A-750-1200
Index No. 1020.6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 8, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
HEARINGS & APPEALS
Hearing, Right to

Referee Case Number OSR-935-53R

QUESTION OF EMPLOYER’S RIGHT TO HEARING

An employer is not entitled to a hearing from an initial determination disqualifying a claimant from receiving benefits since he is not a party aggrieved or affected by such determinations.

Referee’s Findings of Fact: A hearing was held at which representatives of the Industrial Commissioner and of the employer appeared and testified. Claimant, a bookkeeper II, filed for benefits in Los Angeles, California effective December 29, 1952. By initial determination effective that date, she was disqualified for 42 days for voluntary leaving of employment without good cause. Claimant did not protest the initial determination or did she authorize her employer to do so on her behalf. However, the employer protested the initial determination disqualifying claimant and requested a hearing, depositing the sum of $10 as required by Section 620.1 of the Unemployment Insurance Law. The Commissioner’s representative raised an objection to a hearing on the merits on the ground that claimant had not requested the hearing and that the employer was not a party aggrieved or affected by such initial determination. Claimant was employed in New York for ten years to November 28 on which date she resigned after giving the employer one month’s notice. Initially, claimant alleged that her resignation was occasioned by ill health and at the advice of her physician, but thereafter indicated that she had not been under medical treatment for a period prior to leaving. She was dissatisfied with her progress at the employment and she believed she had reached "a dead end." She therefore decided to change her environment and move to California for employment purposes. According to the employer, claimant had been falling behind in her work and from time to time, an assistant had been supplied to enable her to bring the work up to date. Several months before the termination of her employment, claimant was told that assistance would not be given her and that if she could not handle the work by herself, she would be replaced by another employee who could. Claimant continued to work and then gave notice as aforementioned. Had she not resigned from her job, she would not have been discharged.

Referee’s Opinion and Decision: Section 620.1(a) of the Law provides as follows:

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

The Commissioner’s preliminary objection is well taken. Although the statute uses the term "other party affected" and does not use the term "aggrieved" the proper reading of the Section requires a holding that the other party must be affected to his detriment before he may request a hearing. It should be noted that only a claimant who is dissatisfied is granted the right to request a hearing as it is correctly presumed that no hearing will be requested by claimant when the determination is in his favor. Proper construction requires the insertion of the word "adversely" after "affected." To hold otherwise would enable any party to place frivolous objections and protests and cause innumerable hearings, which would serve no purpose. Due process requires merely that a person aggrieved be granted the right to appeal, not a person in whose favor an initial determination is issued. Accordingly, the employer is not entitled to a hearing on the merits. Since the employer is not entitled to a hearing on the merits and since claimant’s benefits were not withheld by virtue of the employer’s protest and deposit, the employer is entitled to a refund of its deposit. The initial determination remains in effect. The employer is entitled to a refund of its deposit. (April 24, 1953)




A-750-1201
Index No. 1205F-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 8, 1953

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

Appeal Board Case Number 35,349-52

REFUSAL DURNG VOLUNTARY LEAVING DISQUALIFICATION PERIOD INVOLVING SAME JOB

A disqualification for refusal without good cause may apply even though the refusal occurs during the disqualification period for a voluntary quit of the same employment.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective August 19, 1952, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience is overruled. (November 24, 1952)

Appealed By: Industrial Commissioner

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

* * *

Claimant, a proofreader, filed a claim for benefits, effective August 4, 1952. By initial determination effective that date, claimant was disqualified for 42 days for voluntary leaving of employment without good cause, and by initial determination effective August 19 she was disqualified for refusal of employment without good cause.

* * *

Claimant was employed for approximately 14 months to July 3, 1952. Her salary was approximately $33 weekly. It is claimant’s contention that she left her job because she had disagreeable experiences with her immediate supervisor. She at no time complained to the employer regarding such conditions. Had she complained she could have been transferred to other work.

On August 19 the insurance office, upon notification that the employer had work for claimant, offered her her former job or other work with the employer. Claimant refused to return to the employer. This refusal was the basis for the initial determination disqualifying claimant for refusal of employment.

* * *

We make the following additional findings of fact: The referee overruled the initial determination disqualifying claimant from receiving benefits for refusing employment, without good cause, and sustained the initial determination disqualifying her from receiving benefits on the ground that she voluntarily left her employment without good cause. The Industrial Commissioner now appeals to this Board from the decision of the referee insofar as it overrules the initial determination disqualifying claimant from receiving benefits for refusing employment without good cause.

Appeal Board Opinion: The referee ruled that the facts herein are to be distinguished from those in Matter of Crowe, 280 App. Div. 427, reversing Appeal Board, 38,204-51; aff’d Court of Appeals, April 23, 1953. The referee did so on the premise that since claimant refused to return to the employer during the disqualification period for voluntary leaving of employment, without good cause, said refusal was part of the leaving of employment and is not to be deemed a separate disqualifying condition as to the claimant. We are not in accord with the referee’s conclusion. The facts herein are to be governed by the rules set forth in the Matter of Crowe, supra. There were two separate acts involved and, therefore, the disqualifications issued for both the refusal and voluntary leaving of employment were proper. We have held that a disqualification for refusal of employment may be imposed against a claimant during a disqualification period for voluntary leaving of employment without good cause. (Appeal Board, 18,477-48; 31,640-52) The disqualification for refusal of employment without good cause, effective August 19, 1952, was properly imposed.

Appeal Board Decision: The initial determination of the local office, disqualifying claimant from receiving benefits for 42 days, effective August 4, 1952, on the ground that she voluntarily left her employment without good cause, and disqualifying her from receiving benefits, effective August 19, 1952, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience, are sustained. The decision of the referee, insofar as appealed from, is reversed. (May 15, 1953)




A-750-1207
Index No. 1420-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 22, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Miscellaneous – Other Employments

Appellate Division Decision

Matter of Emery, 281 AD 2nd 426

Appeal Board Case Number 30,879-52

TOTAL UNEMPLOYMENT, QUESTION OF – SELF-EMPLOYMENT

A claimant is engaged in self-employment and therefore ineligible for benefits because he is not totally unemployed within the meaning of that term as defined by Section 522 of the Law when he devotes substantial time to a business in which he has a proprietary interest.

Referee’s Findings of Fact: A hearing was held at which the claimant and a representation of the Industrial Commissioner appeared and testified. Claimant filed an original claim effective claim effective July 2, 1951. By an initial determination, the claimant was ruled ineligible from October 1, 1950 to November 5, 1950, from January 22, 1951 to March 18, 1951 and from July 2, 1951 to July 15, 1951, for unavailability for employment. As a result of the determination, the claimant has been overpaid $286 for the periods ending March 18, 1951. For several years, the claimant worked at silk mills in the vicinity of Port Jervis. Prior to that, he was a drill runner and a miner. On March 1, 1949, the claimant and another person, who was also a textile worker, purchased a retail liquor store in Port Jervis. Each contributed $15,000 toward the co-partnership. Thereafter, the store was open for business from 8 a.m. to 10:45 p.m. for six days a week. When interviewed on November 8 the claimant stated:

"We do not close the store during lunch time. When my partner, Francis Finan, was employed and I was unemployed I would put in about 8½ hours a day at the store. On the 19th of October Francis Finan became employed and on that date I was unemployed and collecting unemployment insurance. This continued until week ending November 5, 1950 when I went back to work. Again Francis Finan became employed on January 22, 1951 while I was unemployed and collecting unemployment insurance. This continued up to week ending March 18, 1951. During this entire period from October 19 to November 5, 1950 and from January 22, 1941 to March 18, 1951 I worked in the liquor store from 3:30 p.m. to 11 p.m. (about 8½ hours) Monday to Friday. On Saturday I would only work 7½ hours at the liquor store. During that period mentioned above I could take work, because my wife could relieve me in the store. I would have taken acceptable work during the period mentioned above. During the period July 2 to July 15, 1951 I worked 7½ hours a day Monday to an including Saturday at the liquor store. I was on vacation for which I did not receive any pay from July 2 to July 15, 1951."

