A-750-603
Index No. 1250C-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 14, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Domestic and Personal Reasons

Appeal Board Case No. 11,483-44

REFUSAL OF REFERRAL TO EMPLOYMENT – PERSONAL REASONS – INCONVENIENCE OF EARLY STARTING HOUR (SECTION 593 OF LABOR LAW)

Refusal of employment which required thirty minutes traveling time from claimant’s home and which was one of several offers during about seven weeks of unemployment solely because the starting hour was 8 a.m. was held to be without good cause.

Findings of Fact: A hearing was held at which claimant and representative of the Industrial Commissioner and of the United States Employment Service appeared and testified. Claimant, a secretary-stenographer, filed an original claim for benefits on September 11, 1944, and is currently reporting. On October 24, 1944, claimant was offered a referral to employment with J.D. Banks Company, 80 Broad Street, New York City, as a stenographer, at $40 for a five-day week, hours 8 a.m. to 4:30 p.m. Claimant refused the referral because of the early starting hour. On October 31, 1944, the claimant was offered a job as a stenographer with the United Jewish Appeal, 250 West 57th Street, at $137 monthly for a five-day week. Claimant refused this job because of the salary. Upon the basis of the information received from the placement section and from the claimant, the local office on November 9, 1944, issued an initial determination with effective dates of October 24 and October 31, 1944, disqualifying claimant from receiving benefits on the ground that she refused employment without good cause. Claimant objected thereto and requested a hearing. Claimant was last employed on July 28, 1944. This employment extended for four months, at $35 weekly. Prior to that and up to the end of January 1944, claimant worked for eight years with one firm, at a base salary of $22 weekly, plus payment under a bonus system which brought her salary to approximately $40 weekly. Claimant has no health condition or domestic circumstances which prevent her from working during any reasonable hours. Claimant has had at least eight referrals of employment from the United States Employment Service dating from September 11, 1944. Five of the prospective employers refused to hire claimant. One referral, on September 20, 1944, at $35 weekly, was refused by claimant because it involved employment in Brooklyn with attendant traveling difficulties. The other two referrals are the subject matter of this hearing. With the exception of the referral to the United Jewish Appeal, the salaries of all the other jobs were at least $35 weekly. Claimant has sought a minimum salary of $35 weekly. Claimant has made independent efforts to obtain employment, but has failed to secure offers of more than $25 weekly. In one instance she was offered $30 weekly by the employer for whom she worked four months up to July 28, 1944. The prevailing wage rate for the type of services claimant can perform during the period herein involved ranged from $30 to $35 weekly for a five-and-a-half day week. The traveling time from claimant’s home to the prospective employer at 80 Broad Street was approximately 30 minutes. It is claimant’s contention that to have been at work at 8 a.m. she would have been required to arise at 6 a.m., and that since she lives in an apartment not heated through a central hearing system, she would be subjected to physical discomfort. Claimant was still unemployed at the date of hearing.

Referee’s Opinion and Decision: On October 24, 1944, claimant was offered a position which met her salary requirements. She had no health or domestic reasons which prevented her from accepting a position at a starting hour of 8 a.m. The traveling time between the claimant’s home and the prospective employer’s place of business was approximately one-half hour. Considering claimant’s period of unemployment, the number of referrals which she had received from the placement section and upon which her services were declined by prospective employers, the failure of claimant’s efforts to secure employment at a salary of more than $25 weekly, and the other facts herein, I hold that on October 24, 1944, claimant refused an offer of employment for which she is reasonably fitted by training and experience. Since claimant’s prior earnings were not less than $35 weekly, and since the United States Employment Service had on all prior occasions referred claimant to jobs which paid at least $35 a week, I hold that claimant was justified in refusing the job with the United Jewish Appeal on October 31, 1944. However, this becomes academic because of the disqualification made effective on the earlier date. The initial determination, as modified, is sustained, effective October 24, 1944. (12/9/44)

Appeal By: Claimant

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case.

Appeal Board Decision: The decision of the referee is affirmed. (1/15/45)




A-750-606
Index No. 1215A-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 14, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Other Reasons

Appeal Board Case No. 11,245-44

REFUSAL OF REFERRAL – CLERICAL TEST (SECTION 593 OF THE LABOR LAW)

Claimant’s refusal of referral to the U.S. Civil Service Commission for the purpose of taking a clerical test, which was a prerequisite to certification for employment, was tantamount to a refusal of referral to employment and was held to be without good cause.

Findings of Fact: Hearings were held herein at which claimant and representatives of the Industrial Commissioner and the United states Employment service appeared and testified. Claimant filed an original claim for benefits on June 5, 1944, and is reporting currently. On July 10, an initial determination was issued, disqualifying claimant from receiving benefits effective June 22, because he refused employment without good cause. Claimant objected and requested a hearing. Claimant was an actor for about 35 years. He has been out of the field for the last six years. In the early part of 1943, he worked on a war job for about four months. Later that year he got a job as an assistant manager in a theater. He worked there about nine or ten weeks and earned $40 a week. His last job was as a receptionist in an attorney’s office, where he earned $30 a week. He worked there seven months to April 28, 1944. On June 22, 1944, while claimant was in the United States Employment Service Office he was told about an opening for a receptionist in that office. He was referred to the manager of the placement office and was interviewed. Claimant was told that he must take a routine clerical test given by the United States Civil Service Commission, before he could be certified for the job. Claimant refused to go down to the United States Civil Service Commission for this test, saying that there was too much red tape there. After the termination of the interview, the manager called the interviewer who had referred claimant to her, and advised that claimant had refused to go down to the Civil Service Commission for a test. When claimant was interviewed at the local office, he stated that the United States Employment Service manager had told him that he had referred two men to the Civil Service Commission and was waiting to hear from them before she would refer claimant. He claimed that he had not been asked to go to the Civil Service Commission. At the hearing, the United States Employment Service manager testified that she had emphasized in the interview that it was necessary to take the civil service test before the applicant could be certified, and claimant had told her that he did not want to take the test. If claimant had been willing to take the test, the usual procedure would have been to send him to the United States Employment Service office at 11 West 42nd Street, which would have attended to the necessary formalities and referred him to the Civil Service Commission for the test. On May 31, 1944, the United States Employment Service had previously referred claimant to the United States Civil Service Commission. Claimant went to the latter office and was told to return the following morning. He did so, and after waiting some time walked out without being interviewed. At the hearing, he claimed that he left there in order to go to a department store for an interview. He never returned to the Civil Service Commission and never filed an application there, because he felt he would not qualify since he had not been graduated from grammar school. Claimant was referred to another job by the United States Employment Service on June 21. He was not hired after the employer interviewed him. Claimant has been trying to get back into the entertainment field. He was offered $100 a week by the U.S.O. some time ago, but did not get that job. He is still trying to get back into the theatrical business and has several prospects.

Referee’s Opinion and Decision: Claimant was interviewed with reference to a position as receptionist in the United States Employment Service. He was not considered for this job because he told the interviewer that he would not go to the United States Civil Service Commission for the necessary clerical test. This routine test is a prerequisite to certification. Claimant’s refusal to take the required examination is tantamount to a refusal to accept a referral to employment. Claimant contends that he was not told to go to the United States Civil Service Commission for the test. He claims that he was merely told that he would be considered only in the event that two prior applicants did not get the job. However, the manager at the United States Employment Service who interviewed the claimant testified at the hearing that she emphasized the necessity of taking the test in order to be certified, and claimant told her that he would not go down to the Civil Service Commission to take the test. The manager repeated the substance of the interview soon thereafter in a telephone conversation with the interviewer who had referred claimant to her. From all the credible evidence and the testimony in this case, I find that the facts were as testified to by the manager of the United States Employment service. If claimant had not refused to go to the Civil Service Commission, he would have been sent to another office of the United States Employment Service to complete the necessary formalities in order to take the examination. This step was not taken. The United States Employment service manager’s testimony, that claimant had refused to go to the United States Civil Service Commission, is further corroborated by the fact that claimant had failed to file an application with the Civil Service Commission on a prior occasion. He had been referred there on May 31. While he reported there, he did not wait for the interview. He never returned and has no application on file there. In view of all the facts and circumstances in this case, it is held that claimant failed to accept the referral to the position as receptionist which was offered to him on June 22. The initial determination is sustained. (8/28/44)

Appeal By: Claimant

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issues involved in this case.

Appeal Board Decision: The decision of the referee is affirmed. (1/15/45)




A-750-608
Index No. 1250C-10
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

April 14, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Work Week

Appeal Board Case No. 11,285-44

REFUSAL OF REFERRAL – DESIRE FOR FIVE DAY WORK WEEK (SECTION 593 OF LABOR LAW)

When the majority of available positions in claimant’s occupation required Saturday employment, a refusal of employment, because it necessitated Saturday employment, which was based entirely upon personal preference, was held to be without good cause.

Findings of Fact: Hearings were held at which there appeared the claimant and representative of the Industrial Commissioner and the United States Employment Service. Testimony was taken. Claimant, a teletype operator, filed an original claim for benefits on June 14, 1944 and reported to July 26. An initial determination was made on June 28, effective June 15, 1944, disqualifying the claimant from receiving benefits because she had refused employment without good cause. She objected thereto and requested a hearing. Claimant was last employed for a period of six and a half years by a large chain furniture store. For the past two years she worked as a tele-type operator. She worked only five days a week because it was convenient for both herself and her employer. She is 29 years old and is married. She was frequently absent from work because of her husband’s illness and she was given the choice to either accept a leave of absence from her position or to terminate her services. She chose the latter and her employment ended on May 23, 1944. Until she filed her original claim, claimant was not available for employment. As of July 26, 1944, claimant again became unavailable for employment. On June 15, 1944, claimant again became unavailable for employment. On June 15, 1944, the United States Employment Service made two offers of employment to the claimant to work as a tele-type operator. There was some question about the sequence in which the offers were made. However, one paid $25 a week, the same salary as the claimant had received in her former employment when her services terminated, for a five-and-a-half day week. The claimant rejected this offer because of the salary, although she indicated that she did not wish to be employed on Saturday. The other employment offered was at the rate of $30 a week with a firm engaged in war work. There is some question about the work-week. The claimant stated that she understood that she would be required to work five and a half-day a week, until noon each Saturday. The representative of the United States Employment Service stated that to her best recollection the claimant was told that there would be only occasional work on Saturday. In any event, the regular work-week was to consist of 40 hours. The claimant rejected this offer of employment because of the necessity to work Saturday and because there would be the added expense of double carfare, which was admitted. Claimant’s unwillingness to work on Saturday was based purely on personal convenience. The customary rate of pay for tele-type operators is $28 weekly, as testified to by the representative of the United States Employment Service. This is based upon the preponderance of jobs available with government agencies through the United States Civil Service Commission. However, this $28 level apparently has been accepted by the United States Employment Service as being the prevailing rate of pay for a base week consisting of 40 hours

Referee’s Opinion and Decision: It is evident from the testimony of the representative of the United States Employment Service that the rate of pay offered to the claimant in one of the offers made to her, namely, at a salary of $25 a week, was less than that which it considered to be the customary level of wages for the claimant’s occupation. It can thus not be regarded as a good offer of employment, even though the claimant received but $25 a week in her last position. But there is no doubt about the fitness of the salary offered to the claimant in the second employment under consideration. The $30 weekly rate is well above the customary rate of pay even after the extra carfare is taken into consideration. Claimant’s position with regard to the double carfare in this instance is not well taken. As for her refusal to work Saturday, and she made it very clear that at the time the job was offered she would not have accepted any employment entailing Saturday work, this is based entirely upon a personal preference on her part. In view of the testimony of the placement representatives that most jobs available for tele-type operators are with government agencies, entailing Saturday work, the claimant’s refusal to work Saturday must operate against her. I find, therefore, that when the claimant rejected the offer of employment paying $30 a week, she refused an offer of employment without good cause. The initial determination is sustained as modified. (9/14/44)

Appeal By: Claimant

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case.

Appeal Board Decision: The decision of the referee is affirmed. (1/15/45)




A-750-611
Index No. 1440-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

April 23, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Commission basis

APPELLATE DIVISION DECISION

Matter of Abraham Katz

268 App. Div. 1075

TOTAL OF PARTIAL UNEMPLOYMENT – COMMISSION SALESMAN

Claimant, continuously employed as a commission salesman, was not totally unemployed irrespective of the amount of commissions earned during any particular period of time.

Referee’s Decision: The initial determination of the local office which suspended claimant’s benefit rights because he was not totally unemployed is sustained. (6/11/44)

Appeal By: Claimant

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

"Claimant filed an original claim for benefits on November 5, 1943. He reported through April 18, 1944. As a result of certifications by claimant to total unemployment during the above reporting period, he received 17 checks in the amount of $18 each, totaling $306. On May 25, 1944, based on information obtained by the local office, initial determinations were issued, effective November 5, 1943, disqualifying claimant because of unavailability, because he had not been totally unemployed; and also charging that he made wilful false statements to obtain benefits as a result of which he had been overpaid the sum of $306, and reducing his rights to future benefits by 20 effective days. Claimant objected to the local office action and requested a hearing.

"Claimant is 72 years of age. He is of foreign extraction. At one time claimant was a tailor. Because of failing eyesight, he had to give up this work. He made arrangements with a coal company to act as a commission salesman. For over 20 years he has been soliciting orders for coal and oil receiving a commission of 25 cents for each ton delivered, and also a commission of one-half cent for each gallon of fuel oil delivered.

"Claimant lives in a residential area in Brooklyn. Practically all of his customers consist of neighbors who own one or two-family houses. He has no large accounts who use fuel in substantial volume. Most of the Fuel orders are obtained by claimant during the spring and summer months. This is the period of his greatest earnings. Thereafter, he continues to receive commissions on any additional fuel delivered to his customers. Since their storage facilities are generally ample to hold a full winter’s supply, the amount of additional tonnage ordered and delivered during the winter is small compared to his summer volume. At times, during the winter, claimant’s customers made contact with him in order to obtain additional deliveries. Only on limited occasions does claimant call upon his customers. Because of his advanced age and general physical infirmities, and because there is a certain element of personal relationship existing between the customers and claimant, they call upon him when fuel is needed. Claimant thereupon either takes or transmits the order to the coal company, or has the customer make direct contact. In all instances, claimant receives full commission.

"Claimant’s eligibility for benefits is based upon earnings had by him as a coat commission salesman. During 1942, claimant’s base year, he had total earnings of $1,083.11. these were received as follows: First Quarter, $69.86; Second Quarter $401.25; Third Quarter $451.18; Fourth Quarter $160.82.

"During the period from November 5, 1943 to March 24, 1944, claimant had earnings in the sum of $107.42. His relationship with the coal company has at all times continued. After the above period, he continued to receive checks based upon commissions earned for subsequent deliveries.

"There is some question about what took place at the local office at the time claimant certified to unemployment and signed for benefit checks. I find that claimant in good faith believed that he was totally unemployed and available for employment at the time he received the benefits which were paid to him during the period in question."

As an additional finding, the Board includes the schedule of commissions received by claimant during the period in question:

November 16,1943 $11.95
December 7, 1943 $ 7.75
December 17, 1943 $ 8.75
January 6, 1944 $15.50
January 14, 1944 $22.42
January 28, 1944 $ 4.50
February 18, 1944 $ 3.00
February 25, 1944 $ 2.46
March 24, 1944 $ 5.75

Appeal Board Opinion: The sole issue herein is whether or not claimant was totally unemployed within the meaning of the Law during his reporting period at the local office. The facts are not in dispute. The referee ruled, on the authority of Appeal Board 424-38 and Appeal Board 762-39, that since claimant was continuously employed as a commission salesman, he did not suffer total unemployment irrespective of the amount of commissions earned during any particular period of time. We cannot accept the referee’s conclusion for the reason that we believe that the principles of those cases do not govern here. Claimant’s situation is closely akin to that of the claimant in Matter of Orsen A. Bryant, 246 Appellate Division 970, affirming Appeal Board 6265-41. In our decision in that case we said:

"The referee held that claimant was not totally unemployed. He ruled that since claimant had not severed his connection with his employers and continued in their services, he must be considered in the category of an ordinary salesman working on a commission basis. Arguing in support of the decision, the Industrial Commissioner contends that the principle of Appeal Board case number 762-39 applies to this case, and that it is immaterial under the circumstances herein whether claimant earned in excess of the statutory amount during any week.

