program for effecting a reduction-in-force,
constituted a voluntary leaving without good cause. Although claimant was
a postal employee, the principle applies also to employment in the private
sector.
- The Board (and the Court) noted that claimant could
have recouped the 4.8% increase in retirement annuity by working an
additional nine months. In this connection, the principle has been
established that a claimant who exercises an option to retire before a
given date so as to receive a substantial increase in his retirement
annuity 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. (See Index 1690-5; A-750-1654).
Index No. 1320 C-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 20, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
Unemployment due to
APPELLATE DIVISION DECISION
Matter of Francis P. Crerand, et al
LONGSHOREMEN WHO SHAPE UP AT HIRING
HALL
Longshoremen who obtained
work by "shaping up" at a hiring hall were employed on a daily basis
only. Since they had not been "pre-ordered" to continue to work on
the job site for the day when a strike by their union commenced, they were not
employed on that day, their unemployment was not caused by the strike, and thus
they were not subject to suspension of benefit rights for industrial
controversy.
DECISION
Appeals from decisions of
the Unemployment Insurance Appeal Board, filed December 30, 1971 and March 20,
1972, which determined that claimants were entitled to unemployment insurance
benefits.
Claimants, longshoremen and
members of the International Longshoremen’s Association, had worked regularly
for an employer at one of the New York City waterfront piers until October 25,
1968 when the pier was closed. Thereafter, through December 20 claimants sought
work by "shaping-up" at a hiring hall and each obtained some work
during that period of time. Although a strike by the I.L.A. had been called for
October 1, 1968, an 80-day injunction was obtained and the longshoremen went
back to work on October 3, continuing to operate until the evening of December
20, at which time a strike occurred. From December 21, 1968 to February 6, 1969
each of the claimants was unable to obtain any employment. The Board determined
that since none of the claimants had been "pre-ordered" to work after
December 20, 1968, they were not employed when the strike commenced and, consequently,
their unemployment was not caused by the strike. They were thus not subject to
the seven-week suspension period pursuant to subdivision 1 of section 592 of
the Labor Law.
The hiring practices of
longshoremen are unique. [See Matter of Lessner (United States Lines
Co. – Catherwood), 36 AD 2d 1, 3-4.] Once their pier was closed,
claimants were required to go to the hiring hall to find work. If, after being
selected by an employer from a "shape-up" at the hall, claimants were
to continue on the job site, their names had to be posted at the particular
pier involved prior to the close of each working day and also recorded through
the hiring agents at the hall. They were employed on a daily basis only and
none had been pre-ordered to work for the day the strike commenced. In effect,
they had a mere expectancy of employment if the "shape-up" had not
been prevented by the strike. [Matter of Burger (Corsi), 277 App.
Div. 234, 237, affd. 303 N.Y. 654.) We find no indication in the record that
the New York Shipping Association was the employer of claimants even though
several fringe benefits from a collective bargaining contract between the
I.L.A. and the Association were derived by claimants. On the present record
there is substantial evidence to support the Board’s determination that
claimants were not, in fact, employed when the strike occurred and that the
cause of their unemployment was not the industrial controversy.
Decisions affirmed, without
costs. (November 7, 1974).
COMMENTS
- In Matter of Lessner, cited in this decision
and noted at Index 1315-11, longshoremen were held to have lost their
employment due to an industrial controversy in the establishment when a
strike occurred against their employer at the pier where they had been
regularly employed.
Index No. 1115-2
1185-12
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 31, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Accidents and damage
Violation of company rules
Appeal Board Decisions 195,280; 195,383; 195,514
FAILURE TO FOLLOW PROCEDURE
Deliberate failure to
follow employer’s reasonable procedures, set up to maximize efficiency and
minimize accidents, waste or defective product, is misconduct.
A.B. 195,280
Referee Decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective
February 2, 1974, because he voluntarily left his employment without good cause
by provoking his discharge, is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: The claimant was employed as a
fuel-oil deliveryman for about four months. On February 1, 1974 he was told to
deliver 1500 gallons of oil to a customer. While the oil was being pumped from
claimant’s truck into the customer’s storage tank, and after more than half of
the load had been pumped, claimant left the truck unattended. During his
absence the tank was filled and the oil spilled over into the street because
claimant was not there to shut off the pump on the truck. The fire department
had to be called to clean the oil from the street. Claimant knew that he was to
stay near his truck at all times while oil was being pumped from his truck.