During the first year of operation of the liquor store, the claimant and his partner purchased the building in which the store was located. At the hearing, the claimant was questioned as to the amount of sales at the shop in order to determine the activity of the business. Claimant, however, would not or could not state the amount of such sales.

Referee’s Opinion and Decision: Upon the credible evidence, it appears to me that during the periods herein the claimant was not genuinely in the labor market seeking employment. For the periods in question, the claimant was in charge of the liquor store in which he had made a substantial investment. It does not appear to me that he made a genuine and diligent effort during those periods to seek work. The initial determination is sustained. The claimant has been overpaid in benefits as charged. (January 25, 1952)

Appealed By: Claimant

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (July 18, 1952)

Appealed By: Claimant

Appellate Division Opinion and Decision: This case presents the question of whether one who devotes substantially his full time to a business of which he is one of the owners, while awaiting recall to an outside employment in which he was formerly engaged, is "unemployed" within the meaning of the Unemployment Insurance Law and is eligible for benefits thereunder. In the absence of any statutory provisions giving a special meaning to the words used, a negative answer would seem to be obvious. One who is "self-employed" is not "unemployed." The appellant’s argument to the contrary rests solely upon the definition of "employment" in §511 of the Labor Law, subdivision 1 of §511 reads:

"General definition. ‘Employment’ means any service under any contract of employment for hire, express or implied, written or oral."

From this the appellant argues that to constitute employment within the meaning of the statute there must be a contractual master and servant relationship and that one who is the sole proprietor of a business or a co-partner in a business enterprise is not in law an employee thereof. Therefore, the appellant argues, one who engages in business for himself or as a co-partner, after being laid off from an outside employment, is not engaged in any "employment"; ergo, he is "unemployed." The appellant’s obvious error consists of applying a general definition which was intended to indicate the scope of the coverage of the statute, to the wholly unrelated question of what constitutes unemployment within the meaning of the statute. He overlooks the fact that the term "total unemployment" and the term "employment" as used in connection therewith are specifically defined in §522 of the Labor Law as follows:

"’Total unemployment’ means the total lack of any employment on any day, caused by the inability of a claimant who is capable of and available for work to engage in his usual employment or in any other for which he is reasonably fitted by training and experience. The term ‘employment’ as used in this section means any employment including that not defined in this title." (Emphasis added)

The last sentence of the section would have been clearer if the word "work" had been used in the text of the definition instead of the word "employment" but it is plain enough that this is what was intended. The word "employment" is synonymous, in a colloquial sense, with "work" and the standard dictionaries so define it. The last sentence of §522 should be read as providing that the term "employment" as used in that section means any work for profit or remuneration, whether or not it is included within the term "employment" as defined in subdivision 1 of §511 (cf. §205(5) and §207 of the Workmen’s Compensation Law). Self-employment is clearly work for profit; one who is self-employed is engaged in employment within the meaning of §522 and he cannot claim any unemployment insurance benefits. There can be no controversy about the application of this conclusion to the facts of this case. The appellant was employed from time to time in a silk mill. He an another mill employee purchased a retail liquor store, which they operated as, co-partners. Their partnership agreement provided that they were to give their full-time to the business but, in practice, if one of the partners was working at the mill, the other partner would run the store. While both partners were at work at the mill, the appellant’s wife took care of the store during their work-shifts but they worked additional hours in their off time. The appellant was laid off from mill employment for periods of varying length in 1950 and 1951. During these periods he worked the usual hours of the business day in the liquor store. These are the periods for which the appellant claimed unemployment insurance benefits. This claim was properly rejected under the construction of §522 of the Labor Law set forth above. There was no time during which the appellant was unemployed; therefore no question arises under §523 of the Labor Law as to whether the claimant’s earnings during any week in which unemployment occurred exceeded the sum of $30.00. Neither does any question arise in this case as to whether the claimant was disqualified for benefits under any of the provisions of §593; the claimant was not denied benefits because he was unavailable for outside employment. It may be assumed that he was available for recall to the mill at all times but the fact remains that he was at work in the liquor store and was not unemployed while awaiting the call. The decision of the Unemployment Insurance Appeal Board is affirmed without costs. (March 12, 1953)

COMMENTS

  1. The Court decision reverses a principle, which has consistently been applied in the past. This principle was to the effect that self-employment is not "employment" for any of the purposes of the Unemployment Insurance Law and that a claimant although he is engaged in self-employment may, nevertheless, be considered as totally unemployed in the sense that he has a "total lack of any employment." (Section 522) The question whether such claimant is eligible for benefits was under this principle resolved solely on the basis of his availability, this is, whether the self-employment was of such nature that it rendered the claimant "unavailable" within the meaning of the Law.

    The decision here reported establishes that a claimant who is self-employed is not totally unemployed and, for this reason, not eligible for benefits whether or not he is "available" for work.

  2. Even though the language of the Court decision is broad and general and does not specify any limitations, it appears proper to evaluate it within the framework of the circumstances under which it was rendered. These circumstances include the following

Claimant worked the usual hours of the business day in the liquor store of which he was a co-owner.

This reflects the presence of elements, which include these:

  1. The claimant was the co-owner of an established business for profit.
  2. The claimant rendered substantial services in the interest of the business enterprise.
  3. His activities were productive in that they were designed to result in income for the business.

That the last mentioned of these elements is needed, in order that there be self-employment within the meaning of the decision, is also indicated by the Court’s conclusion that "employment" for the purpose of Section 522 requires "work for profit or remuneration." This conclusion shows at the same time that ownership, which results in income without "work", is not such self-employment. Similarly, incidental activities for the prime purpose of merely protecting that which normally flows from ownership does not seem to constitute such self-employment. Thus, an individual, who owns real estate, should not be considered as engaged in self-employment if his activities are confined to matters such as collecting rents, removing ashes, ordering repairs, keeping the necessary books, etc., unless these activities acquire such proportion that he must be considered as engaged in the business of managing real property.

Concerning the first of the above mentioned elements, that is, whether the claimant operates an "established" business, rules of common sense apply. An individual, for instance, who on occasion acts as an insurance solicitor among his relatives and friends, can hardly be classified as having an established business. It appears, therefore, that only a person who can in some form be considered as having set himself up in business should be considered as being engaged in self-employment. Likewise, a worker who is also a "subsistence" farmer cannot be said to be established in the farming business. A "subsistence" farmer is an individual who cultivates land and maintains livestock without, generally, selling the products but using them in his own household.

The further question, that is whether the services rendered are of such extent that they constitute "self-employment" satisfying the requirements, can in most, if not practically all, cases be answered on the basis of time and effort spent on them. If the time and effort are negligible, it is safe to conclude that the requirements of self-employment are not met.

  1. The foregoing concerns, yet connected question arises when a claimant renders personal services for which he is paid, but the relationship with the principal is not that of employer-employee (master-servant). An illustration may be the case of the unemployed worker who on occasion renders services, such as making repairs or doing errands for neighbors and acquaintances, under circumstances which do not make him an "employee." Is his work "self-employment" so that he could not be considered as totally unemployed? It seems that the answer should be in the negative. The rationalization is that he is not engaged in a self-employment, that is, he does not operate a business enterprise for doing odd jobs and, therefore, basically relates back to the discussion under "2" above: Rendering such or other personal services constitutes self-employment only if the individual holds himself therefore out to the general public.

  2. In view of these considerations, the following emerges as the proposed approach:
  3. "Self-employment" which would render a claimant ineligible for benefits because he is not totally unemployed requires that

    1. There is an established business enterprise;
    2. Claimant operates such business as owner or co-owner;
    3. The business is conducted for profit;
    4. Claimant’s work consists in rendering active services in such business enterprise;
    5. Such services are substantial;
    6. The services rendered are productive, that is, they must be designed to lead towards profit or remuneration for the business or for the claimant, or must consist of performing a normal business function, such as maintaining current record, which, otherwise, would have to be attended by an employee or partner.