"However, a consideration of the facts adduced in the instant case leads us to the opinion that this situation is an exception to the general rule and that the principles enunciated in case number 762-39 do not apply here. The fact that claimant did not sever his relationship with the newspapers is not sufficient in itself to justify a finding that he was not totally unemployed. His efforts on their behalf during the period in question were confined to isolated transactions and were exerted only on rare occasions when he had a reasonable prospect that a renewal subscription cold be obtained. This is not true of the ordinary commission salesman who exerts an effort to obtain business with some degree of regularity and continuity. Rather, claimant falls within the category of a part-time employee who may be called upon to render slight services on rare occasions. He could have accepted full-time employment without interfering in any way with his activities on behalf of the newspapers.

"Under these circumstances we believe that, with the exception of the week during which he earned in excess of three dollars, claimant meets the statutory test of total unemployment and he should be held eligible for benefits."

Likewise, it is held that the instant claimant met the statutory test of total unemployment and was eligible for benefits. However, he did have some remuneration for employment on certain days during his reporting period. It is impossible to determine these exact days on the state of the present record. This case therefore is referred back to the local office for further inquiry to determine the specific days of total unemployment during claimant’s reporting period and to re-compute the effective days for which he should receive credit.

Appeal Board Decision: Claimant was totally unemployed and eligible to receive benefits except as provided herein. This case is returned to the local office in accordance with the foregoing opinion. The local office determination is modified accordingly. The decision of the referee is modified accordingly. (9/25/44)

Appeal By: Industrial Commissioner

Appellate Division Opinion: No opinion written.

Appellate Division Decision: Determination of the Appeal Board reversed and that of the Referee reinstated, without costs. (1/2/45)




A-750-613
Index 755 C.5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DEPARTMENT
ADJUDICATION SERVICES OFFICE

May 7, 1945

INTERPRETATION SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Restriction of Employment
Days - Hour

AVAILABILITY AND CAPABILITY-RESTRICTION AS TO SHIFT - DOMESTIC CIRCUMSTANCES

Claimant with a history of night shift employment and whose domestic circumstances prohibited work on other than night shifts was found to be available upon a conclusive showing that there was a reasonable prospect of obtaining night shift work.

A.B. 11,437-44

Referee's Decision: Claimant was not available for employment. (11/7/44)

Appealed by: Claimant.

Findings of Fact: Claimant is married and the mother of three children, aged five, eight and twelve years. She resides in Utica. She was employed in a war plant in Ilion as an inspector of gun parts from January 4, 1943 to January 29, 1944. In this employment she worked on the afternoon and night shifts and she was laid off because of a cutback in the employer's work. Claimant filed application for employment and unemployment insurance benefits on August 10, 1944. About that time her husband was not feeling well and expected to be laid off from his employment. Claimant was interviewed at the office of the United States Employment Service and told the interviewer that she wanted work on the afternoon or night shift. Claimant had three years of Normal School training and was classified as a teacher. On September 9, 1944 claimant was offered employment at the Rome Air Depot as a storekeeper at the basic salary of $1440 per year. The hours of employment were from 7:45 A.M. to 4:15 P.M. Claimant refused the offer of employment, stating that she preferred work in Utica. When interviewed at the local office claimant stated that she could not accept work on the day shift because she was unable to find any person to take care of her children on mornings. She stated further that she had made arrangements with a neighbor to look after her children in the afternoons and evenings and for that reason she could only accept work on the afternoon or night shifts. On October 3, 1944 an initial determination was issued disqualifying claimant from benefits for refusal to accept the offer of employment of September 19, 1944. The employment interviewer testified before the referee that when the referral was made to the Rome Air Depot it was not known that the claimant was looking for work on the night shift. It was stated that there were opportunities on the night shift in Rome at the time and that claimant would have been referred to such jobs. It developed at the hearing before this Board that the original employment registration card of the claimant had been lost. A supplementary employment history card was produced, from which it appears that no inquiry was made of claimant as to what hours of work she had previously worked or then sought. Claimant continued to report weekly to the insurance office and periodically at the employment office until December 20, 1944. During this period claimant received at least six referrals to employment. She visited the prospective employer on each occasion. In three instances there were no jobs available. In one instance there was no work on the afternoon shift and she was told to return two months later. In another instance she was offered work which she was unable to do and in the last case the employer refused to hire her because the job called for strenuous manual labor. It was testified that during this period there were a large number of women working in mills in and about Utica on the afternoon and night shifts. Throughout this entire period claimant continuously make independent efforts to seek work. Her husband was unable to work steadily and it was necessary for her to find work in order to provide for the household expenses. Early in January 1945, through her own efforts, she finally obtained work in a spinning mill in Utica as a roller picker. Her hours of work are from 2:00 P.M. to midnight and she receives about $29 per week.

Appeal Board Opinion We cannot accept the conclusion of the referee that claimant was unavailable for employment. The record conclusively shows that claimant's circumstances made it imperative that she work in order to supplement the family income. Her entire course of conduct shows a diligent search for employment which she finally obtained through her own efforts. The fact that she confined herself to the afternoon or night sifts should not alter her status. Her base year earnings were built up on such shifts and it is clear that her family obligations and inability to obtain help justified her refusal to accept employment on the day shift. For the reasons above stated we hold that claimant's refusal to accept the offer of employment on September 19, 1944 was with good cause. We believe that the failure to refer claimant to available jobs on other shifts on that day is explained by the loss of her original employment history card and the misunderstanding resulting therefrom. There is no indication that any of the offers of employment made to claimant following her disqualification were such as she could be reasonably expected to accept.

Decision: Claimant did not, without god cause, refuse to accept an offer of employment. Claimant was available for employment throughout the period of her reporting. The initial determination is overruled. The decision of the referee is reversed. (3/26/45)




A-750-621
Index No. 1735B-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

May 7, 1943

Appeal Board Case No. 11,420-44

VOLUNTARY LEAVING – FAILURE TO PROMOTE AS AGREED (SECTION 593 OF LABOR LAW)

Where employer failed to keep his definite promise made at the time of hiring to promote claimant to a higher paying job, it was held that claimant had good cause to leave when it was shown that a vacancy at the higher rate had occurred.

Referee’s Decision: Claimant voluntarily left employment without good cause. (11/16/44)

Appeal By: Claimant

Findings of Fact: For many years prior to April 1943 claimant had been employed as a clerk in various hotels and lodging houses. In April of 1943 claimant was employed as a clerk in a lodging house located on Park Row in the City of New York. On or about that time a representative of the employer herein approached claimant and offered him employment as a night clerk in the lodging house operated by the employer. The rate of pay was to be at $20 per week. Claimant was reluctant to accept the offer of employment because he had been previously discharged without notice by this employer. Thereupon the representative of the employer promised claimant that if he would accept the offer of employment he could be promoted as soon as a vacancy occurred to clerk in a family hotel owned by the same employer. Clerks in the family hotel were being paid at that time at the rate of $30 per week for day work and $40 per week for night work and in addition thereto received tips from the patrons of the hotel. In reliance on the promise of the employer that he would be promoted as soon as a vacancy occurred, claimant accepted the offer of employment at $20 per week although at that time he had an offer of employment from a different employer at $25 per week. Claimant was thus employed from about April 28, 1943 to August 7, 1944. At the end of July 1944 or at the beginning of August of that year claimant discovered that a vacancy had occurred in the family hotel about the end of 1943 and that the employer had failed to keep its promise to the claimant and appinted some other person as a clerk to fill the vacancy. Upon the discovery of this fact claimant gave a week’s notice to the employer and at the end of the week terminated his employment. On September 7, 1944 claimant filed an application for employment and for unemployment insurance benefits and reported thereafter. Based upon an investigation of the circumstances surrounding the termination of claimant’s employment and on an interview held at the local office, an initial determination was made holding that claimant’s voluntary leaving of employment was without good cause. Claimant contested the initial determination and demanded a hearing. The referee sustained the initial determination and claimant appealed.

Appeal Board Opinion: The sole issue on this appeal is whether or not claimant’s leaving of his employment was without good cause. This in turn depends as to whether or not a promise had in fact been made by the employer to the claimant that he would be promoted to night clerk in the family hotel as soon as a vacancy occurred. In deciding the issue of fact against the claimant the referee was largely influenced by his belief that claimant was not qualified for the job in the family hotel. We believe that that is not determinative of the issue. We believe that such a promise was made by the employer to the claimant. Whether or not the employer ever intended to keep that promise in view of claimant’s qualifications, has no bearing on the issue of the leaving of his employment. Having found that the employer made a promise of the promotion to the claimant and broke that promise, it follows as a matter of course that claimant was justified in leaving his employment.

Decision: Claimant’s voluntary leaving of his employment was with good cause. The initial determination of the local office is overruled. The decision of the referee is reversed. (3/5/45)




A-750-623
Index 785.5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MAY 24, 1945

INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Domestic Circumstances
Transportation Facilities

AVAILABILITY - DOMESTIC CIRCUMSTANCES - LACK OF TRANSPORTATION

Inability to obtain transportation to only possible night work, which was the only shift she could work because of domestic circumstances, rendered claimant unavailable.

A.B. 11,550-45

Referee's Decision: The initial determination which held that claimant was unavailable for employment, effective November 6, 1944, is sustained. (1227/44)

Appealed By: Claimant.

Findings of Fact: Claimant worked from February 3, 1943 to October 1944 as a crib attendant at a defense plant located in Ilion, New York. Following a layoff from this employment she filed an application for benefits on October 9, 1944. Claimant is the mother of five children, two of whom live with her. She resides at Middleville, New York, a rural community located about eight miles north of Herkimer. On November 6, 1944 she was offered two jobs with her former employer, one as a milling machine operator on the night shift and the other as an inspector on the day shift. Because of a thyroid condition claimant cannot work on a machine and was compelled to reject the night job. Although she was willing to accept the job as an inspector she refused the offer of employment on the day shift due to domestic circumstances. There is no public or other facilities available to claimant to enable her to reach the prospective employer's plant or other nearby industrial localities for the night shift. On November 17, 1944 the local office issued an initial determination, effective November 6, 1944, holding that claimant was unavailable for employment. On December 21, 1944 claimant was offered a job as an inspector on the night shift with her former employer. She informed the employment interviewer that she could not accept the job offer because she could not obtain transportation to the place of employment.

Appeal Board Opinion: The referee sustained the initial determination. On this appeal claimant contends that she should be held available for employment from November 6, 1944 to December 21, 1944, the date when she refused an inspector job on the night shift because of lack of transportation. Claimant argues that since the referral of November 6, 1944 was to work for which she was not suited, the question of transportation was academic at that time and may not be used as a basis upon which to judge her availability. We find no merit to claimant's contention. Irrespective of the propriety of the referral of November 6, 1944, claimant was available only for night work and she admittedly could not have accepted any job on the night shift at that time due to her inability to obtain transportation. The referee properly held that claimant failed to meet the test of availability commencing November 6, 1944, which is the effective date of the initial determination.

Decision: The initial determination holding that claimant was unavailable for employment as of November 6, 1944 is sustained. The decision of the referee is affirmed. (1/31/45)




A-750-624
Index 755 B.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DEPARTMENT
ADJUDICATION SERVICES OFFICE

June 21, 1945

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

WAGES RESTRICTION - ABOVE PREVAILING - IN EXCESS OF PREVIOUS RATE

A dress buyer who insisted upon a salary of at least $100 per week, which was above the prevailing rate and in excess of her previous salary and which precluded referring her to employment for which she was fitted was held to be unavailable.

A.B. 11,333-44

Referee's Decision: The initial determination of the local office holding that claimant was unavailable for employment is sustained. (10/5/44)

Appealed by: Claimant

Findings of Fact: Claimant has been a dress buyer for fifteen years. From 1929 to 1933 she had earned about $75 a week. From 1933 to 1940 she worked in a similar capacity for one employer, starting at $50 a week and earning $90 a week at the time of her separation. Claimant voluntarily left this employment in December 1940 due to pregnancy. Her baby was born May 1941. Claimant was out of the labor market from December 1940 to December 7, 1942. Her husband was inducted into military service in August 1942. She reentered the labor market in December 1942 in order to contribute to the support of her family. Claimant worked from December 7, 1942 to February 15, 1944 as a dress buyer in a department store. She started at a salary of $55 a week and at the time of her separation she earned $65 a week. Claimant is the mother of two children, the oldest of which is three years of age. While claimant worked for the last employer she hired a nurse to attend to her children. Difficulties arose in the home because the domestic did not properly attend to her duties in caring for claimant's children. Since her domestic problems interfered to some extent with her duties in the employer's establishment, it was mutually agreed between claimant and the employer that claimant would resign. Following her separation on February 5, 1944 claimant personally attended her children. Claimant attempted to file an application for benefits in February 1944. she was informed that she was ineligible due to insufficient earnings in 1942. She filed an application for benefits on June 8, 1944. She was called in for an interview at the local office on June 27, 1944. At this interview claimant stated: "After consideration, I will not take less than $100 to $125 per week." The United States Employment Service had a limited number of jobs in claimant's field. It referred claimant to a private employment agency which specialized in placements in claimant's line of work. The local office received a report from the operator of this employment agency that the only jobs for claimant were those paying from $3000 to $4000 a year, that in her application filed with the employment office claimant specified that she would not work for less than $125 a week and that there was no probability of placing claimant under such circumstances. On July 6, 1944 the local office issued an initial determination that claimant voluntarily left her employment with good cause, but under circumstances indicating a withdrawal from the labor market. This was superseded by another determination dated July 11, 1944 holding that claimant was unavailable for employment effective June 8, 1944. The basis of this determination is that claimant imposed such conditions relative to the salary which she is willing to accept as to preclude any possibility of placing her in employment. At the hearing claimant stated that by reason of her training and experience in her specialized field she rated the salary mentioned at the various conferences at the local office and at the private employment agency. She also contended that she was underpaid in her last employment and that she had accepted low starting salary because she was out the labor market for some time and her economic situation made it imperative for her to work. The operator of the private employment agency who specializes in placing persons in claimant's field testified that the prevailing rate in the locality for a buyer such as the claimant was between $3000 and $4000 a year and that the possibilities of obtaining employment for claimant in the locality meeting her specifications were very remote. He further testified that the value of a buyer's services in the labor market is measured by the person's background, type of experience, volume of work handled, personality and other factors which influence an employer in hiring a prospective employee. No definite offer of employment was made to claimant. Claimant testified that she made independent efforts to seek employment paying a salary acceptable to her by answering advertisements in the newspapers, contacting private employment agencies and manufacturers, and applying for work at various department stores. Her efforts in this respect were unsuccessful. Claimant's husband was discharged from military service in August 1943. Claimant was still unemployed at the date of the adjourned hearing on September 26, 1944.

Appeal Board Opinion: Claimant takes the position that she will not consider any offer of employment in her usual line as a dress buyer at less than $100 per week. The sole basis of the initial determination of unavailability in this case is that claimant's salary demands are excessive and preclude the possibility of her obtaining employment. It is contended that she has in effect removed herself from the labor market. At best it is a difficult matter to appraise the value of claimant's services in her chosen field. Claimant stresses the fact that many buyers of comparable experience and background are receiving the salary which she aspires. A glance at her previous work history, however, hardly bears out her contention. She never earned more than $90 per week and since that time has been out of the labor market for considerable periods. In her last employment her maximum salary was $65 a week. There is expert testimony in the record that the maximum prevailing rate in the locality for a buyer in claimant's category is $4000 a year. Consequently, we find little basis for claimant's flat refusal to entertain any offer of employment at less than $100 to $125 a week. Since claimant set up a minimum wage of $100 as an essential condition of employment, no specific offers of employment at lesser rates were made to her. In spite of all of the efforts made by the employment agencies and the independent canvass for employment by claimant, she remained unemployed for at least seven and one-half months. We believe that under these circumstances claimant has established such unreasonable and arbitrary barriers to employment that she fails to meet the test of availability under the Unemployment Insurance Law. The referee properly held that claimant rendered herself unavailable for employment effective June 8, 1944.

Decision: Claimant was unavailable for employment effective June 8, 1944. The initial determination is sustained. The decision of the referee is affirmed. (1/15/45)




A-750-628
Index No. 1205E-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

June 21, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Disqualification period
Prior to registration

Appeal Board Case No. 10,920-44

REFUSAL OF EMPLOYMENT – NO ACTIVE CLAIM FOR BENEFITS.

Disqualification may not be imposed against a claimant whose claim is inactive at the time of refusal of employment.