Claimant was discharged because of this incident.
Opinion: The credible evidence establishes
that the claimant knew that he was to stay near the stuck at all times while
oil was being pumped from it and that there was a considerable spillage and
loss of oil when he left his truck unattended. Under the circumstances, we
conclude that claimant deliberately acted in contravention of the employer’s
interest and that he lost his employment due to misconduct in connection
therewith.
Decision: The initial determination of the
local office is modified to disqualify claimant from receiving benefits because
he lost his employment through misconduct in connection therewith.
The decision of the referee
is reversed. (August 12, 1974)
A.B. 195,383
Referee Decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective
February 3, 1974 because he voluntarily left his employment without good cause
by provoking his discharge, is overruled.
Appealed By: Employer
Findings of Fact: The claimant, a cook, worked for
an institutional catering concern at a military academy from June 15, 1973
through February 5, 1974. He had previously worked at the same job for about
nine years when the military academy operated its own kitchen. Shortly after
the employer herein took over the full purveying operation at this particular
location the claimant was instructed in the employer’s uniform methods of food
preparation designed to maximize the worker’s efficiency and to minimize waste.
He was specifically told that scrambled eggs were to be prepared in a steam
jacket rather than on the grill. He had in the past prepared such eggs on a
grill and he continued to do so. After his supervisors reminded him of the
required standard company procedures relative to the preparation of scrambled
eggs, he complied with such procedures for about a month. He then reverted to
his former method of preparing scrambled eggs on the grill and continued to do
so despite two further admonitions that he was expected to follow the company
procedures by preparing scrambled eggs in a steam jacket. He was discharged on
February 5, 1974 for failing to comply with company procedures.
Opinion: The credible evidence establishes
that the claimant was repeatedly instructed in the required company procedures
for the preparation of food. He persisted in using his own methods which were
contrary to the company procedures, and even after the required standard
company procedures were reiterated to him, he persisted in performing his work
in his own fashion. The employer'’ procedures were reasonable and it had a
right to expect compliance therewith from the claimant. Under the circumstances
we conclude that the claimant’s continued violations of those known and
reasonable procedures constituted misconduct in connection with his employment
as a result of which he lost such employment.
Decision: The initial determination of the
local office is modified to disqualify the claimant from receiving benefits
effective February 3, 1974 because he lost his employment through misconduct in
connection therewith.
The decision of the referee
is reversed. (August 8, 1974)
A.B. 195,514
Referee Decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective
February 2, 1974, because he voluntarily left his employment without good cause
by provoking his discharge, is overruled.
Appealed By: Industrial
Commissioner and employer.
Findings of Fact: Claimant, a bake and press
operator was employed by a manufacturer of electrical equipment for 22 years
until March 2, 1974. He had been instructed and warned that the process
requirement for welding units on his job was to mask them with foil so that
welding splash would not go into the units and later cause short circuits. On
his last day of employment, claimant was welding units to be used in
capacitors. He was required to place a foil mask over the units when welding,
so as to prevent weld slash. Approximately one and a half-hours prior to the
incident in question, he was observed not using the proper masking and was
reminded that everything had to be masked. Thereafter, while welding another
unit of 25 parts, he noticed that three of the parts were not welded after he
had taken off the masking. He then proceeded to weld them without again masking
the units. The unit manager had observed claimant and suspended him pending
discharge for again failing to follow instructions about masking prior to
welding. Claimant was given the choice of either resigning or being discharged.
He resigned. His union which was in contractual relationship with the employer
did not file a grievance on his behalf.
Opinion: The credible evidence establishes
that claimant had been instructed to mask the work he was required to work on.
The procedure required was to prevent damage to electrical units and loss to
the employer by the welding splash, which could cause short circuits in the
units being welded. His attention had been specifically drawn to this
requirement of masking units to be welded only an hour and a half prior to the
incident in question. His action was a deliberate act, violating the employer’s
rules to the employer’s detriment by producing defective products. Under the
circumstances, he lost his employment through misconduct in connection
therewith. (Matter of James, N.Y. 2d, modifying 40 AD 2d 949, affg,
Appeal Board 169,366.)
Decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective
February 2, 1974, because he voluntarily left his employment without good cause
by provoking his discharge, is modified to disqualify the claimant from
receiving benefits effective March 3, 1974, because he lost his employment
through misconduct in connection therewith, and as so modified, is sustained.
The decision of the referee
is reversed. (September 6, 1974)
Index No. 1150-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 3, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Insubordination
Appeal Board Decision 199,010
REFUSAL TO WORK ON WEEKEND
Refusal without compelling
reason to work on one weekend, for which claimant would be compensated, is
insubordination constituting misconduct, even though claimant did not normally
work weekends.
Referee Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective June 4,
1974, because she voluntarily left her employment without good cause by
provoking her discharge, is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: The claimant, a computer operator,
last worked for the employer in New York City on June 3, 1974. On that date,
claimant’s immediate supervisor requested that she make herself available to do
inventory work on the weekend of June 29 – June 30, 1974. Claimant stated that
this would not be possible as she had already made plans to visit her sister in
Lake George that weekend. The employer’s vice-president was informed of
claimant’s decision and he requested that claimant report to his office. When
she did so, he repeated the request previously made by the supervisor. Claimant
again refused to accede to such request. Later in the day, the vice-president
again asked claimant if she would reconsider the matter. Claimant stated that
she would not and she was then discharged. Admittedly, claimant could have
postponed her travel plans for some other weekend. There would have been no
financial loss to claimant if she had done so. The claimant would have been
compensated for work to be done on the weekend of June 29 – June 30, 1974. She did
not object to the inventory work.
Opinion: The credible evidence establishes
that claimant refused to comply with a reasonable request of the employer; that
she was given approximately four weeks’ advance notice that she was to work on
the weekend in question; that a trip that she had planned could have been
postponed with no financial hardship to herself; and that she would have been
compensated for work.
Accordingly, we conclude
that claimant’s refusal to comply with the reasonable request of her employer
was insubordination which constitutes misconduct within the meaning of the Law
and that the claimant lost her employment in connection therewith.
Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective June 4,
1974, because she voluntarily left her employment without good cause by
provoking her discharge is modified to disqualify her because she lost her
employment through misconduct in connection therewith and, as so modified, is
sustained.
The decision of the referee
is reversed. (November 7, 1974)
Index No. 1160-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 7, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Insubordination
Appeal Board Decision 196,420
INVITING EMPLOYER TO DISCHARGE
When a claimant responds to
a reprimand by inviting the employer to discharge him, such response is
insubordination constituting misconduct.
Referee Decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective
January 30, 1974, because she voluntarily left her employment without good
cause by provoking her discharge, is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a compositor, worked for
the employer for three and a half years through January 29,1974. Although the
hours of employment were from 8:30 A.M. to 4:45 P.M., the employees were
permitted to punch out at 4:42 P.M. On January 29, 1974, claimant was observed
standing at the rear of the work room wearing her coat before 4:42 P.M. When
she reached the front of the work room, the employer asked her why she had her
coat on. Claimant replied that it was time to leave work. When she was reminded
that quitting time was actually 4:45 P.M., claimant said, "If you don’t
like it, you can fire me". She was thereupon discharged.
Opinion: The credible evidence establishes
that claimant’s response to the employer’s statement that she was leaving her
work too early was unwarranted and insubordinate and constitutes misconduct in
connection with her employment. Accordingly, we conclude that she lost her
employment through misconduct in connection therewith.
The decision of the referee
is reversed. (September 17, 1974).
Index No. 1190-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 10, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Other Offenses
Appeal Board Decision 195,159
PROFANITY TO SUBORDINATE
Use of profanity by a
supervisor in reprimanding a subordinate, in direct violation of a warning by
management to desist from such practice, is misconduct. (Claimant was an
assistant food service director in a medical center.)
Referee Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective September
17, 1973 because he voluntarily left his employment without good cause by
provoking his discharge, is overruled.
Appealed By: Employer
Findings of Fact: Claimant, an assistant food
service director was employed at a medical center for over two years through
September 19, 1973. He was in the habit of using profane language. In April
1973 his resignation had been requested because of his use of improper language
and he was retained only because he promised that he would abstain from further
use of such language. However, he did not do so. During the latter part of
August 1973 he reprimanded a subordinate during which he again used profane
language. As a result he was discharged.