"Productive" services, as set forth under "f" above, must be distinguished from work which is only performed to protect investments or which consists of incidental activities for the prime purpose of merely preserving that which normally flows from ownership. On the other hand, whether the services actually result in income is immaterial as long as they were undertaken with a view towards profits.

  1. If, by applying these tests, a claimant is found not to be engaged in self-employment, the question remains, of course, whether his activities are such that they render him unavailable for work. A view of the Comments of A-750-959 is suggested. These comments are obsolete to the extent that they are in conflict with the Court decision here discussed. However, the ideas expressed will continue to apply to cases in which a claimant’s pursuits do not constitute "self-employment" as set forth above.

  2. The $30 earnings limit as provided in section 523 of the law, preventing the accumulation of effective days in weeks of partial unemployment, will not apply to earnings in self-employment. That section of the law speaks of "remuneration" which is a defined term and means "compensation for employment paid by an employer to his employee." There is nothing in the statute, which would allow an extension of that meaning into earnings from self-employment.
  3. This conclusion obviates complications, which would otherwise exist since gross income would not fairly represent earnings in any cases.

    As a practical matter, a claimant who earns as much as $30 a week in self-employment will rarely be engaged in self-employment for only part of the week.

  4. The "rules" under Index 775 on self-employment under the general topic of "availability" will require careful analyses before benefits are paid. In practically all cases where claimants were held unavailable in the past because of business activities on their own account, it will now be appropriate to consider them also self-employed. In some of the cases where claimants were previously held eligible for benefits, since they are "available," it will now be necessary to deny benefits because of self-employment.
  5. It should be noted that the decision only concerns "Total Unemployment" as defined by Section 522 of the law and is predicated on the specific reference in that section to the effect that "The term ‘employment’ as used in this section means any employment including that not defined in this Title." Consequently, when the question of "employment" has significance in connection with other provisions of the law, the principles underlying the decision here discussed do not apply.



A-750-1211
Index No. 1725.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 19, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Union Relations

Appeal Board Case Number 38,039-53

PROVOKED DISCHARGE – REFUSAL TO CONTINUE MEMBERSHIP IN "LEFT-WING" UNION

Discharge because of claimant’s failure to maintain membership in a union does not constitute voluntary leaving of employment without good cause if the action is prompted by his belief, for which there are reasonable grounds, that the union adheres to economic precepts and political philosophy which he abhors as inimical to the best interests and the fundamental concepts of the United States.

Referee’s Decision: The initial determination of the local office disqualifying her from receiving benefits for 42 consecutive days, effective March 24, 1953, on the ground that she voluntarily left her employment without good cause is sustained. (May 7, 1953

Appealed By: Claimant

Findings of Fact: Claimant was employed as an inserter in a mailing office for eight years ending March 23, 1953. In 1950, the employer and the U. union entered into contractual relations and as a result thereof, claimant then became a member of the U. Union and paid dues for two years to July 1952. At about the latter time, claimant became aware of the fact that the U. union was no longer in existence because it had been replaced by the D. union, with which the employer had a closed shop agreement. Claimant was unwilling to remain a member of or to support the D. union. She disassociated herself from this group by refusing to pay union dues or to attend its meetings. Claimant is not opposed to membership in a union as a matter of principle, but she refused to be affiliated with the D. union because she deemed it to be a "left-wing" union. She was opposed to the officers governing the union’s operations because she was not in accord with their economic philosophy then being supported by the union membership. Based on widely publicized reports in the daily press of a judicial rebuke received by the union’s officers for their contumacious conduct, and official investigations of the union’s activities, claimant sincerely believed that the economic precepts and political philosophy propagandized and supported by the D. union were inimical to the best interests of our country and contrary to the fundamental concepts upon which, our government is founded. Claimant deeply resented paying due to a union, which she sincerely regarded as politically subversive and dangerous to the welfare of the nation. She sincerely felt that she could not be a member of the D. union without suffering a serious conflict of conscience. Therefore, she refused to pay dues to that organization. As a result, the union insisted upon claimant’s discharge from her employment, which was terminated on March 23, 1953. Claimant filed a claim for benefits, effective March 24, 1953. Based on an interview had with the claimant at the local office, an initial determination was issued disqualifying claimant from receiving benefits for 42 days, effective March 24, 1953, on the ground that she had voluntarily left her employment without good cause, because of her discontinuance of meeting union shop requirements. Claimant requested a hearing and the referee sustained the initial determination. Claimant thereupon appealed to this Board.

Appeal Board Opinion and Decision: The claimant’s failure to pay her union dues resulted in her discharge. The referee held that this was tantamount to a voluntary leaving of her employment without good cause.

* * *

The phrase "without good cause" may be construed flexibly and must necessarily depend upon the peculiar facts and circumstances of each case. . . . a claimant seeking unemployment insurance benefits must . . . demonstrate that his separation from employment was founded on a good and reasonable cause rather than on the arbitrary or capricious will of the claimant (Appeal Board, 6179-41).

* * *

In the instant case, claimant’s sincerity is not questioned. There is no reason to doubt that claimant’s failure to maintain her membership in the D. union was the result of an abhorrence, which she felt for that organization. Claimant’s feelings and beliefs were not fanciful, but based on facts, which were common knowledge. Thus, there existed a reasonable basis for her belief, which caused her to refuse to continue membership in the D. union. She registered her protest in the only way possible. Her failure to pay dues to the D. union was neither arbitrary nor capricious. Under such circumstances, we are of the opinion that claimant had good cause in permitting her employment to be terminated by discharge, which was not tantamount to a voluntary leaving. The initial determination of the local office, disqualifying claimant from receiving benefits for 42 consecutive days, effective March 24, 1953, on the ground that she voluntarily left her employment without good cause, is overruled. The decision of the referee is reversed. (June 19, 1953)




A-750-1212
Index No. 1605C-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 25, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Intervening Employment

Referee Case Number S511-159-53R

VOLUNTARY LEAVING PRIOR TO MILITARY SERVICE; QUESTION OF DISQUALIFICATION AFTER DISCHARGE

A claimant, not entitled to reinstatement under the Law to the job, which he voluntarily left without good cause prior to his military service, may not be disqualified for such leaving upon filing for benefits after his discharge from military service.

Referee’s Findings of Fact: A hearing was held at which claimant and representatives of the employer and of the Industrial Commissioner appeared and testified. Claimant, a comptometer operator, filed a claim effective April 27 for State and Supplemental veteran benefits. By initial determination effective April 27 claimant was disqualified for 42 days for voluntary leaving of employment without good cause. Claimant was employed from March 14, 1950 to January 10, 1951. His last salary was $39 weekly. He left the job because he was dissatisfied with the progress he was making. His supervisor encouraged him to leave, indicating that there was no future for him. Claimant entered the Army on January 29,1951, and was honorably discharged on January 29,1953. At the hearing, the employer’s representative stated that it was difficult to say whether a job would have been open at the time of claimant’s discharge from the armed service, since jobs were filled from time to time and occasionally such jobs were open. It is the contention of the insurance office that the principle stated in appeal Board, 33,809-52 is applicable herein.

Referee’s Opinion and Decision: It has been ruled that leaving a job because of lack of prospects is a leaving without good cause. It is so held herein. Claimant voluntarily left his employment without good cause when he resigned as of January 10, 1951. The only question remaining is the effect of claimant’s military service. In the case above cited, it was held that a veteran who had rights of reinstatement under the Universal Military Training and Service Act, who does not accept an offer of reinstatement is held to have voluntarily left employment without good cause. The facts herein are substantially different. This claimant has no rights to reinstatement; he left his job without good cause prior to his military service and there is no evidence that a job existed after the termination of his military service. It has been further held that a claimant's last employment is the determinative employment in regard to which an issue of voluntary leaving of employment can arise. For unemployment insurance purposes, military service should be given the same status as subsequent employment. (See in re Emery, 381 App. Div. 426; appeal Board, 30,879-52). It would appear to be the policy of this state to avoid penalizing a veteran for his actions prior to his military service. (See Military Law, Section 323.) The initial determination is overruled. (July 1, 1953)

COMMENT

The same conclusion, as reached in this case for voluntary leaving, would apply to a refusal without good cause, which occurred prior to entry into military service. The principle can be expressed thus:

Performance of military services has the same effect on the termination of a previously incurred disqualification as has intervening employment.