Referee’s Decision: The initial determination of the Out-of-State Resident Unit disqualifying claimant for refusal, without good cause, to accept an offer of employment is overruled. (5/9/44)

Appeal By: Industrial Commissioner

Findings of Fact: Claimant filed an additional application for benefits in Miami, Florida against New York as the liable state on February 14, 1944. Claimant remained in Florida until about March 26, 1944. On March 20, 1944 the Miami office of the United States Employment Service sent for claimant and offered her employment as bookkeeper, which claimant refused because she wanted work as a photographer. Claimant returned to New York City and reinstated her claim on March 28, 1944. On April 17, 1944, as a result of a report received from the Florida Employment Service an initial determination was issued, effective March 20, 1944, disqualifying claimant for refusal without good cause to accept an offer of employment.

Appeal Board Opinion: On this appeal the Commissioner challenges the referee’s decision that claimant was justified in refusing the offer of employment. It appears that claimant had discontinued reporting for insurance purposes between March 12, 1944 and March 28, 1944. The offer of employment was made on March 20, 1944. We have held that a claimant may not be disqualified from benefits for refusing any offer of employment during a period when he was not an applicant for benefits. On this question we stated in Appeal Board, 5743-41 in relation to Section 506 (now Section 593) of the Labor Law:

"It is inherent in this section, that before a disqualification for benefits may be imposed against an employee who refuses to accept an offer of employment, that benefit rights exist from which he might be disqualified. Similarly, it must be noted, that before an employee may be the subject of a disqualification pursuant to Section 506, the following prerequisites must exist: (1) That said individual is unemployed and 92) is a claimant for unemployment insurance benefits. (Labor Law, Section 510; Regulation UI 1-39)."

Accordingly, the disqualification of claimant for refusal to accept the offer of March 20, 1944 must be overruled.

Decision: The initial determination disqualifying claimant for refusal to accept an offer of employment during a period when she was not an applicant for benefits is overruled. The decision of the referee is affirmed, as modified. (8/14/44)




A-750-633
Index No. 1480E-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

June 21, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Other employments

Appeal Board Case No. 11,422-44

QUESTION OF "TOTAL UNEMPLOYMENT" – CHURCH ORGANIST

Claimant was not totally unemployed on the days she performed services as a church organist since she received wages for those services at the rate of $7.00 to $10.00 per day under a contract of hire.

Referee’s Decision: Claimant’s request that her previously registered days of employment be credited to her as compensable period was properly denied by the local office. (10/24/44)

Appeal By: Claimant

Findings of Fact: Claimant, a musician and organist, filed an application for benefits on February 9, 1944. She certified to the local office that she was not totally unemployed on May 21 and May 28, 1944. Claimant filed another claim on June 5, 1944. During her subsequent reporting period she certified to the local office that she had earnings and was not totally unemployed on July 26, July 30 and August 2, 1944. At an interview at the insurance section on August 17, 1944 claimant requested credit for May 21, 28, July 26, 30 and August 2, 1944 as compensable period because she was totally unemployed on these days despite her previous certifications to the contrary. The local office denied claimant’s request on the ground that the days in question were properly registered as employment period in her identification booklet. Claimant is an organist in a church. She also gives private instruction in music. On the five days mentioned above claimant played the organ during church services. Her compensation for her services as an organist, which ranged from $7 to $10 a day, was fixed pursuant to an agreement between herself and the minister of the church. The minister fixed the period of the church service during which claimant was required to play the organ. Claimant purchased her own music. The program of selections to be played was pre-arranged by the choir director of the church after consultation with the claimant. Claimant contends that as to her church engagements she falls within the category of a self-employed person who was available for employment during her reporting period.

Appeal Board Opinion: Section 402.10 of the Labor Law (now Section 522) reads as follows:

"’Total unemployment’ means the total lack of any employment on any day, including employment not subject to this article, caused by the inability of an employee who is capable of an available for employment to obtain any employment in his usual employment or in any other employment for which he is reasonably fitted by training and experience, including employments not subject to this article."

The issue on appeal is whether claimant suffered total unemployment within the meaning of the above section on the days when she performed as an organist in a church. Claimant contends that she is a self-employed person and received a professional fee for such services. This contention cannot be accepted under the circumstances herein. We believe that there was sufficient testimony before the referee to hold that claimant’s services as an organist in the church were performed pursuant to a contract of hire. Necessarily, the church services were under the control of the minister. Claimant’s hours of work and the program were dictated by the functionaries of the church. Claimant undertook to perform her services subject to such conditions. It must be held, therefore, that she did not occupy the status of a self-employed person on the days in question.

Decision: The initial determination denying claimant’s request to be credited with additional effective days of total unemployment is sustained. The decision of the referee is affirmed. (1/15/45)




A-750-635
Index No. 1640B-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

June 21, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances- Other

Appellate Division
Matter OF Smith, 269 App. Div. 795
Appeal Board Case No. 11,255-44

VOLUNTARY LEAVING-OBJECTION TO MENIAL TASK

Where an accountant quit because he was asked to do routine work of a clerical nature associated with his regular work with no loss in pay, it was held that his quitting was without good cause.

Findings of Fact: A haring was held herein at which claimant and representatives of his former employer and of the Industrial Commissioner appeared. Testimony was taken. Claimant, an accountant, was employed by a firm of certified public accountants for a period of approximately five weeks until May 31, 1944 at a salary of $250 monthly. He was assigned to make an audit upon the books of one of his employer’s clients. This assignment continued until a few days prior to the termination of his employment. About a week prior to the conclusion of the audit, claimant inquired of his employer concerning his next assignment, but was advised at that time that the employer had not determined what work he would assign to claimant. A few days prior to the separation from his employment, while claimant was at the client’s place of business, he was requested by a member of the employer’s firm to perform certain duties in connection with the mailing of statements to verify the accounts receivable shown on the client’s books of account. Claimant felt that this work was of a clerical nature and objected thereto. He thereupon telephoned the employer and made known his objection. When the employer advised him to continue with that assignment, he told the employer that he intended to resign at the end of the month. When he completed his work at the client’s place of business, claimant returned to the employer’s office and was given an assignment which he again believed was of a clerical nature, and continued in that assignment until the end of the month, when his employment terminated as a result of the resignation he had offered. The work to which claimant objected was responsible work requiring the supervision of an accountant and is work usually performed by an accountant. No diminution in pay resulted to claimant because of the performance of those duties. When claimant advised the employer that he intended to resign, he had no prospect of any other employment. He had communicated with a firm of accountants with regard to a newspaper ad for an accountant, and after speaking with a representative of that firm over the telephone, had arranged for an interview to take place after the date when he intended to resign. However, he was unaware of whether he would obtain that employment, and ultimately when the interview was held, he was not hired. He remained unemployed until about June 30, 1944. When the employer hired claimant, he had obtained certain references from him. After claimant commenced working, his references were checked. Certain items therein caused the employer to observe claimant’s work closely. The employer was not entirely satisfied with claimant’s work, but nevertheless had no intention of discharging claimant at the time his resignation was submitted. It was the employer’s intention to keep claimant and to try assigning him to other duties to see whether he was better fitted for duties of a different nature. Nevertheless when claimant’s resignation was submitted, the employer accepted it. About six weeks following the termination of claimant’s employment, at his request the employer wrote a letter advising a firm to whom claimant had applied for a job, that claimant had been in their employ, and after giving the dates of such employment, stated that his work was not suited to the employer’s needs and that his voluntary resignation was accepted in order to obviate the necessity for requesting his resignation. Notwithstanding the contents of that letter, the employer had not, prior to the date claimant submitted his resignation, given claimant any indication that his discharge was imminent, and claimant had no cause to believe that if he were willing to continue on the job, the job was not available for him. After he filed his claim for benefits, the employer advised the Industrial Commissioner’s representative that work was available for this claimant and that he had voluntarily left. An initial determination was made on July 19, 1944, disqualifying claimant from receiving benefits for a period of six weeks following his resignation, because he was deemed to have left his employment voluntarily without good cause. Claimant objected to such determination and requested a hearing.

Referee’s Opinion and Decision: The first question to be disposed of herein is whether or not claimant actually resigned from his last position or whether he merely anticipated that he was to be discharged and submitted his resignation before being formally advised of his discharge. On the credible evidence herein, I am satisfied that when claimant submitted his resignation, he had no reason to suspect that any discharge was imminent. He was not justified in suspecting that, because the employer had assigned duties to him, which he felt, were unimportant, the employer contemplated discharging him. Under these circumstances, he is not permitted to substitute his judgment for the employer’s judgment concerning the duration of his employment. (Appeal Board Case 6179-43) I conclude that claimant’s voluntary leaving be without good cause, then the disqualification imposed by the Industrial Commissioner’s representative is in accord with the statute. The only fact upon which claimant relies to justify his voluntary leaving is the nature of the duties which had been assigned to him. Upon the evidence, I conclude that the assignment of those duties did not constitute good cause for voluntary leaving within the meaning of the Unemployment Insurance Law. (Appeal Board Cases 10,056-43, 10,532-43) In my opinion, the duties to which claimant had been assigned were duties ordinarily performed by a person following his occupation, and since they did not result in any diminution in his wages, nor did they impose upon him any more onerous tasks or result in any impairment of his abilities or endanger his health, he cannot rely upon that to justify his voluntary leaving under the terms of the Unemployment Insurance Law of this state. The initial determination is therefore sustained. (9/7/44)

Appeal By: Claimant

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issues involved in his case.

Appeal Board Decision: The decision of the referee is affirmed. (11/20/44)

Appellate Division Opinion: No opinion written

Appellate Division Decision: There was substantial evidence to support the determination. Decision affirmed without costs. All concur. (5/9/45)

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MATTER OF KARMAN
2 A.D. 2d 626

SUPREME COURT
APPELLATE DIVISION
THIRD JUDICIAL DEPARTMENT

May 10, 1956

Appeal Board Case No. 51,207-55

In the Matter of the Claim for Benefits under Article 18 of the Labor Law made by HENRY KARMAN, Appellant, ISADOR LUBIN, as Industrial Commissioner, Respondent.

Appeal by claimant from a decision of the Unemployment Insurance Appeal Board which upheld a determination disqualifying claimant from receiving benefits for 42 consecutive days on the ground that he voluntarily left his employment without good cause. (Unemployment Insurance Law, Sec. 593, subd. 1, par. c).

The facts are undisputed. Claimant was employed as an assistant bookkeeper. On April 28, 1955, the employer’s certified public accountant gave claimant some figures to be posted in making opening entries in a new set of books for a new fiscal year. The employer was present and directed claimant to make the entries. Claimant objected to making these entries because he considered it beyond the duties of his job, and felt that the head bookkeeper should make them. Claimant sat in the employer’s office for approximately three hours brooding about the matter, and finally refused to make the entries and was discharged. It has been found as a fact that claimant’s refusal to perform the work assignment given to him brought about his dismissal, and that under such circumstances this constituted a voluntary leaving of the employment without good cause. What constitutes "good cause" is not defined in the statute, and would ordinarily be a question of fact. When claimant made the choice, amounting to an election not to meet a condition of the work, he became separated from his employment by his own choice, and it must bee deemed within the fact-finding power of the Board to determine, under the particular circumstances, that the separation was a voluntary one. (Matter of Malaspina [Corsi], 209 N.Y. 413, affg. 285 App. Div. 564).

Decision of the Unemployment Insurance Appeal Board unanimously affirmed, without costs.




A-750-636
Index No. 1655-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

June 21, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Health
Affected by Working Conditions

Appeal Board Case No. 11,524-45

VOLUNTARY LEAVING OF EMPLOYMENT – HEALTH – COOPERATION WITH EMPLOYER TO ERADICATE ADVERSE WORKING CONDITIONS

Claimant, whose health was adversely affected by her work but who refused transfers to locations which would overcome the objections and at similar work, was held to have voluntarily quit without good cause.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving any benefits until forty-two consecutive calendar days have elapsed after her registration for benefits on the ground that she voluntarily left her employment without good cause is overruled. (12/14/44)

Appeal By: Industrial Commissioner

Findings of Fact: Claimant, thirty-two years of age, was employed by a large New York City department store for eleven years. She started as a sales clerk at $15 per week plus commissions. From time to time she received promotions and increases in salary. Throughout her employment, claimant worked in the basement of the store. In 1941, she was promoted to service manager. In this position, she supervised various sales clerks, arranged work schedules and performed training, sales promotion, and personnel work. In March 1944 her salary was increased from $38 to $43 per week. In the spring of 1944, she was placed in charge of an important spring promotional sale which ran for several months. As a result of the work entailed in the supervision of this sale, claimant became run-down and nervous. About the middle of September 1944, claimant requested her personnel supervisor for a transfer to a different section of the store, preferably to the receiving or buying departments, so that the pressure and tension would be less than in her basement job. About a month later, claimant had another conversation with her personnel supervisor at which time she informed her that she decided to resign from her position. Claimant was thereupon offered a position comparable to the one she held and at the same salary on the second floor of the store. Claimant refused the offer and resigned on October 16, 1944 effective October 20, 1944. On October 19, while claimant was still employed at the store, one of the vice-presidents of the employer spoke to the claimant and offered to transfer her out of the basement and to a section of the store which would be more favorable to claimant’s health. Claimant refused to accept the offer of the vice-president and on the next day left her employment. On October 23, 1944 claimant filed a claim for unemployment insurance benefits. She reported regularly thereafter to March 6, 1945. When the local office was informed by claimant’s former employer that she had "resigned because she did not like job," the local office interviewed claimant with respect to the circumstances surrounding her leaving. As a result thereof and on November 14, 1944, an initial determination was made by the local office disqualifying her from receiving any benefits until forty-two consecutive calendar days have elapsed after her registration from benefits on the ground that she voluntarily left her employment without good cause. Claimant objected thereto and requested a hearing. In a letter dated January 6, 1945 to the Department of Labor, the employer’s representative stated:

"At the time of resignation Miss E. was offered a similar job at the same salary on our second floor. Two weeks later when she came in to pay us a visit she was offered another job at the same salary on another floor with full reinstatement.

"Although both these opportunities were turned down by Miss E., we will be glad to consider her for re-employment, if she is interested."

At the time of her resignation, claimant had no other offer of employment. Two weeks prior thereto she had filed an application for a position as an employment interviewer with the United States Employment Service. Up to the date of the hearing before the Board, held on March 28, 1945, this employment had not materialized. Since her resignation, claimant has not had any employment. On December 31, 1944 claimant was married. Claimant has received eight benefit checks for the period subsequent to the termination date of her disqualification.

Appeal Board Opinion: There is no question but that claimant voluntarily left her employment. The only issue presented is whether or not her leaving was with good cause. Claimant predicates her case on the fact that her position as service manager in the basement section of the store impaired her health and that she could not effect a transfer to a more favorable section of the store. It is clear from the record that her health was impaired but it is equally clear that her employer made genuine efforts to have her transferred to a more desirable section of the store. On Monday, October 16, claimant was offered a position on the second floor, and on Thursday, October 19, one of the vice-presidents of the store informed claimant that he could have her transferred from the basement. Claimant refused both offers. Claimant was an "excellent" and conscientious worker. Her employer was anxious to retain her services. We feel certain that had claimant exercised a little patience the employer would have transferred her to a position more conducive to her physical well-being. When she resigned claimant had no other job and no reasonable prospect of immediate employment elsewhere. Under the circumstances herein, we hold that claimant’s reasons for voluntarily leaving her employment do not constitute good cause within the meaning of Section 593.1(c) (formerly Section 506.2(c)) of the Labor Law.

Decision: The initial determination made by the local office disqualifying claimant from receiving any benefits until forty-two consecutive calendar days have elapsed after her registration for benefits on the ground that she voluntarily left her employment without good cause is hereby sustained. The decision of the referee is reversed. (4/9/45)




A-750-637
Index No. 1215B-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 21, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Delay in Acceptance

Appeal Board Case No. 11,751-45

REFUSAL TO START WORK UNTIL FOLLOWING MORNING

When claimant was interviewed by employer late in the afternoon and was requested to start work immediately, her refusal to begin work until the following morning, due to domestic circumstances, did not constitute a refusal of employment without good cause.