Opinion: The credible evidence establishes
that claimant acted in a manner that was not in the best interests of the
employer. He had been warned about his use of profanity, having come close to
be discharged earlier in the year for that reason. His subsequent use of such
language was in direct violation of this prior warning to desist therefrom.
Accordingly, it is concluded that he committed misconduct in connection with
his employment and was discharged for that reason.
Decision: The initial determination of the
local office disqualifying the claimant from receiving benefits, effective
September 17, 1973, because he voluntarily left his employment without good
cause, is modified to be effective September 20, 1973, on the ground that he
lost his employment through misconduct in connection therewith, and as so
modified, is sustained.
The decision of the referee
is reversed. (August 9, 1974)
Index No. 1310-17
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 14, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
Definition
Appeal Board Decision 203,739
DISCONTINUANCE OF BUSINESS
When an employer ceased
operations, immediately began winding up its affairs, and went out of business
for economic reasons, after its employees and their union refused to waive
contractual pay increases, the loss of employment was not due to an industrial
controversy, and no suspension applied.
Referee Decision: The revised initial determinations
of the local office suspending the accumulation of benefit rights by all of the
claimants effective July 31 through September 17, 1974 on the grounds that they
lost their employment because of an industrial controversy in the establishment
in which they were employed and charging the claimant, J.G., with an
overpayment of $225 in benefits ruled to be recoverable, is sustained.
Appealed By: Claimants
Findings of Fact: The claimants, knitters, machine
handlers and mechanics, were employed by a knitting mill for various periods
through July 27, 1974. The employer operated as a contractor, knitting cloth
for its customers from yarns supplied by the customers. All of the claimants
were members of a union in contractual relations with the employer. Under the
collective bargaining agreement, effective July 29, 1974, the wages of knitters
and mechanics were to be raised by $7.00 a week and those of all other
employees were to be raised by $5.25 a week.
On July 12 the employer notified
the union that it could not afford to pay the contractual increases and
threatened to close if the union called a strike or slowdown. The union made no
response. On July 29 when they reported to work, the claimants were told that
there would be no work unless they signed, in contravention of the contract,
waivers of the contractual increases. None signed the form and the union
rejected the employer’s proposal. The employer immediately began winding up its
affairs. In the next few weeks, it notified its customers, completed some jobs,
refused new work, returned materials to customers and disposed of machinery.
About August 18 the employer notified the union that it was out of business. It
so advised the Internal Revenue Service on October 1, 1974. At no time after
July 12 did the union call or threaten to call a strike. There were no
negotiations to persuade the employer to continue in business.
When the claimant, J.G.,
filed his additional claim for benefits on July 31, 1974, he gave as the reason
for leaving his job: "lay-off no work." Thereafter he received $225
in benefits.
Opinion: We disagree with the referee’s
conclusion that the claimants lost their employment as the result of a strike,
lockout or other industrial controversy. The credible evidence showed that the
employer determined to go out of business for economic reasons if its employees
and the union did not acquiesce in waiving the contractual pay increases and
that it carried out its intention when its proposal was rejected. The refusal
of the employees and the union to waive the employer’s compliance with the
contract was not a strike. No was the union’s acceptance of the company’s decision
to close. The employer’s going out of business did not constitute a lockout. A
lockout has been defined as "a temporary withholding or shutting down of
work by an employer, in protest against employee actions to coerce them into
accepting his terms" (Peterson, American Labor Unions, p. 260, cited in a
referee’s decision in a prior case quoted in Appeal Board 72,544). There was
nothing temporary about the employer’s cessation of business. The employer’s
closing was not "other industrial controversy" (Matter of Cohen,
283 App. Div. 143) but a business decision, predicated on its prospective
inability to operate profitably.
We conclude that the
claimants did not lose their employment due to a strike, lockout or other
industrial controversy and that none is subject to the statutory suspension of
benefits. Our conclusion is not affected by the employer’s action in winding up
its business that necessarily took time. None of the employer’s actions was
indicative of an intent to continue business.
In view of the foregoing,
the claimant, J.G., was entitled to the benefits he received and his statement
was not false. He was not overpaid.
Decision: The revised initial determinations
of the local office suspending the accumulation of benefit rights by all of the
claimants effective July 31 through September 17, 1974 on the ground that they
lost their employment because of an industrial controversy in the establishment
in which they were employed and charging the claimant, J.G., with an
overpayment of $225 in benefits ruled to be recoverable are overruled.