A-750-1213
Index No. 1420-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 24, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
AVAILABILITY & CAPABILITY
Self-employment
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous – Other Employments

Appeal Board Case Number 38,226-53

TOTAL UNEMPLOYMENT AND AVAILABILITY, QUESTION OF; RENTING OF ROOMS IN HOME

A claimant who rents some rooms in her home is not engaged in the rooming house business and, therefore, not engaged in self-employment when, in connection therewith, she only performs the normal household duties of any housewife who is gainfully employed during the daytime.

(See Comments after Decision)

Referee’s Decision: The initial determination that claimant was ineligible to receive benefits, effective March 30, 1953, on the ground that she was not totally unemployed is overruled. (May 14, 1953)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant owns a 14-room house in which she resides. She is self-supporting. In order to help pay the cost of maintaining her home, claimant rents four rooms. She does all the cleaning and maintenance of her own home with the help of a boy employed for that purpose. For three years ending March 24, 1953, claimant was employed as a chambermaid in a hotel on a part-time basis. Her hours of employment were from 8 a.m. to 2 p.m. for a six-day week, for which she received $18.15. Her employment was terminated by illness. Claimant filed a claim for benefits, effective March 30, 1953, and registered for employment. On April 9, 1953, the State Employment Service offered claimant a job as a chambermaid in a rooming house. The hours were to be from 9 a.m. to 1 p.m. for a six-day week and the remuneration was $14 per week. Claimant refused the job offer because it involved cleaning 38 rooms and windows. Based upon a report from the employment service and after an interview, the local office issued the final initial determinations, (1) holding claimant ineligible for benefits, effective March 30, 1953, on the ground that she was unavailable for employment; (2) holding claimant ineligible for benefits, effective the same date, on the ground that she was not totally unemployed and (3) in the alternative disqualifying claimant from receiving benefits, effective April 9, 1953, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience. Claimant contested the initial determinations and requested a hearing. The referee overruled the initial determinations holding claimant ineligible for benefits on the grounds of unavailability and lack of total unemployment, but sustained the initial determination disqualifying claimant for job refusal, effective April 9, 1953. The Industrial Commissioner appeals from that part of the decision of the referee, which overruled the initial determination of the local office holding that claimant, was not totally unemployed within the meaning of the Law. Claimant did not appeal to this Board.

Appeal Board Opinion: The Industrial Commissioner argues that claimant was in business and therefore was not totally unemployed within the meaning of the Law under the decision of the court in Matter of Emery, 281 App. Div. 426, affirming Appeal Board, 30,879-52. We do not agree with the Commissioner’s premise that claimant was engaged in the operation of a business. Claimant owned the home in which she resided. She performed the normal household duties of any housewife who is gainfully employed during the daytime. The fact that she rented four rooms out of a total of 14 did not change the character of the place which was essentially that of a home. She was not engaged in the rooming house business for the purpose of gaining a livelihood. Claimant was willing to accept employment on the same basis as her previous employment. She was therefore available for employment and was totally unemployed within the meaning of the Law.

Appeal Board Decision: Claimant was available for employment and was totally unemployed within the meaning of the Law. The initial determinations of the local office, to the contrary, are overruled. The decision of the referee is affirmed. (July 17, 1953)

COMMENTS

Appellate Division decision, Matter of Emery, cited by the Board, is released in the Interpretation Service as Serial No. A-750-1207. The conclusion reached in the instant case conforms with the principles expressed in the "comments" of that release.




A-750-1215
Index No. 765.6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

September 16, 1953

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Efforts to Find Work – General

Appeal Board Case No. 38,682-53

LIMITING JOB SEARCHES BY REGISTERED NURSE TO INDUSTRIAL NURSING ONLY

Claimant, possessing a general skill (registered nurse) which is usable in several fields, does not become unavailable by limiting job efforts to one of such fields in accordance with claimant’s work history (industrial nursing), when there are reasonable employment opportunities in such special field.

(See Comments after Decision)

Referee’s Decision: That portion of the initial determination of the local office which disqualified claimant from receiving benefits, effective April 27, 1953, on the ground that she withdrew from the labor market is overruled. (June 22, 1953)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant is licensed to practice as a registered nurse in the States of New York and New Jersey. After complying with the legal requirements to practice nursing, claimant spent about two additional years in hospital training and private employment in order to qualify as an industrial nurse. Industrial nursing is a recognized, specialized field in the nursing profession. Between October 16, 1950 and April 8, 1953, claimant, while residing in New York City, was employed as an industrial nurse by a large corporation in that city at a salary of $284 a month. Claimant filed an original claim for benefits, effective April 27, 1953. She is classified as an industrial nurse. She presently resides with her husband in Rockland County where they have a house. She desires employment as an industrial nurse and before leaving her last employment and since filing her claim for benefits, has actively sought such employment at a number of large firms located in Rockland County and in Orange County. Claimant has been interviewed and promised employment upon the occurrence of a vacancy by one of the larger employers in her area. She has applications on file with a number of establishments, at one of which ten industrial nurses are employed. In addition, claimant has sought assistance in obtaining employment from an industrial nurses’ group of which she is a member, and has inquired as to leads to jobs of her friends practicing her profession in Rockland County. She has reported at the employment service as required, seeking assistance in her search for employment but that office has never offered to refer claimant to any job opening. By initial determination, effective April 27, 1953, claimant was disqualified from receiving benefits on the ground that she had withdrawn from the labor market, and in addition, was disqualified from receiving benefits for 42 consecutive days, effective upon her return to the labor market, on the ground that she voluntarily left her employment without good cause. The referee overruled the initial determination of the local office, and the Industrial Commissioner filed an appeal to this Board.

Appeal Board Opinion: On this appeal the Industrial Commissioner, in his brief submitted to the Board for its consideration, limits his appeal to that portion of the decision which overruled the initial determination of the local office holding that claimant withdrew from the labor market. The contention is made that the referee’s decision should be modified to hold that claimant was unavailable for employment, because she sought employment only as an industrial nurse and failed to look for employment as a general registered nurse. Thus, in effect, the sole issue before the Board is whether or not claimant was available for employment. The Industrial Commissioner does not contend that there are no employment opportunities for industrial nurses in Rockland County where claimant resides, nor that claimant did not in fact diligently seek employment as an industrial nurse, her occupational classification. It is argued, however, that because a greater opportunity for employment in general nursing may exist than in claimant’s specialized field of industrial nursing, claimant limited her job opportunities and a likelihood of obtaining employment by seeking only industrial nursing. Thus, it is contended that claimant was unavailable for employment unless she independently sought and was ready to accept employment outside of her specialized field of nursing. But the issue before us is not the availability of work for the claimant but the availability of the claimant for work. (Appeal Board, 12,626-46, 17,200-48, 23,041-50, 29,444-51) Although not susceptible of a precise definition, we have long held the phrase "available for work" to mean claimant’s readiness, willingness and ability to continue to perform work for which he is reasonably fitted by training and experience. (Appeal Board, 2065-40, 2717-40, 5540-41, 29,444-51) Claimant’s diligence of effort to obtain work for which she is fitted by training and experience and the existence of such employment opportunities in her locality are not challenged. In addition to her independent, fruitless efforts, to find employment, the employment service, upon which claimant relied because of its access to many more sources of employment than any individual claimant could possibly have, significantly never referred her to a possible job opening, either as an industrial or general nurse. It is at once apparent, that if any doubt as to claimant’s availability for employment existed, it might readily have been resolved by the employment office by an offer of employment for which she is reasonably fitted by training and experience. Had an offer of employment been made to claimant in the general nursing field and refused, a different issue would be presented. Willingness to work is indicated when a claimant is ready to accept a job (appeal Board, 11,709-45), but no job offer was given to claimant. Claimant’s inability to find work in her field may not be used as a basis to establish that she was unavailable for work. (Appeal Board, 16,359-47, 23,041-50) In our opinion, in light of all of the facts and circumstances in this case, we believe that claimant was in the labor market and has met the test of availability.