Referee’s Decision: Claimant, without good cause, refused to accept an offer of employment. (2/13/45)

Appeal By: Claimant

Findings of Fact: Claimant filed an application for employment and unemployment insurance benefits on December 6, 1944. She was last employed as a saleslady in a retail millinery shop in New York City for about ten months and was laid off on November 4, 1944 because of slackness of business. Prior to 1940 claimant had been the proprietor of a store dealing in sports wear and ladies apparel. Thereafter she was employed intermittently by a large general department store as buyer and manager. She was also employed for a short period by an interior decorator. On December 21, 1944 claimant was referred to a job as a saleslady at a retail millinery store located on Fulton Street in New York City. The referral was made late in the afternoon of that day and claimant immediately called on the employer. She was interviewed in the store and the employer offered to give her a tryout, asking her to go to work at once. The claimant resides on West 86th Street in Manhattan with her husband and adult daughter. She had planned on preparing dinner at home that evening and advised the employer that she could not work that evening, but that she was willing to start work the next day. The employer stated that unless claimant would go to work that night he would not hire her. She thereupon left the establishment. A report was forwarded by the United States Employment Service to the local office to the effect that claimant had refused the offer of employment in question. Claimant was interviewed at the local office and signed a written statement containing various objections to the job offer and also contending that she was not hired because she could not start work at once. An initial determination was issued disqualifying claimant for benefits for refusing, without good cause, to accept an offer of employment. Claimant requested a hearing on the issue. On January 18, 1945 claimant through her own efforts obtained a position as a saleslady, at which she was tried out for a single day and worked until 10 p.m. On January 29 claimant obtained other employment and worked during that week and part of the following week. In a letter addressed to the Board claimant advises that she was called back to work by her former employer on about February 24 and has been working there since.

Appeal Board Opinion: The referee ruled that the reasons advanced by claimant for rejecting the offer of employment did not constitute good cause and he accordingly sustained the initial determination. We agree that claimant had no legitimate objection to the job offer on the ground of salary, hours of work, distance from her residence or the type of work involved. However, the undisputed testimony is to the effect that claimant did not refuse the offer. She merely requested that she be permitted to report for work on the following day. This was not an unreasonable request on her part, since the referral and the interview occurred late in the afternoon and claimant had previously made plans to prepare dinner for her family. The testimony shows that claimant has always been willing to work during evening hours provided she had opportunity to make the necessary arrangements in connection with her domestic obligations. The circumstances herein would appear to point to a withdrawal of the offer of employment by the employer. We are of the opinion that it cannot be said in this case that claimant’s conduct constituted a refusal, without good cause, of the offer of employment.

Decision: Claimant did not, without good cause, refuse to accept an offer of employment. The local office determination is overruled. The decision of the referee is reversed. (4/16/45)




A-750-639
Index No. 1250D-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

June 21, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Hours – Overtime
Work Week – Refusal of Six Day

Appeal Board Case No. 11,730-45

REFUSAL – SIX DAY – 48 HOUR WORK WEEK

In the absence of any valid circumstance, either economic, domestic, or condition of health, which would make the work an undue hardship, claimant’s refusal of employment because it required a six day work week of forty-eight hours was without good cause.

Referee’s Decision: Claimant, with good cause, refused to accept a referral to employment. (2/14/45)

Appeal By: Industrial Commissioner

Findings of Fact: Claimant worked for over six years prior to September 24, 1943 for a life insurance company. With the exception of one year, when she performed clerical work, claimant worked as a mimeograph machine operator for this employer. Her work week consisted of thirty-seven hours, five days a week and she earned $29.50 a week plus lunches. At the time claimant left her employment her husband was about to be inducted into military service and he entered the armed forces on November 15, 1943. Claimant stayed at home and remained out of the labor market until the following October. Claimant filed an application for benefits on October 9, 1944. She received eight benefit checks to the week ending December 17, 1944. On December 21, 1944 claimant was referred to a job with the United States Civil Service Commission as a mimeograph operator paying a basic salary of $1440 a year, plus overtime for the excess over forty hours. In this employment claimant would be required to work forty-eight hours for a six-day week. Claimant refused to accept the referral, stating that it would be too great a strain on her to work forty-eight hours a week and that the salary was inadequate. She stated that she was willing to work forty hours a week. On December 28, 1944 claimant was interviewed at the local office regarding the job refusal. Claimant offered to produce medical evidence in support of her contention that the work offered was too strenuous for her and referred the local office to a doctor who had treated her. The local office communicated with the doctor in order to obtain information concerning any physical restrictions on claimant’s ability to work. He informed the local office that claimant was not under his care. The local office thereupon issued an initial determination hold that claimant, without good cause, refused to accept a referral to employment. Claimant requested a hearing stating "I don’t want a 6 day week job." Claimant is twenty-eight years of age. She last visited a doctor prior to her separation from employment in September 1943. She admitted that she did not suffer from any physical impairment which prevented her from working forty-eight hours a week. She testified that mimeographing work required constant standing and that on the basis of her previous experience it would be too strenuous to work in excess of forty-hours a week in that line. No medical or other evidence was produced by claimant in support of her contention.

Appeal Board Opinion: The referee ruled that claimant’s refusal of the job offer was with good cause because the working time was too long and therefore the job would be too strenuous for her. We failed to find any support in the record for the conclusion reached by the referee. The fact that during her last employment claimant was transferred from the mimeographing to another department lends little support to the referee’s conclusion, since the record shows that claimant at her own request was transferred back to mimeograph work and performed that work for the entire last year of her employment. Furthermore, this occurred some fifteen months prior to the referral in question. Claimant’s principal objection to the job offer appears to be that it called for a six-day work week of forty-eight hours. She failed to show the existence of any valid circumstances either economic, domestic or relating to her physical condition which constituted a sound or sufficient reason for restricting her hours of work. Her contention that she gave up her last job because the work was too strenuous was negated by her own testimony and by the written statement of the physician who allegedly advised her to take that step. The job offer in question was with the United States Government and paid at least the equivalent of claimant’s last earnings. It cannot be said that as to this claimant the forty-eight hour work week entailed any unusual or exorbitant requirement. Under all the circumstances herein it must be held that none of the reasons advanced by claimant for her refusal of the job offer constituted good cause within the meaning of the Unemployment Insurance Law. (See also Appeal Board, 7853-42).

Decision: The initial determination holding that claimant, without good cause, refused to accept a referral to employment is sustained. The decision of the referee is reversed. (5/7/45)




A-750-640
Index No. 1210A-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

June 21, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Other Reason for Refusal

Appeal Board Case No. 11,590-45

REFUSAL OF EMPLOYMENT – INDEFINITE STARTING DATE

A referral to part time sales work to commence at an undetermined future date, the actual hiring to be done at that later date, was not a firm offer of or referral to employment. Disqualification from benefits cannot rest on such referrals.

Referee’s Decision: Claimant, without good cause, refused to accept an offer of employment for which she was reasonably fitted by training and experience. (1/10/45)

Appeal By: Claimant

Findings of Fact: Claimant has resided in Hamburg since 1939. Prior thereto she resided in Buffalo where she worked as a coat and dress saleslady in a department store. For eight months prior to April 1, 1944 claimant worked at a war plant in Buffalo located ten miles from her home. At the date of her separation she earned $56.68 a week. She left this employment because her husband became ill and required her attention. On September 26, 1944, after her husband had recovered and returned to work, claimant filed application for employment and unemployment insurance benefits. She was given the occupational classification of a sales person by the United States Employment Service. On November 3, 1944 claimant was referred to a job as a saleslady in a department store in Buffalo, where she had formerly worked. She reported for an interview at the prospective employer’s establishment. She was informed that the job in question was for part-time sales work during the Christmas holiday season and that there would be openings about November 23, 1944. The rate of pay was $20 for a forty-four hour week. The round trip fare from Hamburg to Buffalo is thirty-two cents a day. Claimant refused to consider this offer on the ground that she was seeking steady work and that the rate of pay was inadequate. On November 22, 1944 an initial determination was issued that claimant refused, without good cause, to accept an offer of employment. Claimant requested a hearing on the ground that the job offer was for part-time work only. Claimant has continued to report weekly at the insurance office and at the United States Employment service as required. She is willing to work in Buffalo and has applied for work at three different war plants. She will accept work in a department store if she is offered a steady position. No other offers of employment have been made to claimant by the United States Employment service other than the one mentioned.

Appeal Board Opinion: The only issue on appeal is whether or not claimant had good cause to refuse the offer of employment on November 3, 1944. In the first place this offer called for part-time work to commence about three weeks later and was contingent upon her hiring at such time. We are not prepared to say that such an offer, projected in the future and uncertain in its terms, can be made the basis for a disqualification under the Unemployment Insurance Law. Even if a firm offer of employment were involved, the low rate of pay was grossly out of proportion to claimant’s latest earnings and the transportation expense was excessive in view of the salary offered. Furthermore, it is doubtful whether the type of work offered was commensurate with claimant’s past experience as a saleslady of high grade coats and dresses. It must be held that claimant had good cause to refuse the referral. Some question has been raised as to claimant’s availability. We believe that the evidence establishes beyond a doubt that claimant was ready and willing to work. She has no domestic circumstances which would interfere with her working. She has expressed a willingness to work in Buffalo; she has made independent efforts to obtain work in war plants.

Decision: Claimant did not, without good cause, refuse to accept an offer of employment. The initial determination is overruled. The decision of the referee is reversed. (3/26/45)




A-750-642
Index No. 725.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 27, 1945

INTERPRETATION SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Mental ability

Appeal Board Case No. 11,1759-45

CAPABILITY - MENTAL ABILITY - EMPLOYMENT RESTRICTION

Claimant, afflicted with a mental illness, whose only work experience was with the aid and help of his brother during the canning season and who refused to accept other canning jobs, was held to be incapable of performing work which there was a reasonable possibility of obtaining.

Findings of Fact: A hearing was held herein at which the claimant, his representative and a representative of the Industrial Commissioner appeared, and testimony was taken. Claimant, 32 years of age, was employed for three seasons as a cannery laborer at a cannery located in Mt. Morris, New York. Prior to this employment the claimant had never worked because of a mental illness. While thus employed he worked with his brother who operated a filling and capping machine. Claimant’s duties consisted of removing the filled and capped cans from a table into a steel basket. Claimant’s brother watched over him and saw that he properly performed the work. At the end of the season, when the filling and capping machines were no longer used, claimant was transferred to other work, but was unable to perform the duties required of the job and was laid off. Claimant filed an application for benefits on December 20, 1944, and has reported to date. On January 8, 1945, he was offered referral by the United States Employment Service to employment as a cannery laborer at a cannery located at Rochester, New York. The prospective employer furnished bus transportation to its plant. Claimant refused to accept the referral stating to the effect that he was unable to accept any employment unless he could work in a job where his brother could assist him and watch over him. The local office issued an initial determination holding claimant ineligible for benefits effective January 8, 1945, on the ground that claimant was unavailable for and incapable of employment. Claimant requested a hearing. The claimant’s brother with whom he worked appeared at the hearing. He stated that due to his brother’s condition he was not able to perform any work without his guidance and supervision.

Referee’s Opinion and Decision: Cclaimant’s only work experience has been with the aid and help of his brother. Without this assistance the claimant is unable to perform any work. It is clear from the record that claimant, except during the canning season when he is able to work with his brother, is incapable of performing work such as there may be a reasonable probability of obtaining. I hold, therefore, that the claimant was not available for and capable of employment within the meaning of the statute. The initial determination herein is sustained. (2/27/45)

Appeal By: Claimant

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issues involved in this case.

Appeal Board Decision: The decision of the referee is affirmed. (4/3O/45)




A-750-644
Index No. 1215C-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 27, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Delay in Acceptance

Appeal Board Case No. 11,835-45

ACCEPTANCE OF REFERRAL – DELAY IN KEEPING APPOINTMENT WITH EMPLOYER

Claimant, who accepted referral but failed to keep an appointment to see the employer the following morning, but telephoned the employer in the afternoon at which time the position was filled, was properly disqualified for refusal of employment without good cause.

Findings of Fact: a hearing was held herein at which the claimant and representatives of the Industrial Commissioner and of the United states Employment service appeared and testified. Claimant has been working as a stenographer since May 1942 when she returned to the labor market. She earned $25 a week until she went to work for a hotel in October 1943. At this ob she earned $28 a week. Claimant worked there until December 16, 1944, when she became ill. Prior to her marriage nine years ago, claimant earned $35 a week, plus an annual bonus of $200. Claimant filed for benefits on January 10, 1945, and certified to unemployment through February 11, 1945. On January 24, 1945, an initial determination was issued disqualifying claimant from receiving benefits, effective January 11 because she refused employment without good cause. On February 7, 1945, a further initial determination was issued disqualifying claimant, effective February 1, because she refused employment without good cause. Claimant objected and requested a hearing. On January 11, 1945, the Employment Service offered claimant two jobs as stenographer, one paying $35 to $37.50 a week and the other paying $32 a week. Claimant went out on the first referral on that day, but did not report to the employer when she found that his office was located on the 46th floor. Claimant did not want a job above the 15th or 16th floor because she has found that greater heights cause a pressure in her ears. With reference to the second referral, the Employment Service interviewer had made an appointment for the employer to interview claimant the following morning at 11:30 a.m. Claimant failed to keep this appointment. Claimant explained that she went out that morning for three interviews in answer to newspaper advertisements, and did not get through with the interviews until the afternoon. She then called the employer to whom she had been referred by the Employment service, and was told that the job had been filled. She was advised to call back again in a few weeks. On February 1, 1945, the Employment Service offered claimant another job as stenographer paying $140 a month. Claimant refused this referral because the employer’s office was located on the 45th floor. Claimant has never been under a doctor’s care in connection with her complaint that she cannot work above the 16th floor. She has not submitted a medical certificate to substantiate her contention. About February 14, 1945, claimant telephoned the second employer to whom she had been referred by the Employment Service on January 11. Claimant obtained the position and has been working for this employer since February 19th.

Referee’s Opinion and Decision: Claimant’s failure to keep the appointment made by her by the Employment service interview on January 11 shows that she failed to make reasonably diligent efforts to obtain the job to which she was referred. By her failure to keep that appointment or to contact the employer on time, claimant in effect failed to accept employment within the meaning of the Law. I cannot credit claimant’s contention that she was occupied in looking for a job through newspaper advertisements. The appointment had been made specifically for claimant at a fixed time. Her failure to keep this appointment, under the circumstances in this case, was a proper basis for disqualification for failure to accept employment. In view of this decision, it is not necessary to inquire into the reasons given by the claimant for refusing the other jobs offered to her. The initial determination disqualifying claimant, effective January 11 is sustained. (3/13/45)

Appeal By: Claimant

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issues involved in this case. Claimant was referred to the job in question on January 11, 1945. An appointment had been made by her to be interviewed by the prospective employer on January 12. She chose to look other places for employment. She was unsuccessful. On February 19, 1945, she was employed by the same employer. It appears, therefore, that she was out of work from January 12, 1945 to February 19, 1945 by reason of her failure to keep the appointment on January 12, 1945.

Appeal Board Decision: The decision of the referee is affirmed. (4/30/45)




A-750-646
Index No. 1215C-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

July 27, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Other Reason for Refusal

Appeal Board Case No. 11,085-44

FAILURE TO REPORT TO EMPLOYER- CONTENTION OF PREVIOUS CONTACT – WOULD BE CALLED IF AND WHEN NEEDED.

When claimant failed to personally report to prospective employer for interview after the acceptance of referral card, contending that she had previously visited the employer and was informed that she would be called if and when needed, it was held that the failure to report was refusal of referral without good cause.

Findings of Fact: A hearing was held herein at which the claimant and a representative of the Industrial Commissioner appeared and testified. Claimant, a cannery worker, filed an original application for benefits on June 7, 1943. On September 8, 1943, the local office issued an initial determination holding claimant to be ineligible for benefits on the ground that she was unavailable for employment. Claimant did not contest this determination. Claimant reinstated her claim for benefits on March 21, 1944. During the 1943-1944 benefit year, claimant has received 12 benefit checks in the amount of $12 each. Claimant resides at Naples, New York. She was last employed in July 1, 1943 as a cannery worker at Rushville, New York. On April 10, 1944, the local office referred claimant to the Widmer Wine Company, Naples, New York for factory or vineyard employment. Claimant accepted the referral and visited the prospective employer's establishment. She was not hired at that time because there were no jobs available. During the week prior to May 8, 1944, a representative of the Widmer Wine Company contacted the local office and requested that workers be referred for employment in the company’s vineyards in tying grapes. On May 8, 1944, the local office instructed claimant to report to the prospective employer for employment. Claimant failed to report to the employer. Her reason for failing to report was that when she had visited the prospective employer in April 1944, the employer’s representative informed her that she would be called if and when needed. Claimant has had no employment since July 1943. She left her employment at the cannery in Rushville, New York in July 1943 because the person with whom she rode to work quit her employment, and she had no means of transportation. She allegedly could not use the family automobile to transport her to and from her employment because of the poor condition of the tires. Despite the fact that new tires were secured by the claimant for the family automobile on December 1, 1943, she did not reapply to her former employer for employment, although the cannery was in operation until about February 7, 1944.