The decision of the
referee, insofar as appealed from, is reversed. (March 5, 1975)
COMMENTS
In this decision the Appeal
Board noted that the employer’s going out of business did not constitute a
lockout or other industrial controversy, but a business decision, predicated on
its prospective inability to operate profitably. It also said that neither the
refusal of the employees and the union to waive the employer’s compliance with
the contract, nor the union’s acceptance of the company’s decision to close,
constituted a strike.
Index No. 920 A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 9, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Employees of Educational Institutions
Appellate Division Decisions
Matter of Reba Nierenberg
Matter of Harriet Sherwin
NURSERY SCHOOLS AND KINDERGARTENS
A nursery school or
kindergarten is an educational institution within the meaning of Section
590.10.
Matter of Nierenberg
Appeal from a decision of
the Unemployment Insurance Appeal Board, filed November 21, 1973, which held
claimants eligible for benefits, reversed the decision of a Referee, and
overruled determinations of the Industrial Commissioner that claimants were
ineligible for benefits pursuant to subdivision 10 of Section 590 of the Labor
Law.
Claimants were employed as
teachers for the 1971-72 school year in a nursery school operated by a
religious congregation as they had been similarly employed for 12 prior years.
Claimants are all New York State licensed teachers. At the end of the 1971-72
school year they had verbal contracts to return to their employment for the
1972-73 school year for the same employer and, in fact, did so. Although the
nursery school was operated by a religious congregation, the school itself was
non-sectarian. No formal subjects were taught to the children. The school was
not part of a coordinated educational system and there was no automatic
progression of nursery school children into a graded school.
The record indicates that
the employer, S. ________, is a non-profit organization as defined by
subdivision 1 of Section 563 of the Labor Law. The Board held that claimants
were eligible for benefits under the terms of subdivision 10 of Section 590 of
the Labor Law which provides that teachers in institutions of education may not
receive benefits for the period between two successive years based on such
employment. The decision was based on the board’s conclusion that nursery
school provides "no more than a baby-sitting service" and are not
institutions of education.
The issue in the instant
case is whether a nursery school is an educational institution within the
meaning of the section. The Board found that subdivision 10 of Section 590 of
the Labor Law is not applicable to the claimants herein because they were not
employed in an "institution of education" and, therefore, they were
entitled to receive benefits based upon full credit for all their weeks of base
period employment, without any portion being disregarded. With this determination
this court cannot agree. We have previously considered the question in Matter
of Klein (Levine) (42 A.D. 2d 640) and there determined that a nursery
school teacher was ineligible for benefits between academic years.
Decision reversed, without
costs, and matter remitted to the board for further proceedings not
inconsistent herewith. (May 15, 1975)
Matter of Sherwin
Appeal from a decision of
the Unemployment Insurance Appeal Board, filed March 18, 1974.
The sole issue raised on
this appeal is whether or not a nursery school is an "institution of
education" within the meaning of subdivision 10 of Section 590 of the
Labor Law. In Matter of Ni(e)renberg (Levine) (___AD 2d___) [decided
herewith]; see also Matter of Klein [Levine], 42 AD 2d 640), we
held that a nursery school is an institution of education.
Decision reversed, without
costs, and matter remitted for further proceedings not inconsistent herewith.
(May 15, 1975)
COMMENTS
- In the "Nierenberg" decision the court noted
that claimant had been employed by a non-profit organization as defined by
Section 563.1 of the Unemployment Insurance Law. Subdivision 2 of that
Section excludes from coverage the services rendered for a non-profit
organization by "a person engaged in a teaching or other professional
capacity at an educational institution which is not an institution of
higher education." Thus, the claimant’s employment was excluded from
unemployment insurance coverage, although the court did not decide the
case on that issue. As a practical matter, when dealing with claims which
may fall within the ambit of both Section 563.2 and 590.10, the local
office should first resolve the question of coverage under Section 563.2.
- Claimant Sherwin was employed in her base period as a
teacher in the kindergarten of a private school operated for three, four
and five-year-olds; no classes above the kindergarten level were taught at
the school; and upon completing the program pupils went to the first grade
elsewhere.