Appeal Board Decision: The initial determination of the local office, insofar as it disqualified claimant from benefits on the ground that she withdrew from the labor market, is overruled. The decision of the referee, insofar as appealed from, is affirmed. (August 21, 1953)

COMMENTS

  1. The following quotation from the "Opinion" of the decision deserves close attention:
  2. "Had an offer of employment been made to claimant in the general nursing field and refused, a different issue would be presented". This statement strongly intimates that the refusal of an offer in the general nursing field would have been held to be without good cause.

  3. This decision, if considered in conjunction with the above quoted statement, shows that the impact of limitations is not always identical for availability and refusal. A claimant, although he imposes a restriction or limits his job efforts, may nevertheless be held "available." Yet, if he refuses a job actually offered to him outside the restricted field, he may be disqualified for refusal without good cause.
  4. A rationalization of this differentiation may possibly be found in this thought: somewhat more leeway should be left to a claimant under proper conditions regarding the fields of jobs where he is seeking employment, while stricter standards apply when he is confronted with the actual offer of a specific job.




A-750-1218
Index No. 1410B-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 16, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Days of Rest & Absence Without Pay

Referee Case Number 545-150-53R

STATE EMPLOYEE ON LEAVE WITHOUT PAY

A State employee, in the same manner as any other employee, is totally unemployed (section 522) when on an unpaid leave of absence. (Note: "Employment" within the meaning of the law (Section 511.1) requires a "contract of employment for hire.")

Referee’s Findings of Fact: A hearing was held at which claimant and a representative of the Industrial Commissioner appeared and testified. Claimant, an assistant claims examiner in the Division of Employment of the Department of Labor of the State Of New York, filed effective February 23, 1953. By initial determination effective February 26 claimant was ruled ineligible because of lack of total unemployment. Claimant last worked from February 1, 1950 to November 22, 1952. He was a permanent employee in the classified Civil Service of the State of New York. On November 22 he suffered a heart attack. He was on paid leave from the date to December 19. From December 20 claimant has been on leave of absence without pay. Such leave will terminate in November 1953. Medical evidence disclosed that claimant’s condition had improved to the extent that he may work full time, but he was prohibited from returning to his last position because of the sustained pressure and tension required by that job. Claimant is an attorney and seeks employment as such.

Referee’s Opinion and Decision: The Commissioner’s representative contended that claimant is not totally unemployed because the relationship of employer and employee still continues. Section 411 of the Unemployment Insurance Law provides as follows:

"Employment. 1. General Definition. ‘Employment’ means any service under any contract of employment for hire, express or implied, written or oral."

Section 522 of the Law provides as follows:

"Total unemployment. ‘Total unemployment’ means the total lack of any employment on any day, caused by the inability of a claimant who is capable of and available for work to engage in his usual employment or in any other for which he is reasonably fitted by training and experience. The term ‘employment’ as used in this section means any employment including that no defined in this title."

I distinguish this case from Matter of Blitz, 302 N.Y. 573, affirming 275 App. Div. 1015, reversing Appeal Board, 18,942-49, because claimant is not in a paid leave status as was the fact in that case. In Matter of Brownell, Appeal Board, 35,409-52, the Industrial Commissioner’s contention, that the rights protecting the status of a State employee who had been suspended without pay and whose name had been placed on a preferred list pursuant to Section 31 of the Civil Service Law, were of no consequence in determining eligibility for unemployment insurance benefits, was sustained. Such an employee had the right of reinstatement to his own or similar position and was endowed with certain other rights protecting his status in State service. It has been held that a tax assessor who received $500 per year and who usually performed his services between the second week in September and the last day in December was totally unemployed during the balance of the year (Matter of Blackburn, appeal Board, 29,690-51). Analogous situations arose in recent cases dealing with the subject of vacation pay. There, employees were laid off for definite periods, part of which was covered by paid vacations. In those cases, the appeal Board has consistently held that the period covered by paid vacation was one of employment for which no unemployment insurance benefits could be paid, and the period for which the employees received no payment, was one for which benefits could be payable. In those cases similar to this, the employees had rights of re-employment based on seniority and union rules. Claimant has rendered no services and received no remuneration since filing his claim. He has a right to return to his position if his condition permits, only, if such improvement occurs prior to November 1953. He has had no employment on any day since the termination of his paid leave in any occupation for which he is reasonably fitted by training and experience. Claimant is total unemployed. The initial determination is overruled. (April 10,1953)

COMMENT

Whenever a claimant is on a leave of absence from his regular job but files for benefits, two questions arise immediately which require solution:

  1. Why did the claimant take the leave of absence and what effect do the circumstances have on his availability and capability?
  2. Why did the claimant fail to apply for reinstatement to his regular job (even if the stipulated period of the "leave has not as yet expired) and what effect do the circumstances have on
    1. a potential voluntary quit issue;
    2. a finding of inadequate search for work efforts, potentially resulting in an unavailability determination?



A-750-1220
Index No. 1295.6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 5, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Working Conditions

Appeal Board Case Number 39,362-53

REFUSAL OF EMPLOYMENT; CLAIMANT SUBJECT TO ABUSE AND INSULTS BY FORMER EMPLOYER

Refusal of an offer of re-employment by former employer is with good cause when past experience indicates that the employer subjects the claimant to abuse and insults and when no assurance is given that this situation will be alleviated.

Referee’s Decision: The additional initial determination of the local office disqualifying claimant from receiving benefits, effective May 11, 1953, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience is sustained. (June 29, 1953)

Appealed By: Claimant

Findings of Fact: Claimant, a salesperson, was last employed for approximately four and one-half years in that capacity with a women’s retail specialty shop. She worked six days a week receiving a terminal salary of $60 weekly. The employer is a co-partnership consisting of a husband and wife, operating several stores. Claimant was employed in a store located in Jackson Heights, New York, of which the wife was in charge. On the morning of May 9, 1953, claimant and the wife engaged in a verbal altercation, precipitated by the latter. During the progress thereof, the partner discharged the claimant, called her a vile name and otherwise directed vile, abusive, obscene and indecent language at her. This was but one of a series of similar incidents. Claimant filed a claim for benefits, effective May 11, 1953, and registered for employment. On May 11, 1953, claimant contacted the other partner for the purpose of obtaining salary due her for her previous week’s work. At the partner’s invitation, claimant later that day conferred with him in person. During the course of the conversation, claimant was requested to return to her former employment. When she manifested a reluctance to accept, the partner showed her a form received from claimant’s local unemployment insurance office where she filed for benefits. He stated that if claimant did not accept re-employment he would not facilitate her claim for benefits. The partner prevailed upon the claimant to think the matter over for a week before arriving at a definite decision. At the expiration thereof, claimant telephoned the employer stating that she did not desire to return to her former employment. Claimant diligently sought employment, as a result of which, through her own efforts, she became re-employed on July 1, 1953, as a cashier in a luncheonette. Based on an interview with claimant, the local office issued an initial determination disqualifying her from receiving benefits for 42 consecutive days, effective the date of filing, on the ground that she voluntarily left her employment without good cause. A second initial determination was issued, effective the same date, disqualifying claimant from receiving benefits on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience. In the alternative, she was held ineligible for benefits, effective the same date, on the ground that she was unavailable for employment. Claimant requested a hearing and the referee overruled the initial determination disqualifying claimant from receiving benefits for voluntary leaving. No appeal was taken therefrom. The referee sustained the initial determination disqualifying claimant from receiving benefits for refusal of employment without good cause. He did not rule on the alternative initial determination holding claimant unavailable for employment. Claimant appealed from the adverse portion of the referee’s decision.