Referee’s Opinion and Decision: Claimant’s entire course of conduct throughout her period of unemployment leads me to conclude that her efforts to obtain employment were not sincere. Her acceptance of the referral from the local office representative without protest and her subsequent failure to report to the prospective employer regarding the job opening, indicates that claimant was not anxious to secure employment. Prior to the referral in question, she claimed to have had no means of transportation to the cannery where she was formerly employed. When given referral to employment in the vicinity in which she resides, she failed to contact the employer. Testimony of the local office representative was to the effect that the prospective employer, on May 8, 1944, was urgently in need of workers and that there was a job available for the claimant had she reported to the employer as instructed. The reason advanced by claimant for her failure to report to the prospective employer for an interview cannot be accepted. The initial determination issued by the local office disqualifying claimant from receiving benefits effective May 8, 1944, on the ground that she without good cause refused referral to employment, is sustained. (6/27/44)

Appeal By: Claimant

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issues involved in this case.

Appeal Board Decision: The decision of the referee is affirmed. (9/11/44)




A-750-657
Index 795.7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

AUGUST 1945

INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Effort and Willingness to Work

UNWILLINGNESS TO WORK PENDING PROCESSING OF CIVIL SERVICE APPLICATION

Claimant who did not desire employment during the pending of an appointment to a civil service position was held unavailable.

A.B. 11,868-45

Referee's Decision: The local office determination that claimant was unavailable for employment is sustained. (3/14/45)

Appealed By: Claimant.

Findings of Fact: Hearings were held at which representatives of the Industrial Commissioner and the United States Employment Service appeared and testimony was taken. Claimant's testimony was taken through interrogatories at a hearing in Washington, D.C. Claimant, a stenographer, filed a claim for benefits at Bayshore, New York, effective October 2, 1944, and certified to unemployment through the week ending October 29, 1944. The local insurance office issued an initial determination disqualifying the claimant from receiving benefits as of October 2, 1944, on the ground that claimant was not available for or capable of employment. Claimant contested this determination and requested a hearing. In September 1944, the claimant was employed as a stenographer by the Vanadium Corporation of America in New York City. Sometime during 1942, the claimant passed a civil service examination for the position of stenographer with the federal government. On or about September 7, 1944, the claimant received an inquiry and an offer of employment as a stenographer with the Department of State at Washington, D.C. She made application to the War Manpower Commission in New York City on September 11, 1944, for a statement of availability to obtain the government job, which was granted to her on September 14, 1944. Her employer, thereupon terminated her employment. She last worked on September 22, 1944, but her employer paid her wages to the end of the month. On October 4, 1944, the State Department advised the claimant that the release or statement of availability had been received and that it would take two to three weeks to process the appointment. Claimant commenced working for the State Department on November 2, 1944. On October 3, 1944, the claimant was interviewed at the local insurance office and signed a statement, part of which stated:

"I do not want employment now. I will look for a job only if my
application with the Civil Service Com. falls through. I desire
to wait a reasonable length of time until I have a reply from the
State Department before I accept a position here."

On October 17, 1944, the claimant was again interviewed at the local insurance office and stated in part as follows:

"I have been in touch with the State Dept. and I have a letter
dated October 14, 1944 which indicates that the Dept. is waiting
for the Civil Service Commission to approve the appointment. I
do not seek work now because am waiting for this appointment and
my 'release' is not good in this area. The 'release' is confined
to that position in Washington only. *** I would not accept a job
today other than the above cited job."

At that interview, the local insurance office directed the following question to the claimant:

"Do you wish to apply for a new release today so that the area in which you may work will include this area or New York City and so
that you may be able to accept other jobs with other employers?"

The claimant answered as follows:

"No, I believe the need for stenographic help is greater in
Washington where there is a shortage of labor, as stated by
the W.M.C. to me when I obtained my statement of availability."

Claimant now contends that she was not told about the possibility of temporary work and would have accepted temporary work if offered to her before she left for Washington, D.C. The report of the United States Employment Service interviewer in Bayshore states:

"Claimant states that she has a civil service job pending and does not wish to apply for work in this area."

Referee's Opinion and Decision: Upon evidence submitted, I am of the opinion that the claimant was not available for employment. The Unemployment Insurance Law provides for the payment of benefits to unemployed workers who are capable of and available for work. Although the claimant now contends that during the period she certified for unemployment at the local insurance office she would have accepted temporary work pending her appointment to the State Department in Washington, D.C., her statements given to the local office personnel is to the contrary. On October 3, 1944, when she was first interviewed, the claimant stated that she did not want employment and would look for a job if her application for the federal job fell through or after she had had a reply from the State Department. On October 4, 1944, the claimant was advised by the State Department that it would take several weeks to process the appointment. When interviewed again on October 17, 1944, the claimant again stated that she would not accept any other employment in the local area because she intended to go to the job in Washington, D.C. While the claimant's desire to work in Washington, D.C. is commendable because of the noteworthy shortage of clerical and stenographic workers in that locality, nevertheless, in view of the fact that she indicated that no employment would be acceptable to her, she is deemed unavailable for employment and, therefore, ineligible for benefits. The initial determination is sustained.

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issues involved in this case.

Appeal Board Decision: The decision of the referee is affirmed. (6/25/45)




A-75O-664
Index No. 725.6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 12, 1945

INTERPRETATION SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Health

Appeal Board Case No. 11, 963-45

AVAILABILITY -CLAIMANT WHO ENTERED VETERANS FACILITY FOR DOMICILIARY CARE

Entering a veterans’ domiciliary home for a rest and on the basis of proving inability to work establishes unavailability.

Referee’s Decision: The initial determination of the local office holding that claimant was unavailable for employment is overruled.

Appeal By: Industrial Commissioner

Findings of Fact: Claimant is sixty-five years of age and a veteran of World War I. He is a carpenter by trade. He entered the Veterans’ Facility at Bath, New York, for medical treatment in November 1943. He was confined to the hospital there for five weeks and subsequently resided at the domicile of the facility until July 1944 when he returned to work. He became separated from his employment on November 10, 1944, and re-entered the Facility on November 14, 1944. The regulations of. the Veterans' Administration with respect to the requirements which must be met by the veterans to entitle them to hospital treatment and domiciliary care as follows:

"Veterans who served during a period of war who were ( 1) not dishonorably discharged from their last period of war service; (2) who swear that they are unable to defray the expense of hospitalization or domiciliary care, including the expense of transportation to and from a Veterans’ Administration facility; and (3) who are suffering from a disability, disease or defect which, being susceptible of cure or decided improvement, indicates need for hospital cure, or which, being essentially chronic in type and not susceptible of cure, or decided improvement by hospital care, is producing disablement of such degree and of such probable persistency as will incapacitate from earning a living for a prospective period, and thereby indicates need for domiciliary care."

Claimant filed a claim for benefits and registered for employment on December 11, 1944. On or about February 16, 1945 the local office received a statement from the Chief Medical Officer attached to the Facility to the effect that claimant’s ailment was diagnosed as "psychosis, post-traumatic, in remission; senility," and that claimant is "unable to carry on a gainful occupation." On March 1, 1945 the local office issued an initial determination holding that claimant was unavailable for employment effective January 18, 1945. Claimant was charged with an overpayment of’ $54.00 for the three weeks of certified unemployment ending January 11, 1945. Claimant protested end requested a hearing. He contend that he entered the Facility for the purpose of a residence during a period of unemployment and that he was available for work. Claimant's testimony at the hearing before the referee indicates otherwise. It follows:

"Q. During the time when it's slack in your trade would you be willing to take employment in other occupations?

A. Yes.

Q. Why didn't you go up to Rochester then during the winter time to see if you could find anything up there?

A. I don't know. Well, I worked pretty hard last fall is one reason on that job, and I lost about 20 pounds and I thought I would go down to Bath and rest up.

Q. So when you went to Bath you went to rest up. Is that right?

A. Yes, get my weight back. I done pretty hard work there that summer and the snow came so deep, and there was another man in Canandaigua he had some house work and his lumber was all buried in the snow so we thought we would let it go until spring."

Appeal Board Opinion: We must assume that the claimant, upon making application to enter the Facility, was required to prove to those in charge there, that he was unable to work, in accordance with the above regulation, since he was admitted four days after he became unemployed. While it may be that the rule was in some degree relaxed in his case, his testimony is clear as to his reason for making application for admission. He is sixty-five years old. He worked hard last fall. He lost twenty-pounds. He needed a rest, and he wanted to regain his lost weight. Because of these and other circumstances, he and another person who had some house work to do "thought we would let it (the work) go until spring." We believe the referee erred in his conclusion. Under the circumstances herein it must be held that claimant was not available for employment during the period in question.

Decision: The initial determination of the local office holding that claimant was unavailable for employment is sustained. The decision of the referee is reversed.




A-750-665
Index No. 1210A-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

September 12, 1945

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

Appeal Board Case No. 11,957-45

REFUSAL OF REFERRAL FOR INTERVIEW TO DETERMINE EXACT WAGE RATE

A firm offer of a wage with an assurance of more if experience warranted it necessitated inquiry by the claimant of the employer to ascertain the exact wage that would be paid him. Refusal to accept referral and make such inquiry was without good cause.

Referee’s Decision: The initial determination of the local office holding that claimant, without good cause, refused an offer of employment for which she is reasonably fitted by training and experience is overruled. (4/28/45)

Appeal By: Industrial Commission

Findings of Fact: Claimant is married and resides with her husband and two children, nineteen and twenty years of age, respectively. One of the two children is gainfully employed. For twenty years claimant had been a housewife and out of the labor market. About June 1943 claimant re-entered the labor market. For eighteen months prior to January 3, 1945 claimant had been employed as a drill press operator by a single employer. She commenced this employment at the rate of sixty cents per hour and at the time of the termination thereof she was paid eighty-five cents per hour. Prior to her marriage claimant had been employed in the garment industry. On January 22, 1945 claimant filed an application for benefits and reported continuously to the date of the hearing before the referee which was on April 20, 1945. The United states Employment Service made special efforts to obtain a job for claimant at a rate of pay which would approximate her final earnings with her last employer. On March 16, 1945 the placement interviewer of the United States Employment service, in claimant's presence, solicited a job offer as drill press operator by telephone. The prospective employer started operator-trainees at seventy-five cents per hour. When apprised of claimant’s experience, he stated that he might pay more to an experienced drill press operator. Claimant was directed to report to the prospective employer for an interview. She refused. A Report of Possible Disqualifying Conditions was made to the local office. Based on the said report and an interview at the local office, a disqualification was imposed against the claimant for refusal of the job. Claimant contested the determination and demanded a hearing. At the hearing claimant contended that she was not apprised that the employer might pay more than seventy-five cents per hour to an experienced drill press operator. The referee overruled the initial determination and the Industrial Commissioner appealed.

Appeal Board Opinion: The referee based his decision on the fact that the United States Employment Service failed to obtain from the prospective employer the exact rate of pay he would be willing to pay to an experienced drill press operator. The referee reasoned that by virtue thereof claimant was not apprised of the precise terms of the job offer. We believe that the referee labored under a misconception. There was a firm offer from the prospective employer of at least seventy-five cents per hour. He was willing to pay more to an experienced drill operator. The additional amount that the employer would be willing to pay would depend upon the experience of the claimant, which the employer could determine only at an interview. The refusal of the claimant to appear for an interview to ascertain the amount that the employer was willing to pay was unreasonable and amounted to a refusal of the job offer. Claimant’s contention that she was not apprised that the employer was willing to pay more to an experienced drill operator is incredible. A job order was prepared at the time the solicitation was made and such order indicates that the employer "might pay more for experience." The telephone conversation took lace while she was with the placement interviewer.

Decision: Claimant, without good cause, refused an offer of employment for which she is reasonably fitted by training and experience. The initial determination of the local office is sustained. The decision of the referee is reversed. (7/20/45)




A-750-666
Index No. 1280-10
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

September 12, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Distance – Traveling Time

Appeal Board Case No. 12,045-45

REFUSAL – TWO HOURS TRAVELING TIME – MISDIRECTION BY U.S.E.S.

Refusal of employment because it took two hours to reach the employer’s establishment as directed by the placement interviewer, although the distance could have been covered in one hour by a different route, was with good cause as claimant knew of no shorter route and relied upon directions.

Referee’s Decision: the initial determination of the local office holding that claimant without good cause refused an offer of employment is overruled. (5/22/45)

Appeal By: Industrial Commissioner

Findings of Fact: Claimant was employed for over one year as an inspector at a war plant near her home in Buffalo at $1.04 an hour. She filed application for employment and unemployment insurance benefits on October 5, 1944. On February 9, 1945 claimant was referred to a radio plant as an inspector at the rate of sixty cents per hour and piece work. Claimant accepted the referral and followed the directions given her at the placement office. The trip to the plant took her about one hour and fifty minutes and she refused the job on the ground that it was too far from her home. An initial determination was issued holding that claimant, without good cause, refused an offer of employment. Claimant resides in the easterly section of Buffalo in the vicinity of a cross town bus line. She did not know of any means of getting to the plant of the prospective employer other than the directions given her. Testimony was given at the Board hearing to the effect that claimant could have reached the prospective place of employment within an hour by using three different bus lines. The route over which she was instructed to travel took her in the wrong direction and called for a transfer at a point in the northeasterly section of Buffalo where the bus service was poor.

Appeal Board Opinion: Relying upon the directions given her by the placement officials claimant in good faith called at the plant of the prospective employer. She refused the offer of employment after she found that this route consumed almost two hours of her time in reaching the employer’s plant. Under these circumstances we hold that claimant had god cause to refuse the offer of employment.

Decision: Claimant had good cause to refuse the offer of employment. The local office determination is overruled. The decision of the referee is affirmed. (7/20/45)




A-750-667
Index No. 755A-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

SEPTEMBER 17, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Restriction of Employment work, Nature of

Appeal Board Case No. 11,975-45

AVAILABILITY – RESTRICTION OF EMPLOYMENT – Work, Nature of

A long experienced sheetmetal worker and layout man was held to be unavailable because he restricted his employment to work as a layout man only when employment as a sheetmetal worker was available and there was a dearth of jobs as layout men.

Findings of Fact: Hearings were held at which the claimant, his union representative, and representatives of the Industrial Commissioner and of the United States Employment Service appeared and testified. Claimant, a sheet metal worker and layout man, filed an additional claim for benefits on December 4, 1944. He reported continuously thereafter for a sufficient number of weeks to exhaust his benefit account. On February 19, 1945, initial determinations were made (a) that effective February 2, claimant was ineligible for benefits because he was unavailable for employment, and (b) that effective February 9, claimant was disqualified from receiving benefits because he had refused employment without good cause. The claimant objected and requested a hearing. As of February 2 claimant had received 17 benefit payments at $18 each. Claimant has been a sheet metal worker all his working life. He has been a member of Local 28 of the Sheet Metal Workers' Union since 1906. Most of his work in later years has been as layout man. When required he will do the work required of a sheet metal worker. With one exception, he has always worked at the established union rate of pay, which since January 1,1942, has been $2 an hour. On February 2, 1945 when he indicated to an interviewer in the Employment Service office that he was unwilling to work at less than $2 hourly, a report of that fact was made to the local insurance office, which thereupon issued the initial determination that the claimant as not available for employment. On February 9,1945, employment was a layout man with some of the tasks usually done by a sheet metal worker, was offered claimant by the Employment Service. The wage rate was up to $1.50 hourly and was in an open shop. Claimant's fitness for the work is not questioned. Claimant refused to accept the employment because he would not work in a non-union shop or at less than the union rate of pay, because in doing so he would .jeopardize his union status. He would in fact have been subjected to disciplinary action by his union, if he had accepted the employment. Except on exceedingly rare occasions, the Employment Service cannot provide claimant with work In union shops at the union rate of pay. He can obtain such work only through the efforts of his own union. As of February 2, 1945, there was considerable work for sheet metal workers available in the union. Only a negligible percentage of union members was then unemployed, either because they were too old or incapable of employment. Claimant could have participated in such work but he restricted the work he was willing to do to that of layout man only. This was his own personal preference and was not made at the request or order of his union, which would have been willing to provide him with work as a sheet metal worker had he been willing to accept it. There was a scarcity of jobs requiring the services of a layout man only.