- Matter of Klein, cited in both decisions,
concerned a nursery school teacher who was held subject to Section 590.10
when she filed for benefits between school years. The court in that case
found that although claimant’s contract was an oral one, there was no
evidence that she would have been required to perform services more than
one year after the date of the oral agreement. Otherwise, said the court,
the contract would have been unenforceable and Section 590.10 would not
apply. In the instant cases the court addressed itself solely to the
question of whether a nursery school was an "institution of
education" within the meaning of Section 590.10, thus leaving it to
the Appeal Board to resolve any other issues, including that of claimants’
oral contracts.
Index No. 1155-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 11, 1975
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Insubordination
Appeal Board Decision 206,335
REFUSAL TO WORK OVERTIME
Refusal to work overtime is
not misconduct if it was agreed at time of hire that claimant would not be
required to work overtime.
Referee Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective November
16, 1974 because she lost her employment due to misconduct in connection
therewith, is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, a billing machine
operator, worked for a manufacturer of precious metals and dental supplies from
April to November 15, 1974, when she was discharged. Her hours of work were
8:45 to 4:45 p.m. When claimant was hired, she informed the employer that she
would not work overtime. The employer accepted this arrangement. During the
course of her employment, she refused many requests by the employer that she
work overtime. Claimant was discharged because of her refusals to work
overtime.
Opinion: The credible evidence establishes
that the claimant informed the employer, when she accepted this job, that she
would not work overtime and that the employer accepted this arrangement. This
was a condition of her employment. Accordingly, claimant’s refusals to work
overtime cannot be considered misconduct and her discharge for such refusals
was not disqualifying (See A.B. 195,347).
With respect to the
employer’s contention that it discharged claimant also because she had a poor
attendance record, we are not satisfied that such record brought about her
discharge. Significantly, the number of her latenesses and absences, which were
due to illness, was limited, and the employer did not warn claimant with
respect thereto. We believe that claimant was discharged only because she would
not work overtime. Since the employer had agreed, at the time of hire, that she
would not be required to work overtime, claimant was not bound to comply with
the employer’s requests that she do so.
Decision: The initial determination of the
local office is overruled.
The decision of the referee
is reversed. (May 8, 1975)
COMMENTS
In A.B. 195,347 cited
above, the Appeal Board overruled a disqualification when a claimant was
terminated for refusing transfer to the day shift because of conflict with his
hours of college attendance. The Board found that at time of hire claimant had
informed the employer of his desire to work evenings because of such schooling
and "the employer accepted this arrangement." The Board also noted
that claimant "would possibly lose his tuition payments" if he
dropped his schooling to accept the transfer.
Index 1150A-7
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division Adjudication Services Office
June 18, 1975
Interpretation Service - Benefit Claims
MISCONDUCT Falsification of employment application
Appeal Board Decision 204,070
CONCEALMENT OF PRIOR EMPLOYMENT
Deliberate omission of a
prior employer from an employment application may be misconduct.
Referee decision: The initial determination of the
local office disqualifying the claimant from receiving benefits effective
October 1, 1974, because he lost his employment through misconduct in
connection therewith, is overruled.
Appealed by: Employer
Findings of Fact: Claimant was employed as a senior
buyer in a hospital on August 29, 1973. After he was discharged on May 31,
1974, he filed a grievance as a result of which he was reinstated on September
9, 1974. In attempting to catch up on his paper work, claimant took home
hospital purchase record cards. Although this was common practice among
hospital employees, claimant was unaware that to do so was against hospital
policy. When the employer discovered that its records had been removed and
ordered claimant to bring them back to the office, claimant complied. On
Friday, September 27, 1974, the employer received information that the claimant
had omitted from his employment application in 1973, at the time of original
hire, and in 1974, when he was reinstated, any indication that in 1968 he had
worked at a Florida hospital. The employment applications which claimant signed
included a statement that he knew that giving false information could lead to
his dismissal. On Monday, September 30, 1974, the employer discharged claimant
because he had falsified his employment applications and also for the removal
of hospital records without permission. The claimant admitted that he did not
disclose his employment at the Florida hospital because he was afraid of
getting a bad recommendation.
Opinion: The credible evidence now before
the Board establishes that the claimant deliberately omitted material
information regarding his prior employment from his employment applications,
despite the fact that he was aware that the giving of false information could
lead to his discharge. While he may have considered it wise to omit such vital
information, nevertheless, by so doing he is chargeable with misconduct in
connection with his employment.