Appeal Board Opinion: The referee, in sustaining the initial determination of the local office with respect to claimant’s refusal of employment, concluded that claimant advanced no compelling reason for such refusal. We do not subscribe to this view. For several years, in the course of her employment, claimant had been subjected to abuse and insults. When the offer of re-employment was made, it was unaccompanied by any guarantee that this situation would be alleviated. A claimant, in our opinion, should not be compelled to accept employment under such conditions under pain of being disqualified from receiving benefits. Since claimant had been discharged under exceedingly unpleasant circumstances, we believe that she was not unreasonable in refusing an offer of re-employment unless she received further assurance against a recurrence of these acts. Moreover, we are of the opinion that the offer of re-employment was not made in good faith and we seriously question the bona fides thereof. We are convinced that the offer was advanced, knowing that the claimant most likely would reject the same. We are persuaded that the employer’s motive for making such offer was to form a basis for claimant’s disqualification from benefits. It appears that claimant exerted diligent efforts in search of employment. Her success in procuring a job on her own initiative within a reasonable time after filing for benefits supports such conclusion. Under all the facts and circumstances herein, we are persuaded that claimant did not, without good cause, refuse employment for which she is reasonably fitted by training and experience, within the meaning of the Law. She was available for employment.

Appeal Board Decision: The initial determination of the local office, disqualifying claimant from receiving benefits, effective May 11, 1953, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience, is overruled. The alternative initial determination holding claimant ineligible to receive benefits, effective May 11, 1953, on the ground that she was unavailable for employment, is overruled. The decision of the referee, insofar as appealed, from, is reversed. (September 11, 1953)




A-750-1223
Index No. 765.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

October 12, 1953

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

Appeal Board Case No. 39,503-53

IMPORTANCE OF ADEQUATE COUNSELING CONCERNING SEARCH FOR WORK INFORMATION AND ASSISTANCE

Disqualification of an elderly claimant with language difficulties because of unavailability based upon inadequate job efforts was overruled since claimant was not given needed information and assistance concerning appropriate search for work methods to enable him to utilize effectively his work qualifications in the existing labor market.

(See Comments after Decision)

Referee’s Decision: The initial determination of the local office holding that claimant was ineligible to receive benefits, effective June 15, 1953, on the ground that he was unavailable for employment is sustained. (August 13, 1953)

Appealed By: Claimant

Findings of Fact: Claimant was employed by a company as a sand mixer for 17 years, and was otherwise employed by this company for 20 years before that. On January 30, 1953 he was compulsorily retired because he had reached the age limit of 65 years. He receives a pension from the company and also social security old age benefits. He filed an original claim for benefits effective February 2, 1953. Claimant, upon being compulsorily retired, made application in at least three places for work. He made applications at other factories, but his name was not taken. He was ready and willing to do the kind of work he had been doing, or other kind of work, with regular hours, and at the prevailing rate of pay for such work. He was willing to forego his security benefits if he obtained such employment. Claimant’s understanding of the English language and his ability to speak it are poor. Because of his age, and likewise because of this language difficulty, he met no success when he sought out prospective employers and applied for work. They did not understand him and he did not understand them. The employment service gave him no guidance, nor did it offer him any job referrals. Based on an interview held with the claimant on June 15, 1953, the local office issued an initial determination, effective that day, holding that claimant was ineligible to receive benefits on the ground that he was unavailable for employment. The claimant protested the determination and requested a hearing. The referee sustained the determination. Claimant appeals to this Board from such adverse decision.

Appeal Board Opinion: The referee, in sustaining the initial determination, held that claimant had made but one application for employment, and even considering claimant’s age, this one job contact did not meet the standard of job efforts required of him.

We cannot agree with the referee’s findings or conclusions in the case. We are satisfied that claimant was in the labor market and, considering his age and language difficulties, made reasonable efforts to obtain employment, and was ready and willing to take employment, without restriction as to type of work, or hours, or wages, which would render him unavailable. Claimant, because of his handicaps of age and language difficulty, presented a special problem to the employment service. He did not retire voluntarily, but was forced to do so because of his age. He was in the labor market, willing to do suitable work at prevailing pay. Proper guidance in his case was in order, but this guidance the employment service failed to provide, contrary to its own general policy in such a situation.

Sound determinations on availability require a probing into the true state of mind of an informed claimant, that is, a claimant who has been given the information and assistance he needs to enable him to utilize effectively his work qualifications in the existing labor market. ***The goal is to direct claimants’ job efforts into appropriate channels and to measure compliance with the availability requirement of the Unemployment Insurance Law by willingness, readiness and efforts in line with such directions. (Interpretation Service, File No. A-710-23)

We find no evidence in this case that claimant was provided with such information and assistance to which he was entitled under the circumstances, and we cannot, therefore, uphold as properly issued, the initial determination of the local office depriving him of benefits on the ground of unavailability.

Appeal Board Decision: The initial determination of the local office, holding that claimant was ineligible to receive benefits, effective June 15, 1953, on the ground that he was unavailable for employment, is overruled. The decision of the referee is reversed. (September 18, 1953)

COMMENT

This decision points to the need for observing the requirements as set forth in the release on "Search for Work" (A-710-23). A review of that release and the corresponding procedural items is strongly recommended.




A-750-1224
Index No. 1605A-4
1605D-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 12, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Effective Date

Appeal Board Case Number 39,527-53

DISCHARGE AFTER NOTIFICATION OF RESIGNATION BUT PRIOR TO LEAVING – EFFECTIVE DATE OF SUSPENSION

If a claimant, for reasons which do not constitute good cause, gives his employer notice of leaving the employment and agrees to remain until a replacement has been obtained, but not later than a specified final day, and his services are terminated before such final day when the employer secures the replacement, the disqualification for voluntary quit takes effect immediately although the claimant was willing to continue working.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 days, effective June 22, 1953, on the ground that he voluntarily left his employment without good cause is overruled. (August 14, 1953)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a sales manager and superintendent of a laundry, about a month prior to June 20, 1953 notified his employer that he contemplated resigning his position because allegedly he was displeased with a certain policy adopted by the employer and the long hours he was required to service affected his health and interfered with his domestic affairs. The employer requested claimant to continue in its employ until he could be replaced. He agreed to do so. On June 20 the employer, having found a replacement for claimant, notified him that his services were no longer needed. Claimant filed an application for benefits, effective June 22, 1953. The local office issued an initial determination disqualifying claimant from receiving benefits for 42 days, effective June 22, 1953, on the ground that he voluntarily left his employment without good cause. The claimant contested the initial determination on the ground that claimant was willing to continue his employment beyond June 20, 1953 and that his separation from employment on June 20 constituted a discharge and not a voluntary leaving without good cause. From said decision, the Industrial Commissioner appeals to this Board.

Appeal Board Opinion: We cannot agree with the decision of the referee that claimant did not voluntarily leave his employment without good cause, which was based on the premise that no definite time had been fixed for claimant’s leaving his employment and that at the time of his discharge he was willing to continue for an indefinite time. Claimant disclosed at the hearing before the referee that he did not intend to continue in his employment on and after June 22, 1953 because of physical reasons and that he expected to relinquish his position as soon as he was replaced which occurred on June 20, 1953. Claimant’s purported reasons for desiring to leave this employment as presented by the record before us were too intangible to constitute good cause for leaving under the Law. When such termination should take place was not fixed by date but was fixed by agreement between claimant and the employer as of the time the employer could obtain a replacement. Thus a definite time was fixed for the termination of the employment, with claimant establishing July 1 as the latest he would remain. The time fixed by such agreement arrived when a replacement was obtained and the termination thereupon took place as previously contemplated by both parties. It is immaterial that claimant was willing to continue working thereafter, inasmuch as the employer did not abandon the agreement previously made.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 days, effective June 22, 1953, on the ground that he voluntarily left his employment without good cause is sustained. The decision of the referee is reversed. (September 25, 1953)




A-750-1226
Index No. 1505D-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 12, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION & REPORTING
Misrepresentation or Misstatement
Penalty Period

Appeal Board Case Number 39,501-53

WILFUL MISREPRESENTATION DURING STRIKE DISQUALIFICATION PERIOD

Concealment of a day of employment during a contested strike suspension period constitutes a wilful false statement to obtain benefits.