Referee’s Opinion and Decision: The offer of employment made to claimant on February 9 was refused by him with good cause. Claimant has been a union member of long standing. If he had accepted the employment, he would have risked disciplinary action by his union, and his union status. Claimant’s unavailability is not established by his adherence to his union rate of pay since the evidence is clear that practically all sheet metal workers, members of the same union as claimant, are working at that rate of pay, and that there was and is considerable work available at this rate of pay. The credible evidence, however, establishes that claimant had made himself unavailable for employment by restricting work acceptable to him as layout man only. Claimant preferred to wait until work of a particular kind was available to him. While this is his privilege, in doing so he made himself unavailable for employment. The initial determination disqualifying claimant for refusing employment is overruled. The initial determination holding claimant ineligible because of his unavailability is sustained. (4/26/45)

Appeal By: Claimant

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case, except as modified herein.




A-75O-676A
Index No. 720.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 24, 1945

INTERPRETATION SERVICE-BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Governmental Requirements

Appeal Board Case No. 12,251-45

INABILITY TO SECURE FEDERAL HOME WORK PERMIT; RESTRICTION -WORK, NATURE OF

Claimant, a homeworker in the crochet beading industry, having failed to qualify for a federal homework permit in that industry and who nevertheless was unwilling to accept homework employment in other obtainable lines was held to be unavailable for employment.

Referees Decision: The initial determination of the local office disqualifying claimant from receiving benefits on the ground that she was not available for employment is overruled. (8/3/45)

Appeal by: Industrial Commissioner

Findings of fact: Claimant is thirty years of age and the mother of two children. She was a crochet beader homeworker for about twenty years. The season in this industry begins in June and ends in December of each year. She was last employed in such capacity for an embroidery company in New York City in December 1944. As a crochet beader claimant earned as high as $90 a week. She was unemployed from December 1944 to May 1945. For a short period in 1944 claimant worked as a clerk in the post office and for about six weeks ending June 1945 she worked as a clerk for a book publisher. She was compelled to give up these employments due to illness. Claimant filed an application for benefits on June 22, 1945. On the same day claimant signed a statement in the local office which reads as follows:

"I have been a crochet beader since I was 9 years old."

"I was denied a Federal permit recently and tried other homework but am not able to do anything else. I am only able to do crochet beading and will not do any other homework."

The local office thereupon issued an initial determination holding that claimant was unavailable for employment. The basis of the determination was that homework in claimant's line was barred by virtue of a Federal order issued by the Wage and Hour Public Contracts Division and that claimant was unwilling to accept employment in other fields of homework. Claimant contested the determination and requested a hearing. At the hearing claimant submitted a homework permit issued by the Department of Labor to an employer engaged in the embroidery business, dated November 18, 1944, and expiring September 21, 1945. Claimant's application for a homeworker’s certificate was denied by the Federal government because she did not meet the requirements set forth in the regulations governing the employment of homeworkers. Due to her domestic circumstances, claimant cannot accept employment outside of her home. She testified that she objected to going into other fields of homework because the rate of. pay offered was substantially less than that, prevailing in her customary line and that she would not sacrifice the interests of her family for small earnings.

Appeal Board Opinion: The issue to be decided is whether or not claimant was available for employment. The referee resolved the issue adversely to the Industrial Commissioner and rested his decision on the authority of Matter of Smith, 267 App. Div. 468, affirming Appeal Board, 8745-43. We are unable to agree with the referee's conclusion. The case cited by the referee is distinguishable from the instant case. In the Smith case (supra) the claimant was willing to accept any other suitable homework. In the instant case, homework in the crochet beading industry was barred to claimant as a result of an order issued by the Federal authorities, but claimant is not willing to accept other homework. Having been barred from work as a crochet beader and having elected not to accept homework in other lines which there appear to be possibilities of obtaining, it must be held that claimant rendered herself unavailable for employment.

Decision: The initial determination holding the claimant was unavailable for employment is sustained. The decision of the referee is reversed. (10/15/45)




A-750-681
Index No. 1580C-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

December 8, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION, REPORTING &
CERTIFICATION
Misrepresentation or Misstatement
Penalty Period –
Forfeit Effective Days Imposed

Appeal Board Case No. 12,152-45

MISREPRESENTATION – SINGLE OFFENSE, FORFEIT EFFECTIVE DAYS IMPOSED FOR

The maximum penalty of 80 effective days for a single and first offense of wilful misrepresentation was held to be unreasonable and harsh, in the absence of unusual circumstances, and was reduced by the Appeal Board to the minimum penalty, 20 effective days.

Referee’s Decision: The initial determination of the local office reducing the rights to future benefits by imposing a forfeiture of eighty effective days on the ground that claimant wilfully made a false statement in order to obtain benefits, pursuant to Section 594 of the Labor Law, is sustained. (6/12/45)

Appealed By: Claimant

Findings of Fact: Claimant, a bricklayer, was laid off from a construction job on January 8, 1945 because of adverse weather conditions. He was informed that he would be rehired for regular employment within a few weeks. On January 1, 1945 he filed an original claim for benefits and was directed to next report at the local office on January 23, 1945. On the latter date claimant reported at the local office and certified to total unemployment for the statutory weeks ending January 14 and January 21, 1945. On January 30, 1945 claimant was referred to a job as a laborer. He refused to accept the offer of employment on the ground that the offered employment was at a lower skill than that of a bricklayer and on the further ground that he expected to be recalled to this former employer at his usual occupation within two or three weeks. On February 6, 1945, in interviewing the claimant with respect to his refusal of the laborer’s job, claimant disclosed to the local office representative that he had been employed on January 12, 15 and 16, 1945 by his regular employer and had earned the total sum of $39.38 for said three days. As a result of said interview, an initial determination was made by the local office holding that claimant’s refusal was with good cause because of the policy adopted by the Industrial Commissioner not to disqualify construction workers who refuse to accept job offers in a different occupation within thirty days after they file a claim for benefits. At the same time another initial determination was made by the local office reducing claimant’s rights to future benefits by imposing a forfeiture of eighty effective days on the ground that he wilfully made a false statement in order to obtain benefits. Claimant objected thereto and requested a hearing. He contended that he did not originally disclose his earnings because: (1) he worked less than full time on the three days in question; (2) the work was not steady employment; and (3) the two weeks in question were waiting weeks during which he was not receiving any benefits. Claimant felt that under these circumstances there was no requirement in the Law to disclose his earnings to the local office.

Appeal Board Opinion: The initial determination in question herein was made by the local office pursuant to Section 594 of the Labor Law which reads in part as follows:

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

The Industrial Commissioner has never promulgated any Rule, Regulation or administrative Interpretation under this section of the Law. However, the Industrial Commissioner, through the Claims Bureau of the Division of Placement and Unemployment Insurance, has from time to time set forth various staff instructions entitled "Local Office Procedures." The pertinent instructions in effect during the period in question are entitled "Suspensions, Disqualifications and Penalties (Item 1350.1, dated January 20, 1945)" and read as follows:

Penalties for Wilful Misrepresentation

The penalty for wilful misrepresentation is the forfeiture of at least the first twenty but not more than the first eighty effective days following discovery of such offense, according to the gravity of the offense. Such penalty shall apply only once with respect to each such offense. (A reiteration of one false statement is not usually a new or separate offense). An essential factor in determining the gravity of an offense is the number of offenses committed. Offense numbers occur in numerical sequence regardless of the turn of benefit years. For repeated offense, penalties may be imposed according to the following table.

Number of Wilful
Misrepresentations
Forfeit Effective Days
Imposed for each
Separate Offense
Total Forfeit
Effective Days
Imposed
1st offense 20 20
2nd offense 24 44
3rd offense 28 72
4th offense 32 104
5th offense 36 140
6th offense 40 180*
7th offense 44 * Theoretically this column could be further accumulated but as the law restricts the unserved penalty to the benefit year in which the offense occurred and the following benefit year, the maximum cumulative penalty is 160 effective days (20 weeks x 4 effective days x 2 years).
8th offense 48
9th offense 52
10th offense 56
11th offense 60
12th offense 64
13th offense 68
14th offense 72
15th offense 76
16th offense 80
Each succeeding offense 80

The first issue presented herein is whether or not claimant "wilfully made a false statement to obtain any benefit" under the provisions of the Unemployment Insurance Law. On this issue we concur with the conclusion of the referee. The reasons advanced by the claimant are insufficient to excuse his failure to divulge his earnings on the three days in question. We hold that claimant wilfully made a false statement in order to obtain benefits. The second issue presented is whether or not the penalty imposed against the claimant for his offense was proper. Section 594 provides for a penalty of "at least the first twenty but not more than the first eighty effective days." It is clear from a reading of the section that the precise number of effective days to be imposed as a penalty in a particular case is to be determined, in the first instance, by the Industrial Commissioner, in the exercise of his sound discretion. It is axiomatic that such discretion must be reasonably exercised. In the numerous cases under this section of the Law which have been appealed to the Board, the penalties imposed by the various local offices throughout the state have been in conformity with the schedule set forth in the aforesaid "Local Office Procedures," that is, twenty effective days for the first offense, forty-four effective days for the second offense, seventy-two effective days for the third offense, etc. We know of no case where the maximum penalty of eighty effective days was imposed against a claimant for one offense. It is significant that said "Local Office Procedures" provide that "An essential factor in determining the gravity of an offense is the number of offenses committed." In the instant case, the maximum penalty permitted by the statute was imposed. This was done despite the fact that the offense in question was claimant’s first and only offense. The record is barren of any explanation of why the maximum penalty was imposed in this case. Claimant’s offense was no more flagrant than usual. There are no unusual circumstances present to warrant a deviation from the usual procedure. We find that the imposition of a penalty of eighty effective days against this claimant was arbitrary, unreasonable and harsh. There appears to be an abuse of discretion by the local office representative, a subordinate of the Industrial Commissioner. (See our opinion in Appeal Board, 10,076-43 which is hereby incorporated by reference, as if fully set forth herein). The proper penalty under the facts herein is twenty effective days.

Decision: Claimant wilfully made a false statement in order to obtain benefits. Claimant’s future benefit rights are hereby reduced by twenty effective days. The initial determination made by the local office and the decision of the referee are modified accordingly. (9/19/45)




A-750-683
Index No. 1290B-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

December 8, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Wages – Prevailing

Appeal Board Case No. 11,354-44

PREVAILING WAGE, DEFINITION OF

Wages offered being less than the wages being paid to the majority of employees actually engaged in work of a like nature in the locality constituted good cause for refusing employment even the offered wages were equal to those being offered to new employees.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving any benefits on the ground that on September 7, 1944 claimant, without good cause, refused to accept an offer of employment for which she is reasonably fitted by training and experience is sustained. (10/11/44)

Appeal By: Claimant

Findings of Fact: Claimant filed an original claim for unemployment insurance benefits and registered for employment at the United States Employment Service on August 16, 1944. She was given the occupation code of "assembler" by the United States Employment service. On September 12, 1944 the local office issued an initial determination, effective August 16, 1944, disqualifying claimant from receiving benefits for six weeks on the ground that she voluntarily left her employment without good cause. On the same date the local office issued another initial determination disqualifying claimant from receiving benefits on the ground that, without good cause, she refused to accept referrals to employment on August 30, 1944 and on September 7, 1944. Claimant objected to the initial determinations and requested a hearing. The referee overruled the initial determinations holding that, without good cause claimant voluntarily left her last employment, and that, without good cause, she refused a referral to employment on August 30, 1944. He sustained the initial determination holding that, without good cause, claimant refused to accept a referral to employment on September 7, 1944. The claimant appealed from the latter part of the referee’s decision. There is no appeal from that part of the decision overruling the first and second initial determinations. Claimant lives in Brooklyn. She had been employed for about one year as a drill press operator and as a main assembler by the X Company in Brooklyn, manufacturer of intricate electrical devices used by the armed forces. In May 1944 the department in which she worked was transferred to Nassau County, Long Island. Claimant accepted employment in the new location. After one week, and on May 16, 1944, she left her job because of the excessive travel, which consumed four and a half hours daily. At the date of her leaving she was being paid at the rate of eighty cents an hour. She worked fifty-three hours a week. Her earnings were $47.60 per week. Before she was employed in the plant she had taken a training course of three weeks at a Brooklyn high school. Her employer paid her at the rate of sixty cents an hour while she was taking such training. On October 18, 1943 her rate was raised to seventy cents an hour; on October 23, 1943, to seventy-three cents; on October 28, 1943, to seventy-five cents and on January 1, 1944, to eighty cents. Claimant worked for one week ending June 6, 1944 as an assembler for another firm. She had been hired at the rate of sixty cents an hour, with time and a half over forty hours for a fifty-three-hour week. After working a few days she was notified that the hours of work were to be reduced by three hours a week, which would reduce her weekly earnings from $36.60 to $33.90. She objected to the reduction and spoke to the employer. She was told that her rate of pay would not be reviewed until after three months work, and that she might then receive an increase, depending upon the quality of her work. She thereupon left this employment. About two months later she filed a claim for benefits and registered for employment. On August 30, 1944 the United States Employment Service offered claimant a referral to employment as an assembler at sixty cents an hour for a forty-five-hour week with overtime at time and a half after forty hours. The weekly earnings would have been $28.50. She refused the offer because of insufficient wages. On September 7, 1944 the United States Employment Service offered claimant the same job, except that this latter referral was for a fifty-four-hour week, which would have made her weekly earnings $36.60. Claimant refused the offer and stated that she would not work for less than eighty cents an hour. The local office initial determination disqualifying claimant for refusing this latter referral is the only issue before the Board. Claimant continued to report at the United States Employment Service after the date of her disqualification. She accepted two referrals to employment on September 12, 1944, but was not hired. On September 17 she was referred by the United States Employment Service to the H.A. Corp., Brooklyn, as an assembler at seventy-five cents an hour. Claimant accepted the referral and was hired. Because of material shortage after one week of employment, claimant was transferred to another department in the same plant and her salary was reduced to seventy cents an hour. She continued to work there until she suffered an attack of pneumonia in November 1944. She has been unable to work since. The representatives of the United States Employment Service testified that with few exceptions all employers of assembler pay new workers, starting with them, the beginner’s rate of sixty cents an hour, regardless of the experience of the person as an assembler. The only exceptions to this rule are workers who have highly specialized experience, and whose work in the offered job is identical with their former employment. The referee accepted this testimony as establishing the prevailing rate for assemblers and sustained the initial determination. At the hearing before the Board, an official of a labor union which has contracts with upwards of four hundred employers engaged in the manufacture of electrical equipment of all kinds, testified that this industry is seventy percent to seventy-five percent unionized in the metropolitan area; that the rate for assemblers ranges from seventy cents to $1.17½ per hour; that after two months’ training a person would be classified as an assembler; that a person who has been employed as an assembler for a few months would acquire skill that would be useable by any employer employing assemblers; that all trained assemblers regardless of skill, usually need two or three additional days of training in new shops and that a person with one year's experience as an assembler would be paid an hourly rate of ninety cents in union shops. Replies to inquiries addressed by the Industrial Commissioner to employers of assemblers, introduced in evidence at a Board hearing, contain information with respect to rates paid to such workers. One of these replies, most pertinent here, and coming from a well-known manufacturer of intricate machinery, contains the following:

"As a general rule, a person having experience on assembly work similar to our own, would start at a rate equal to or slightly below the rate being paid such employee by the company formerly employing such applicant. Thereafter, during the first weeks of such person’s employment here, a real effort would be made to evaluate such employee’s services on an objective basis."

We find as a fact that the prevailing rate of wages in the metropolitan area for assemblers of claimant’s qualifications is substantially in excess of sixty cents an hour, and at least seventy cents an hour,

Appeal Board Opinion: The sole issue in this case is whether or not, without good cause, claimant refused to accept an offer of employment on September 7, 1944 within the meaning of Section 593.2 of the Labor Law, the pertinent portion of which reads as follows:

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

* * *

"(d) the wages or compensation or hours or conditions offered are substantially less favorable to the claimant than those prevailing for similar work in the locality, or are such as tend to depress wages or working conditions;"

In order to reach a conclusion as to whether or not the job offered claimant was one which she was justified in refusing without disqualification from benefits under the above section of the Law, we must determine whether or not the wages offered were substantially less favorable to her than those prevailing for similar work in the locality. What definition must be given the clause "wages . . . are substantially less favorable . . . than those prevailing for similar work in the locality . . ."? Is the proper definitional the one urged by the Industrial Commissioner: that the clause means the rate the employer is willing to pay? We think not. We may look to the Labor Law itself for some guidance. The Unemployment Insurance Law, as such, contains no definition of "wages prevailing in the locality." However, the Labor Law (in which the Unemployment Insurance Law is included as Article 18 thereof), at Article 8, Section 220, subdivision 5, defines "prevailing rate of wage," and "locality" as follows, in part:

"a. The ‘prevailing rate of wage,’ for the intents and purposes of this article, shall be the rate of wage paid in the locality as hereinafter defined to the majority of workmen, laborers or mechanics in the same trade or occupation. In the event that it be determined that there is not a majority in the same trade or occupation paid at the same rate, then the rate paid to the greater number in such trade or occupation shall be the prevailing rate, provided such greater number constitutes at least forty per centum of the laborers, workmen or mechanics engaged in such trade or occupation; in the event there is less than forty per centum of the laborers, workmen or mechanics engaged in the same trade or occupation in the same locality paid at the same rate, then the average paid to such laborers, workmen or mechanics in the same trade or occupation shall be the prevailing rate. Laborers, workmen or mechanics for whom a prevailing rate of wages is to be determined shall not be considered in determining such prevailing wage.