In view thereof, we need
not consider the question of whether or not claimant's removal of the hospital
records from the office also constituted an act of misconduct in connection
with his employment.
Decision: The initial determination of the
local office is sustained.
The decision of the referee
is reversed. (May 28, 1975)
Index 1315-16
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division Adjudication Services Office
June 25, 1975
Interpretation Service -Benefit Claims INDUSTRIAL
CONTROVERSY Establishment, definition
Appellate Division Decision
Matter of Patricia DiLella
OUTSIDE SALESPEOPLE
Outside salespeople who
reported orders by telephone, occasionally visited their employer's premises,
and were under the direction of sales managers based there, were held to be
employed in the same "establishment" as the employer's clerks,
warehousemen and drivers who worked in or operated from those premises.
DECISION
This is an appeal from a
decision of the Unemployment Insurance Appeal Board, filed January 29, 1974,
which held that claimants were not entitled to unemployment insurance benefits.
This appeal involves
claimants who were employed as "outside" liquor and wine salesmen by
wholesale distributors in New York City and the metropolitan area each employer
maintained one place of business with executive and clerical offices and where
all merchandise received from suppliers was stored, orders reported, processed,
packaged and, in turn, delivered therefrom by trucks operating from the same
location. A strike against these employers by drivers and helpers of Local 816
of the Teamsters Union and clerks and warehousemen of Local 1 of the Distillery
workers Union was called at the expiration of their collective bargaining
contracts, effective November 1, 1972, and resulted in claimants' loss of
employment. Picket lines were placed around the premises of each employer and
no merchandise could thereafter be received, stored, orders taken therefor or
delivered for the duration of the strike which was settled on December 13,
1972.
Claimants were members of
Local 2 of the Liquor Salesmen's Union and Local 18 of the Wine Salesmen's
Union, working under contracts with later terminal dates. They did not strike.
In anticipation of the strike, each employer sent telegrams to its salesmen,
including claimants, to the effect that operations would have to cease if the
strike occurred and if it did materialize an November 1, 1972, they were not to
report for work or call on trade. The board found that claimants were also
notified that their unions had decided to honor the picket lines of other
unions and that they should not attempt to work. It determined that claimants
lost their employment because of an industrial controversy in the establishment
of the respective employer in which they were employed and suspended their
benefit rights for seven weeks, effective November 2,1972.
The sole issue presented on
this appeal is whether there was substantial evidence to support the board's
decision that claimants were employed in the same establishment as the striking
union employees. Claimants contend that since they worked in the field
soliciting orders, using their homes as a base for all office records,
correspondence and calls, and performed no work at the employer's place of
business, they were not employed in the same establishment as the striking
employees and were, thus, entitled to unemployment insurance benefits. They
rely on Matter of Ferrara (Catherwood) (10 NY 2d 1) and Matter
of Sierant (Catherwood) (24NY 2d 675). We do not agree. The Ferrara
and Sierant cases are clearly distinguishable. The term
"establishment", as used in the statute providing for suspension of
benefits to employees who lose their employment because of a strike (Labor Law,
592, subd [l]), was defined in those cases as applying to the immediate
geographic situs of the striking employees, rather than to the corporate
enterprise. In both Ferrara and Sierant the determination of the
Appeal Board that the strikers and claimants were employed in separate
establishments was upheld. The court emphasized, however, that an appellate
court must confirm the determination of the Appeal Board if it is supported by
substantial evidence.
The record in the instant
case reveals that all orders solicited by claimants were either phoned in by
claimants or brought to the employer's place of business by them personally,
where they were processed and shipped out. The sales managers and supervisors
under whose direction claimants operated were based at the employer's premises.
Weekly draws and commission statements were prepared there and either mailed or
handed to claimants. There is testimony in the record that some of claimants'
customers, on occasion, would "call in" orders for merchandise
directly to the office order board for which claimants received full
commissions. Although sales meetings were sometimes held on the premises and
sometimes at a hotel or motel, sales managers directed all such meetings and
handed out sales materials to claimants thereat. Under such circumstances, we
conclude that there was ample evidence before the board to justify its
conclusion that claimants were employed at the same establishment as the
striking union employees and its determination, therefore, must be upheld.
The decision should be
affirmed, without costs. (May 22, 1975)