Referee’s Decision: The initial determination of the local office holding that claimant made a wilfully false statement on June 22, 1953 for the purpose of obtaining benefits, resulting in a forfeit penalty of 20 effective days, is overruled. The initial determination of the local office suspending benefit rights for a period of seven consecutive weeks, effective June 14, 1953, on the ground that claimant lost his employment due to an industrial controversy in the establishment in which he was employed, is sustained. (August 6, 1953)

Appealed By: Cross appeals – Industrial Commissioner and claimant.

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

* * *

Claimant, a mason tender, refiled a claim effective June 15, 1953. By initial determination effective June 14 claimant’s benefits were suspended for seven consecutive weeks because he lost his employment by reason of an industrial controversy in the establishment in which he was employed. It was further ruled that claimant was ineligible for benefits for the day, June 19 because of lack of total unemployment and that in regard thereto, he made a wilful false statement on June 22 by reason of which his future benefit rights were reduced by 20 forfeit effective days. It was also ruled that this employment on June 19, did not break the suspension.

Claimant was employed by the employer herein from June 9 to June 13, inclusive. The mason tenders thereafter did not report for work by reason of an industrial controversy in regard to rates of pay. All the workers, including claimant, worked one day thereafter on June 19 and then stopped working because of the same reason.

When claimant filed his claim, he wrote on the claim form that he left or lost his job because "of a strike." Through oversight, on June 22 when he reported, he marked his identification booklet with "N" for each of the days in the week ending June 21 indicating no employment in that week. He ascribes this lapse as being due to a mistake and difficulties with English.

We make the following additional findings of fact: Claimant protested the initial determination and requested a hearing before the referee. The referee sustained the determination suspending claimant’s benefit rights for a period of seven consecutive weeks on the ground that he lost his employment due to an industrial controversy, held that it was unnecessary to rule upon the determination in regard to lack of total unemployment and overruled the determination of wilful misrepresentation. Claimant now appeals to this Board from the decision of the referee insofar as it sustains the determination suspending his benefit rights on the ground that he lost his employment by reason of an industrial controversy. The Industrial Commissioner now appeals to this Board from the decision of the referee insofar as it overrules the determination as to a wilful misrepresentation.

Appeal Board Opinion: We agree with the conclusion of the referee that claimant suffered his loss of employment by reason of an industrial controversy in the establishment in which he worked. The conclusion is inescapable that the walkout in which claimant participated on June 14 was the direct result of an industrial controversy within the meaning of the Unemployment Insurance Law. We are not in accord with the referee’s conclusion that the certification which claimant made on June 22, 1953 that he was unemployed on June 19 would be immaterial as not affecting his benefit rights. The referee reasoned that since this occurred during claimant’s suspension period due to having lost his employment by reason of an industrial controversy, claimant’s benefit rights would not be affected. Claimant contested the initial determination suspending his benefit rights for 49 days. If he were successful in establishing that his loss of employment was not due to an industrial controversy he would have been entitled to benefits without suspension. Under these circumstances he was required to report at the local office in order to meet the requirements of the statute. Any misstatement made by him during such period were material to his claim. There is no dispute that the statement submitted by claimant to the insurance office on June 22, 1953, that he had not worked on June 19, 1953 was a misstatement and was known to him to be so. Section 594 of the Unemployment Insurance Law provides for a penalty in the case of a claimant who has "wilfully made a false statement or representation to obtain any benefit under the provisions of this article." In our opinion, claimant knowingly gave false information as to a fact, which the Industrial Commissioner was entitled to know.

Appeal Board Decision: The initial determinations suspending the benefit rights of the claimant for a period of seven consecutive weeks, effective June 14, 1953 on the ground that he lost his employment due to an industrial controversy in the establishment in which he was employed and holding that he made a wilfully false statement on June 22, 1953 to obtain benefits resulting in a forfeit penalty of 20 effective days, are sustained. The decision of the referee is modified accordingly and, as so modified, is affirmed. (October 9, 1953)




A-750-1228
Index No. 1740D-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 12, 1953

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

Appeal Board Case Number 37,900-53

OVERTIME WITHOUT COMPENSATION

A voluntary quit because overtime work is not compensated is with good cause even though the claimant had performed such overtime without compensation for several months in the past.

Referee’s Decision: The initial determination of the local office, holding that claimant was not subject to any disqualification and was eligible to receive benefits effective February 16, 1953 is sustained. (April 28, 1953)

Appealed By: Employer

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

* * *

Claimant, an assistant food controller in a hotel, filed for benefits effective February 16, 1953. An initial determination was issued ruling that his voluntary leaving of employment was not under disqualifying conditions and he was ruled eligible for benefits. He was paid two benefits at the $29 rate. The employer protested and requested a hearing, depositing the sum of $10 as required by Section 620.1© of the Unemployment Insurance Law.

Claimant was employed at a hotel as cook and was promoted to food and beverage clerk on October 19, 1950, and then to assistant food and beverage controller on February 1, 1951, at $45 per week. He resigned his job on January 16, 1953, because he was required to work overtime without being compensated therefore, either in cash wages or compensatory time off. Up to the last six months of his employment, he was granted compensatory time off for his overtime work. Thereafter, this was not granted to him due to the pressure of business. He complained to his supervisor on numerous occasions and was told that these were the duties of his job. In addition, he was required to work a sixth day when it was busy at straight time day rate, no matter the number of hours worked. He estimated that he worked about 15 overtime hours during the first week of each month. At the time of his leaving, he had no job in view.

* * *

We make the following additional findings of fact: The claimant, in his job as assistant food and beverage controller, was not employed by the hotel under any agreement it had with the union with which it maintained contractual relations. The job category was not included in the union contract. Claimant frequently and during the six months’ period prior to his separation from the employment, was required to work overtime and more than eight hours a day for which overtime he received no additional compensation. The employer required it of him as part of his duties as assistant food and beverage controller. His regular hours of employment were from 8 p.m. to 4:30 p.m., five days a week. He was on a 37½ hour a week regular basis. The employer would require such overtime work without compensation in the future as well. The referee sustained the initial determination of the local office holding that claimant was eligible to receive benefits. The employer appeals to this Board from such adverse decision of the referee and made the deposit required by the Law.

Appeal Board Opinion: We do not agree with the contention of the employer that the claimant was not entitled to benefits under the Law because he left his employment without justification. It may be true, as the employer vigorously asserts, that the claimant had been promoted to a supervisory position involving control over distribution of food and beverages, and that attached to the job were certain added burdens, but this did not change claimant’s basic status as employee. Section 160 of the Labor Law provides as follows:

Unless otherwise provided by law, the following number of hours shall constitute a legal day’s work: * * * 3. For all other employees, except those engaged in farm or domestic service and those affected by subdivision four of section two hundred and twenty, eight hours.

This subdivision shall not prevent an agreement for overwork at an increased compensation, except upon work by or for the state or a municipal corporation, or by contractors or subcontractors therewith, and except as otherwise provided in this chapter.

It has been held that where legislation establishes a minimum for hours of labor and reserves to the persons employed discretion as to the use of their time in excess of such hours, it confers a benefit upon the classes protected. It does not make labor beyond the statutory time, if performed with the consent of the employee, illegal, nor does it require compensation to be made therefore unless it was provided in the contract of employment, But the effect of such a statute is to release the laborer from the necessity of working in excess of such hours and to entitle him to his day’s wages at the end of eight hours. The choice rests with the employee. (McCarthy v. Mayor, etc. of New York, 96 N.Y. 1; cf. People v. Phyfe, 136 N.Y. 554).

We believe that the claimant here was entitled to the benefit of the above provision of the Labor Law, and that any prior acceptance on his part of overtime employment without additional compensation, expressly or otherwise, did not constitute a waiver as to the future. Claimant was not obliged to continue in such employment to avoid being held to have voluntarily left his employment without good cause under the Law. Accordingly, we must sustain the initial determination of the local office as properly issued. Since the referee’s decision sustaining the initial determination is not reversed or modified, the employer is not entitled to return of its $25 deposit.