"b. The ‘locality’ for the purposes of this article, shall be the town, city, village or other civil division of the state wherein the physical work is being performed."

Comparison of Section 593.2 and Section 220 shows a similarity of language used. Section 593.2 uses the clause "the wages or compensation or hours or conditions offered are substantially less favorable to the claimant than those prevailing for similar work in the locality." Section 220 declares "The prevailing rate of wages . . . shall be the rate of wages paid in the locality." (Underscoring ours.) Although Section 220 deals specifically with the definition of prevailing rate of wages to be paid on public works, it illustrates the complexity of the factors which must be considered, and it does shed some light on the legislative intent with respect to the meaning of the term" prevailing for similar work in the locality" as used in Section 593.2. We are of the opinion that, for the purpose of unemployment insurance, "wages . . . prevailing for similar work in the locality" are determined by the rate being paid to employees of comparable skill actually engaged in similar work. In other words, "wages prevailing for similar work in the locality" are not the wages employers may be willing to pay to new employees, but are the wages being paid to employees actually engaged in work of a like nature in the locality. Webster defines "prevailing" as "prevalent; most frequent; widespread; generally current; applies especially to that which is predominant or which generally or commonly obtains." In the case at hand we have a claimant who refused to accept an offer of employment as an assembler at the rate of sixty cents an hour. She had worked as an assembler for an employer who manufactures complicated electrical instruments. The skill she acquired on this job is useable by other employers. Her wage rate was predicated on such skill and was raised at intervals as she progressed. The testimony shows that there are a large number of employers in the metropolitan area who employ assemblers, and that their wages are predicated on the skills they possess and are increased periodically from the sixty cent minimum beginner rate to the highly skilled rate of $1.17½ per hour. Furthermore, the United States Employment Service itself referred claimant to a job as an assembler at the rate of seventy-five cents an hour. The testimony shows that assemblers with skill comparable to claimant are and were paid more than sixty cents an hour in the metropolitan area at the time the offer was made, and that such sixty-cent rate was substantially less favorable to claimant than the rate prevailing in the locality. We reach the conclusion that claimant did not, without good cause, refuse the offer of employment on September 7, 1944.

Decision: the initial determination made by the local office disqualifying claimant from receiving benefits by reason of said refusal is overruled. The decision of the referee is reversed. (4/9/45)




A-750-687
Index No. 1275A-9
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

December 22, 1945

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

APPELLATE DIVISION DECISION

Matter of Louis Mednick

270 App. Div. 124

REFUSAL OF EMPLOYMENT; PHYSICAL LIMITATIONS, EXPERIENCE AND TRAINING CONSIDERING

A claimant, unable to perform work utilizing highest skills because of physical impairments, is expected to accept referral to employment at a lesser skill and wage consonant with his physical limitations. Thus, where the evidence indicated that claimant was unable to secure work, at his previously acquired highest skill as machinist, because of his physical limitations (diabetes, asthma, and high blood pressure), refusal of employment as stock clerk and inspector of machine parts at reduced wages which would have utilized the claimant’s presently highest attainable skill was without good cause.

Initial Determination: Claimant was disqualified effective January 22, 1945 and February 1, 1945 for refusing employment without good cause.

Appeal By: Claimant

Referee’s Findings of Fact: A hearing was held herein at which claimant and representatives of the Industrial Commissioner and of the United States Employment Service appeared and testified. Claimant has been a machinist for about ten years and has worked on lathes, milling machines, diesel engines and other types of machinery. From 1939 to 1942, he worked in Bridgeport, Connecticut, where he earned $1.10 per hour. Besides operating machines, he read blueprints and used measuring gauges. Claimant was in the army from August 14, 1942, to March 27, 1943. While in the army he was assigned to inspecting airplane parts. Claimant was discharged from the army because of his physical condition. He is suffering from diabetes mellitus, which requires the constant use of insulin and subjects him to the possibility of going into a coma any time. He also has asthma and high blood pressure. Claimant worked for about three weeks in June 1943, as a machinist on bench and engine lathes, at 90 cents an hour. He then worked for about nine months until May or June 1944, on a shipyard job where he started as a machinist at $1.20 per hour. Due to the fact that he could not work the long hours required, he was reclassified as a second class machinist at $1.03 per hour. He was then again reclassified as a helper at 91 cents per hour. Claimant lost this job when he became ill. He tried to find work as a machinist in shipyards but was not hired because he could not pass the physical examination. He then found a civil service job as an inventory checker of parts on board ships. This job paid $2400 per year for a six-day week. Claimant left this job about January 11, 1945, after working about two and one-half weeks, because he did not want to work on ships away from shore in view of his diabetic condition. Besides he was not familiar with some of the machinery on foreign ships. He was offered another civil service job paying $1.12 an hour, but could not accept it because it required night work. Claimant filed for benefits on January 12, 1945 and reported until February 8, 1945. On January 25, an initial determination was issued disqualifying claimant, effective January 22, because he refused employment without good cause. On February 8, a further initial determination was issued disqualifying claimant, effective February 1 because he refused employment without good cause. Claimant objected to both determinations and requested a hearing. Claimant registered at the shipyard office of the Employment Service. In accordance with the policy of the Employment service, machine work was deemed unsuitable for claimant in view of his diabetic condition, since he had to avoid working at a height and he could not work on machines or tools, with the attendant danger of cuts. He was, therefore, transferred to the selective placement section of the Industrial Office of the Employment Service, where he was classified as an unskilled worker. Claimant was referred to a job as inspector. This job was filled when claimant arrived at the employer’s place of business. However, the employer interviewed him and stated that he would call claimant when he had an opening. This employer offered a salary of $1.00 an hour. On January 22, 1945, the Employment Service referred claimant to a job as trainee stock clerk, paying 70¢ an hour, time and a half for overtime. The only requirements for this job were the ability to read and write. There was no physical examination. Claimant was referred to this job because he would only have to handle electric light bulbs, and would not be exposed to machinery or tools. Claimant refused the job because the rate of pay was too low and because it did not use his highest skills. The usual rate of pay for inexperienced stock clerks is 60¢ an hour. Experienced stock clerks earn about 80¢ an hour or higher. On February 1, 1945, the Employment service offered claimant a job as inspector of small parts paying 80¢ an hour with time and a half for overtime. This job involved the inspection of finished parts such as ball bearings and small aircraft parts. A knowledge of measuring instruments was required. Claimant refused this job because he would have to work longer hours and yet earn less money than he had previously earned. He also objected to the job because it would not use his highest skills since it was work on a production line with a micrometer. Claimant contended that as an experienced machinist, he was amply qualified as a first class inspector, since he could handle all types of gauges and measuring instruments. He wanted a job as an inspector of finished parts, on which he could use his prior training and experience. The Employment service representative testified that there is a limited supply of inspection jobs and that specific experience in that particular line is required in order to obtain an inspection job. Trainee inspectors usually start at 60¢ an hour. The rate for experienced inspectors ranges from 80¢ to a dollar an hour.

Referee’s Opinion and Decision: When the two jobs in question were offered to claimant, he had been unemployed and claiming benefits for only a few weeks. Taking into consideration the fact that these jobs would have reduced claimant’s earning capacity, and would not have made use of claimant’s highest skills and experience he had good cause to refuse to accept them. While claimant was unable to continue his regular line as a machinist, he did have valuable training and experience which could be used in other fields of work. He was therefore entitled to a reasonable opportunity to see whether he could find employment more in line with his prior work history, which would still be in keeping with the state of his health. (Appeal Board Cases 9576-43; 10227-43). As the Appeal Board stated in Case 9955-43;

"The fact that the employment offered does not require any training or experience does not fit claimant for the work within the meaning of the Unemployment Insurance Law. The downgrading of claimant as a worker, which is inherent in this offer, is abhorrent to all principles of good labor practices. Furthermore, the Law contains no language out of which can be spelled a requirement that an unemployed highly skilled worker must accept an offer of employment in no way related to his skill and his earning capacity, or suffer disqualification for benefits."

The fact that claimant’s ability to return to his regular line of work was limited by his health does not remove the statutory requirement that claimant be reasonably fitted for the proffered employment. Neither does claimant’s right to benefits depend on the requirement of employers that he pass a physical examination before being hired, nor on the availability of jobs. To base the right to benefits on the existence of job openings would defeat the very purposes of the Unemployment Insurance Law. The initial determinations are overruled. (2/28/45)

Appeal By: Industrial Commissioner

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case.

Appeal Board Decision: The decision of the referee is affirmed. (5/21/45)

Appeal By: Industrial Commissioner

Appellate Division Opinion: The Industrial Commissioner found that claimant was disqualified from receiving unemployment insurance benefits because, without good cause, he had refused employment for which he was reasonably fitted by training and experience. The Referee overruled the determination of the Commissioner and found that the claimant had good cause to refuse to accept the two jobs which were offered to him. The appeal Board affirmed the Referee. Claimant had some physical disabilities. He was not physically capable of utilizing his highest skill and experience. He had been refused employment in one instance because of his physical condition. He was discharged from the Army because of his physical condition. He had worked at different jobs at compensation ranging from 90¢ an hour to $1.20 an hour. While on the job for which he was paid $1.20 an hour as a machinist, he was reclassified as a machinist helper at $1.08 and hour because he was not able to work long hours. Later he was again reclassified as a helper at 91¢ an hour. On January 22, 1945, he was offered a job as stock clerk at 70¢ an hour. This he refused saying: "I will collect all these benefits plus all the veterans’ benefits." These veterans’ benefits were paid to him in the amount of $46 a month. On February 1, 1945, he was offered a job as inspector of machine parts at 80¢ an hour. This he refused, giving as a reason that it did not utilize his highest skill and experience and did not provide adequate salary. He desired a job as first class inspector of finished products for which he said he was qualified. Evidence discloses that trainee inspectors usually start employment at 60¢ an hour. The rate for experienced inspectors ranges from 80¢ an hour to one dollar an hour. The test applied by the Referee and adopted by the Appeal Board in justification of claimant’s refusal to accept the employment offered was that such employment would reduce claimant’s earning capacity and would not make use of his highest skill and experience. This was not the correct test. The Industrial Commissioner found that the two offers made to claimant were for jobs for which he was fitted by learning and experience when his physical limitations were considered, and that they were offers which would utilize his highest skill. The Commissioner therefore found that claimant had refused suitable employment. It would seem that the test used by the Appeal Board is not that contemplated by the statute.

Appellate Division Decision: The order and decision of the Appeal Board should be reversed and the finding of the Industrial Commissioner should be reinstated without costs. (11/20/45)




A-750-688
Index No. 875-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

December 27, 1945

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION, REPORTING &
CERTIFICATION
Seeking Other Employment

Appeal Board Case No. 12,275-45

FAILURE TO REPORT TO PLACEMENT OFFICE – SEEKING OTHER EMPLOYMENT – INSUFFICIENT CARFARE

On his due dates at the employment service office a claimant sought employment elsewhere, and although allegedly lacking carfare, was not excused for his failure to report where it was found that it was possible for him to report, but that he made no effort to do so.

Findings of Fact: A hearing was held at which claimant and a representative of the Industrial Commissioner appeared and testified. Claimant, a milling machine operator, filed a claim for benefits on June 19, 1945, and reported regularly thereafter to August 3, 1945. The claimant was instructed to report to the United States Employment service on June 25, 1945. He failed to do so, reporting instead on June 26, 1945. On the latter date he was instructed by the Employment service to again report on June 28, 1945. He did not report to the employment Service again until July 3, 1945. Claimant has given as his excuse for failing to report as directed that he was seeking employment. On July 24, 1945, the local office rejected the claimant’s excuse and issued an initial determination, ruling claimant ineligible for benefits for the days June 25, 1945, and June 26, 1945, to and including July 2, 1945, on the ground that he failed to comply with reporting requirements. Claimant objected thereto and requested a hearing. During the days herein under consideration, the claimant was seeking employment at the Bethlehem Steel Company and the Brooklyn Navy Yard. During those days he could have reported to the Employment service but made no effort to do so. At the hearing the claimant raised the additional contention that during the days in question, while seeking employment, he did not have sufficient carfare with him to enable him to stop at the Employment service office before returning home. Claimant knew that he was required to report to the Employment Service on the days herein under consideration.

Referee’s Opinion and Decision: Although claimant was sincerely desirous of employment and making efforts to become re-employed, he knew that he was required to report to the Employment service when instructed. Section 590 of the Unemployment Insurance Law provides, in part, that a claimant is entitled to accumulate effective days for the purpose of benefit rights only if he has complied with the reporting requirements in the Law. The Industrial Commissioner’s Regulation 42 provides that a claimant shall report in the Employment service as required. It further provides as follows:

"c. The day on which a claimant fails to report in accordance with this regulation and any subsequent day prior to the date of a report to the placement office shall not be registered as days of total unemployment."

Claimant failed to comply with the Law and the Industrial Commissioner’s regulation regarding reporting to the Employment service. He has presented no facts warranting excusing these failures to report. The initial determination is sustained. (8/15/45)

Appeal By: Claimant

Appeal Board Opinion: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case.

Decision: The decision of the referee is affirmed. (10/30/45)




A-750-689A
Index 770.12
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

DECEMBER 1945

INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Seasonal Employment

REFUSAL OF DISTANT EMPLOYMENT BY SEASONAL CANNERY WORKERS

AVAILABILITY - OPPORTUNITIES EXISTING IN HOME COMMUNITY

Seasonal cannery workers residing in a rural community refused with good cause referral to identical employment ten and twenty miles distant; transportation to be supplied by employers, as acceptance would necessitate approximately thirteen hours away from home each day entailing, because of domestic duties, unwarranted hardship and sacrifice. Unavailability was not attested as some employment, although limited, existed during all periods of the year within the locality where their benefit rights were earned.

A.B. 12,072-45

Referee's Decision: The initial determinations of the local office disqualifying claimants from benefits for refusing, without good cause, to accept referral to employment and, in the alternative, that they were unavailable for employment, is overruled. (6/4/45)

Appealed By: Industrial Commissioner.

Findings of Fact: The thirteen claimants here involved have resided for many years in the rural community of Holley. Most of the claimants have worked for periods ranging from three to twenty years in a local cannery. The usual season in the cannery commences about June and ends late December of each year. On one or two occasions the season was extended to February and March of the following year. All of the claimants filed applications for employment and unemployment insurance benefits at the local office in Batavia in the month of January 1945, with the exception of claimant E.D., who filed on February 5, 1945. On February 20, 1945, nine of the claimants were interviewed with respect to a cannery located in Medina which had openings for a large number of women workers. They were informed that the prospective employer would furnish bus transportation from Holley to the caning plant in Medina, provided there were sufficient workers in Holley willing to work at the plant. Medina is located about twenty miles form Holley. The claimants were informed that a bus would leave from the center of Holley at about 6:00 A.M. and that it would return from Medina to Holley at about 7:00 P.M. daily. Claimants refused to consider such employment on the ground that it was an unreasonable distance from their homes, that their family duties would not permit them to remain absent from their homes for thirteen hours a day and, in some cases, because of particular family responsibilities. On February 27, March 1, March 5 and March 7 others of the claimants were similarly interviewed with respect to prospective employment at Medina. The bus actually ran from Holley to Medina on March 5, 1945 but the service was immediately discontinued by the prospective employer because only a few women were willing to make the trip. Initial determinations were issued by the local office in each case disqualifying claimants from benefits for refusing, without good cause, to accept referrals to employment and, in the alternative, that they were unavailable for employment. On April 10, 1945 several of the claimants were referred to employment at a food processing concern located in Albion, about ten miles from Holley. They were advised that the employer would furnish transportation by private car which would leave Holley at about 6:00 A.M. and return about 6:30 P.M. They refused these referrals on the same grounds as they had refused the previous referrals. Similar determinations were made disqualifying these claimants. Claimants range in age from thirty-nine to sixty-five years. All have household responsibilities. They all stated that the long hours away from their homes would unreasonably interfere with their household duties. Claimant G.M.W., who is a widow, sixty-three years old, resides alone and was unable to leave her home for such an extended period because there was no person to attend to the coal stove which provided heat for her home. Likewise, claimant N.G. had an invalid husband and a sixteen-year old son at home, whom she did not wish to leave for so long a period. Claimant M.S. had an invalid father and two children to care for. In their previous employment these claimants had been able to go home at noon to prepare lunch and to attend to other household duties. The incorporated village of Holley has a population of about 1,200 persons. Its industries include the canning plant at which most of the claimants work, a cider and vinegar plant and a milling organization. The first two plants have year around forces, consisting largely of men. The canning plant employs some women throughout the year, doing labeling, bottling, etc. The cider plant employs a number of women office clerks throughout the year and some women in bottling operations. Food processing operations usually commence in June of each year and at the height of the season from two hundred and fifty to two hundred and seventy-five women are employed in Holley. The village of Brockport is located about five miles from Holley and has several food processing plants and a paper box concern, which employs a large number of women workers. Claimant M.B.S. had worked for two previous seasons in a Brockport cannery and had commuted there daily. Brockport is serviced for employment purposes by a different office of the United States Employment Service than the one at which claimants reported. It does not appear that any attempt was made to place claimants in employment in Brockport. On March 19, 1945 claimant M.S.C. obtained employment in the cider plant in Holley as a bottler. There are ten women working in that department throughout the year and claimant is still employed there. On March 20, 1945 claimant M.A. was called back to work at the canning plant in Holley, transplanting tomatoes in a greenhouse, and she remained at that work until the end of April. On March 27 claimant A.D.L. was called back to work at the same plant at the same type of work. About ten women were called back at that time. On April 12 claimant J.C. obtained employment on a farm transplanting tomatoes plants, at which she worked until the end of the month. Claimant A.M. also obtained employment in April at the same type of work. Claimant I.O. obtained employment on April 18 in Albion, at which she worked until May 15. In this employment she was able to leave Holley at 7:00 A.M. and return by 5:45 P.M., and more recently, she has worked in a cannery ten miles from her home, at which she spent the same hours away from her home.

Appeal Board Opinion: The first question to be decided in all of these cases is whether or not claimants had good cause to refuse the referrals to employment in Medina and Albion. We are of the opinion that they were clearly justified in their refusal to consider such employment. All of these claimants had earned their benefit rights working in Holley or nearby. Not only were the referrals in questions to locations at greater distances from their homes, but it was unreasonable to expect them to spend upwards to thirteen hours each day away from home. All of them had family responsibilities with which their former employment had not interfered. To compel them to accept the referrals would have entailed unwarranted hardship and sacrifice on their parts. Furthermore, it is doubtful whether it can be said, in the case of the Medina referrals, whether any genuine offer of employment was ever made. The bus actually ran on only one day and in many cases that was about two weeks after the so-called referrals and the disqualification of the claimants. We accordingly hold that in each case the claimant did not, without good cause, refuse an offer of employment. It is contended further on the part of the Industrial Commissioner that each of these claimants should be considered unavailable for employment on the ground that no opportunity for work existed in their community during their reporting periods. This contention we are also compelled to reject. The present record establishes that there was some employment in Holley during all periods of the year. It cannot be said that there was no possibility of placing these claimants in employment in Holley or nearby, although it is noted that such opportunities were limited. The fact is that several of these claimants did obtain employment in March and April of 1945 and the rest of them eventually returned to their former employment when the season commenced. No contention is made that these claimants were unwilling to work if employment could be found for them. Upon the facts before us it cannot be said that no labor market existed for them in the place where they were willing to work. We are of the opinion that the referee correctly resolved the question of availability in each case.

Decision: Claimants did not, without good cause, refuse to accept offers of employment. Claimants were available for employment. The initial determinations are overruled. The decisions of the referee are affirmed. Separate orders are to be entered in each case. (11/7/45)




A-750-693
Index No. 1280-11
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

January 18, 1946

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

Appeal Board Case No. 12,132-45

REFUSAL – EIGHTEEN MILES DISTANT – TRANSPORTATION FACILITIES

Refusal of referral to employment eighteen miles from her home was with good cause where claimant had previously worked five miles from her home, the currently severe winter weather made a share-the-ride plan difficult to arrange at the time and there were reasonable possibilities of employment much nearer.

Referee’s Decision: The initial determination of the local office holding that, without good cause, claimant refused an offer of employment for which he was reasonably fitted by training and experience is sustained. (6/16/45)

Appeal By: Claimant

Findings of Fact: Claimant resides in the Village of Ebenezer, which is a suburb located southeast of Buffalo. She is single and lives with her mother. From November 1942 to January 26, 1945 claimant worked in war plants in Buffalo. Prior to that time she was in business. Her last employment was at a distance of five miles from her residence and she was transported to the plant by fellow workers. The trip took about one-half hour. After being laid off from such employment claimant filed application for employment and unemployment insurance benefits on January 30, 1945. On February 6, 1945 claimant was interviewed together with a group of women, at the office of the United States Employment service with respect to employment at a war plant located in the extreme northwestern section of Buffalo. She was informed that the employer maintained share-the-ride plans, which were arranged between workers owning automobiles and those workers residing in the area who had no cars. Claimant refused to consider the employment because it was located eighteen miles away from her residence. The schedules of the public transportation lines operating from the vicinity of claimant’s home are such that it would be impossible to make connections to reach the plant by the starting hour. At the time of the referral weather conditions in Buffalo were severe. During the latter part of January claimant had been laid off for a week from her previous employment because weather conditions prevented the workers from reaching the plant. There were several war plants in Buffalo in much closer proximity to claimant's residence than the plant to which she was referred. She applied for employment at the railroad and the Railway Express Company but was unsuccessful in obtaining a job. In July 1945 claimant applied at an airplane plant for a position as a riveter. However, because of sickness in the family she was compelled to remove herself from the labor market and she did not report to the local office after July 11, 1945. Claimant has since returned to the labor market and through a newspaper advertisement obtained employment as a saleslady on October 6, 1945.

Appeal Board Opinion: The only question in this case is whether claimant had good cause to refuse the referral in question. We cannot agree with the referee that the claimant’s failure to contact the employer with respect to the share-the-ride plan is the determinative factor in the case. Firstly, the employer’s plant was located eighteen miles from her residence, whereas her previous employment was only five miles away. Secondly, it was not contended nor does the evidence support a finding that claimant was unwilling to work. Although the evidence is conflicting as to the amount of time that would be consumed in traveling to the prospective employer’s plant, it does appear that weather conditions were extremely severe at the time so that travel time was purely a matter of speculation. However, claimant had good reason to believe that, because of her recent experience at her former place of employment, she would encounter great difficulties, not only in obtaining transportation, but in maintaining such service. Under all the circumstances of this case, we hold that claimant was justified in refusing the offer of employment.

Decision: Claimant did not, without good cause, refuse to accept an offer of employment for which she was reasonably fitted by training and experience. The initial determination is overruled. The decision of the referee is reversed. (11/7/45)




A-750-697
Index No. 1275A-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE OFFICE
ADJUDICATION SERVICES OFFICE

February 11, 1946

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

APPELLATE DIVISION DECISION

Matter of Heater

270 App. Div. 311

REFUSAL OF REFERRAL TO EMPLOYMENT; QUALIFICATIONS; WAGES – LESS THAN CUSTOMARY

Previous employment as a draught beer salesman at 50 per week did not justify refusal of referral to employment as a bottle beer salesman at the rate of $45 per week. The Court decided:

  1. The salary difference of ten percent between the offered employment and claimant’s last employment was not such a drastic reduction as to justify a refusal.
  2. There is nothing in the law which asserts that a claimant should be allowed at least thirty days of benefits before being compelled to take a position.
  3. The wording of the statute precludes the theory that a claimant may refuse employment simply on the basis that it involves some smaller degree of skill than his last employment. The employment offered must be one for which the claimant is reasonably fitted by training and experience and need not be at precisely the same level of skill at which he was last employed.

Referee’s Decision: The initial determination made by the local office disqualifying claimant on the ground that he refused, without good cause, to accept an offer of employment is sustained. (1/9/45)

Appeal By: Claimant

Findings of Fact: Claimant, fifty-one years of age, resides with his family in the Riverdale section of the Bronx, a short distance from the city line separating the City of Yonkers from the City of New York. Claimant is the father of six sons and four daughters. Five of his sons are in the armed forces of the United States. For the past several years, claimant has been a retail salesman of ginger ale and beer. Prior to 1942, when he sold ginger ale, claimant earned $60 per week, plus commissions, and was furnished with the use of a firm car. His average weekly earnings ranged from $70 to $90. During the years 1942, 1943 and 1944, claimant sold draught beer for two employers. In the first employment up to January 1944, claimant earned $184 per month, plus car expenses and in the second job, commencing in January 1944, he earned $50 per week, plus car expenses. In both positions claimant’s territory was in Westchester County. On October 20, 1944 claimant’s employment terminated. Claimant immediately made active efforts to obtain other employment. More than three weeks later and on November 13, 1944, claimant still being unemployed, filed an original claim for benefits. He reported regularly thereafter to February 4, 1945. On November 17, 1944, four days after he filed his original claim for benefits, claimant was referred by the United States Employment Service to a job as a salesman of bottled beer for a brewery located in Brooklyn, New York. The position offered a salary of $45 per week, plus car expenses, for a fifty-eight hour workweek. From conversations had with salesman of bottled beer, claimant had learned that much larger territories are assigned for daily coverage to salesman of bottled beer than are assigned to salesman of draught beer. Claimant testified that the former make about eighty stops a day whereas the latter salesman make about twenty daily calls. Claimant had also gained the impression that a salesman of bottled beer must report to his brewery every morning and at times in the evening upon completion of the day’s calls. Claimant testified that he would have to travel for about two hours one way to get from his home to the establishment of the prospective employer. Claimant felt that work as a salesman of draught beer called for a higher skill than employment as a salesman of bottled beer. In addition, the cost of maintaining claimant’s home and family was high. A salary of $45 per week was insufficient to meet claimant’s living costs. Consequently, by reason of the foregoing considerations, claimant refused the offer of employment. He informed the employment interviewer that if the job in question paid $65 per week he would accept it, but under all of the circumstances, he felt obliged to reject it. On November 28, 1944 after interviewing the claimant with respect to his refusal, the local office made an initial determination disqualifying him from receiving any benefits as of November 17, 1944 on the ground that he refused, without good cause, to accept an offer of employment. Claimant objected thereto and requested a hearing. In his employment as a draught beer salesman, claimant’s customers consisted of bars, grills, taverns and political and social clubs. A salesman of bottled beer sells only to retail groceries and delicatessens. A draught beer salesman is required to have a specialized knowledge of beer, particularly with respect to its brewing and its proper refrigeration and handling at the premises where sold. At the commencement of claimant’s employment as a draught beer salesman, he attended training sessions conducted by his employer, designed to teach him the fundamentals of draught beer salesmanship. In his three years of work in this capacity, in daily contact with the trade, claimant acquired a wider experience and a greater knowledge of the work. A salesman of bottled beer is not required to possess this specialized knowledge. In his testimony before the referee, the representative of the United Statement Employment service corroborated claimant’s testimony, in substance, when he stated that a bottled beer salesman is a "lower type of sales job and pays less usually, than the ones who go from bars and grills where they have facilities for drawing beer from the keg." From all of the credible evidence herein, we find as a fact that a salesman of draught beer requires a higher degree of knowledge and skill than does a salesman of bottled beer. Claimant has not received a single benefit check. In the absence of the disqualification in question, he would be entitled to receive ten benefit checks each in the sum of $18. Throughout his reporting period from November 13, 1944 to February 4, 1945 claimant made genuine efforts to obtain employment. On February 7, 1945 claimant succeeded in obtaining employment with one of his former employers as a ginger ale salesman. At the time of the hearing before the Board, held on April 11, 1945, claimant was thus employed and was earning about $52 per week. He asserted that before the month is out he expects to earn about $100 per week.

Appeal Board Opinion: The sole issue herein is whether or not claimant had good cause to refuse the offer of employment. It is significant to note that for sometime past it has been the policy of the Industrial Commissioner to permit a claimant for benefits a period of at least thirty days after his original registration for benefits, to obtain employment in his customary occupation, before disqualifying him for refusing an offer of employment in a different type of work. In the instant case, the referral in question was made only four days after claimant filed his original claim for benefits. The employment offered to the claimant was not in his customary occupation. It is clear from the facts herein that a salesman of draught beer is required to have a greater knowledge and a higher degree of skill than a salesman of bottled beer is required to possess. Despite the established practice as aforesaid, the local office disqualified claimant for said refusal of employment. We believe that claimant should have been afforded a reasonable opportunity to obtain employment in his usual field before disqualifying him for the refusal of the employment in question. In addition to the fact that the work offered was dissimilar in character to claimant’s usual occupation and was offered to the claimant so soon after he filed his claim for benefits, it is noteworthy that the job in question offered a salary of $5 per week less than claimant’s earnings in his last employment. To the head of a family such as the claimant, with his heavy family and home obligations, a difference of $5 in each week’s pay check looms up large and important. From our observation of the claimant, we are convinced that he acted in good faith and that throughout his reporting period he made honest and genuine efforts to obtain suitable employment. He remained unemployed only as long as he was unable to find employment through no fault of his own. We have considered and weighed all of these facts together with all of the surrounding facts and circumstances pertinent to the issue herein and we have concluded therefrom that claimant had good cause to refuse the offer of employment in question.

Appeal Board Decision: The initial determination made by the local office disqualifying the claimant from receiving any benefits as of November 17, 1944 on the ground that he refused, without good cause, to accept an offer of employment is hereby overruled. The decision of the referee is reversed. (4/23/45)

Appeal By: Industrial Commissioner

Appellate Division Opinion: The Board has found as a fact that a salesman of draught beer requires a higher degree of knowledge and skill than does a salesman of bottled beer. We are unable to appreciate this esoteric distinction, but, since there is some evidence to support it and we deal only with questions of law on appeals of this character, we may not disturb it (Labor Law, section 624). There is however nothing in the statute to justify the decision of the Board based in part on such a distinction. The Board based its entire decision upon three propositions: the claimant’s possession of a higher degree of skill justified refusal of a job requiring some lower skill; that claimant should have been allowed at lest thirty days of benefits before being compelled to take a job; and that a salary difference of ten percent between the offered employment and claimant’s last employment also justified the refusal. We find nothing in the law which authorizes these conclusions to be drawn from the conceded facts. Section 593, subdivision 2, of the Unemployment Insurance Law provides: "No benefits shall be payable to any claimant who without good cause refuses to accept an offer of employment for which he is reasonably fitted by training and experience, including employments not subject to this article." The very wording of this opening sentence precludes the theory that a claimant may refuse employment simply on the basis that it involves some smaller degree of skill than his last employment. The Unemployment Insurance Law was never intended as a guarantee that a claimant might always obtain benefits unless he was offered employment at precisely the same level of skill at which he was last employed. The only obligation imposed, insofar as this phase of the statute is concerned, is that the employment offered must be one for which the claimant is reasonably fitted by training and experience. Paragraphs (a) and (b) of section 593, subdivision 2, relating to union membership and strikes, have no application. Paragraph (c) provides in substance that the employment offered must not be at an unreasonable distance from claimant’s residence. The facts do not indicate, nor was it found, that the employment offered violated this prohibition. Paragraph (d) provides that the employment offered must not be for wages, hours or conditions substantially less favorable to a claimant than those prevailing for similar work in the locality, or are such as tend to depress wages or working conditions. There is no proof whatever in the record that these restrictive conditions were violated. Thus there is nothing in the statute to sustain the Board’s decision that claimant’s refusal to accept the employment was with good cause. Nor is there anything in the law to sustain that part of the Board’s decision which asserts that claimant should have been allowed at least thirty days of benefits before being compelled to take a position (Matter of Mattoy, 267 App. Div. 845). The last basis for the Board’s decision, that the salary offered was $5.00 a week less than claimant’s earnings in his last employment, is equally untenable. It was a cut of only ten percent, and not such a drastic reduction as to justify a refusal.

Appellate Division Decision: the decision of the Board should be reversed, without costs, as a matter of law and the decision of the referee reinstated. (1/9/46)