Appeal Board Decision: The initial determination of the local office, issued March 3, 1953, holding that claimant was eligible for benefits, effective February 16, 1953, is sustained. The decision of the referee is affirmed. (October 9, 1953)




A-750-1233
Index No. 1655-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 7, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
Health & Safety

Appeal Board Case Number 39,825-53

VOLUNTARY LEAVING – HEALTH; SUFFICIENCY OF PROOF

Doctor’s certificate that claimant "feels that riding in trains and subways causes frequent colds . . . avoidance of commutation advisable" at the most shows agreement by the doctor that claimant might feel better if commuting to the employer’s new place of business were not required but is insufficient proof that claimant was compelled to leave the job for health reasons.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days, effective May 25, 1953, on the ground that she voluntarily left her employment without good cause is overruled. (September 8, 1953)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a clerk-typist, resides in Yonkers. She worked for an employer located in mid-Manhattan for about six years through May 15, 1953. In February 1953, the employer changed its business location to the lower Manhattan area. Travel time thereto from claimant’s home did not exceed one and one-half hours. On May 15, 1953, claimant voluntarily left her employment. She submitted a written resignation to the employer, setting forth that she found it too inconvenient and tiring to commute from her home to the employer’s new place of business. Claimant filed a claim for benefits, effective May 25, 1953. On June 1 when interviewed at the local office, claimant stated in part: "The traveling was tiring and inconvenient to such an extent that I felt it was affecting my health." Claimant’s doctor certified that "patient feels that riding in trains and subways causes her to have frequent colds due to drafts and temperature changes." The doctor further stated that "avoidance of commutation advisable." On July 13, 1953, claimant was offered employment in her occupation in Yonkers with a curtain company at $40 a week, which was within the prevailing wage rate. Claimant refused the employment because she was dissatisfied with the salary and the starting hour and because she did not like the appearance of the office of the prospective employer. On August 17, 1953, claimant was offered employment in her occupation in Yonkers with another curtain company at $42 a week. She refused the employment because she would have had to join a union in 30 days. She did not wish to pay union dues. The local office issued initial determinations disqualifying claimant from receiving benefits for 42 consecutive days, effective May 24, 1953, on the ground that she voluntarily left her employment without good cause, and disqualifying her from receiving benefits, effective July 13 and August 17, 1953, on the ground that without good cause, she refused employment on each of those days. Claimant protested said initial determinations and requested a hearing. The referee overruled the initial determination with respect to voluntary leaving of employment without good cause. He sustained the initial determination with respect to refusal of employment without good cause on July 13, 1953, and held that it was unnecessary to decide whether claimant refused employment without good cause on August 17, 1953. The Industrial Commissioner appeals to the Board from the referee’s decision insofar as it overruled the initial determination with respect to voluntary leaving of employment without good cause.

Appeal Board Opinion: The referee overruled the initial determination of voluntary leaving of employment without good cause on the premise that claimant "left reluctantly and only after the firm had moved and commutation was such that her health was affected." We are unable to agree with his conclusions. There is insufficient proof that claimant was compelled to leave her job for reasons of health. The most that can be said is that claimant’s doctor agreed with claimant that she might feel better if she were not required to commute from her home to her employer’s place of business in New York City. The same might be said of practically every employed person who commutes any distance. Claimant testified at the hearing before the referee that her attendance record with the employer was satisfactory over a prolonged period and that it was not affected by the employer’s change of business location. The employer’s representative also testified at the referee’s hearing that claimant’s work record and attendance were satisfactory, both prior and subsequent to the employer’s removal to a new address. He expressed his belief that claimant left her job only because the employer had moved to the downtown Manhattan area, thus necessitating additional travel time for claimant. The record shows that claimant’s travel time did not exceed one and one-half hours. This was not excessive under the Law. Under the circumstances, we are satisfied that claimant voluntarily left her employment for personal reasons which did not constitute good cause within the meaning of the Unemployment Insurance Law, rather than for reasons of health.

Appeal Board Decision: The initial determination of the local office, disqualifying claimant from receiving benefits for 42 consecutive days, effective May 25, 1953, on the ground that she voluntarily left her employment without good cause, is sustained. The decision of the referee, insofar as appealed from is reversed. (October 1953)

COMMENTS

It is sometimes difficult to determine whether a claimant is compelled to leave or refuse a job for reasons of health. Claimants may present medical evidence in support of their contentions which, at times, is secured solely for the purpose of beclouding the true personal reason for their acts and of "facilitating" payment of benefits which are not due if the true facts are established.

The case here reported is an example. Although claimant’s doctor stated, "avoidance of commutation advisable," the Board on careful examination found such evidence insufficient to prove that claimant was compelled to leave her job for reasons of health. The countervailing evidence showed that (1) claimant’s attendance record was satisfactory over a prolonged period, (2) the employer felt that the claimant left only because of the new location of his establishment and (3) the most that could be said of the medical evidence is that claimant’s doctor agreed with her that she might "feel better" if she were not required to commute.

In another case, not reported in the Interpretation Service, the Board came to the same conclusion as in the case here reported. In that case, A.B. #38,049-53, claimant left his job to go to Florida since he suffered from a sinus condition and his doctor certified that he agreed with claimant’s suggestion that he might feel better working in a dry climate. The referee overruled a disqualification for voluntary leaving of employment without good cause on the premise that claimant was required to leave the area for his health. The Board in disagreeing with such conclusion stated:

"There is insufficient proof that claimant was compelled to go to Florida for health reasons. The most that can be said is that claimant’s doctor agreed with claimant that he might feel better in another climate. The evidence falls short of establishing a compelling reason for claimant’s leaving . . ."

It, therefore, suggests itself that medical evidence submitted be carefully and thoroughly examined for (1) sufficient of proof on the basis of the medical certificate itself and (2) sufficiency of proof on the basis of the medical certificate when evaluated with other related evidence. Among those factors which may be taken into consideration in arriving at a correct conclusion are (1) attendance record, (2) date medical certificate obtained – see Index 1650-2, (3) reason given to employer for leaving; transfer possibilities – see Indices 1650-5 and 23, (4) physical strain and being tired as differentiated from compelling health reason – see Index 1650-6 and (5) continuing detrimental health condition as differentiated from one which is temporary – see Index 1650-14.




A-750-1234
Index No. 1740D-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 28, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Violation of Agreement
Wages – Failure to Pay

Appeal Board Case number 40,464-53

VOLUNTARY LEAVING OF EMPLOYMENT – TERMINATION OF ANNUAL BONUS

A voluntary quit because a substantial annual bonus which claimant had received for many years would no longer be paid was without good cause when such payment hinged upon the financial condition of the business and the discretionary action of management and there was, therefore, no breach of the terms of employment.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective July 27, 1953 on the ground that she voluntarily left her employment without good cause is overruled. (October 16, 1953)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a production manager, was employed by a publisher of a trade paper for 15 years to July 17, 1953. Her terminal salary was $560 a month. During the last eight years of her employment she received an annual bonus of $1,000. On or about June 30, 1953, the employer’s general manager informed claimant that she would receive a bonus as of that date but that it would thereafter be discontinued. Claimant stated that under such circumstances she would not continue in her employment. She communicated with the employer’s president and requested him to rescind the action. He stated that he was not able to do so. Claimant, accordingly, left her employment on July 17, 1953. Claimant received a bonus of $1,000 as of June 30, 1953. Claimant filed a claim for benefits effective July 27, 1953. Based on an interview had with claimant and a report received from the employer, the local office issued an initial determination disqualifying claimant from receiving benefits for 42 consecutive days effective July 27, 1953 on the ground that she voluntarily left her employment without good cause. Claimant protested the initial determination and requested a hearing. The referee overruled the initial determination and the Industrial Commissioner now appeals to the Board.

Appeal Board Opinion: We are not in accord with the decision of the referee, which is based on the conclusion that "claimant had good cause to quit her job since the employer reduced her salary substantially." The credible evidence does not support such conclusion. It affirmatively appears that there was no breach by the employer of the terms of employment. Claimant was not hired with a definite understanding that she would receive an annual bonus as part of her salary. Although the employer granted claimant an annual bonus during the last eight years of her employment, it was the employer’s prerogative to discontinue such bonus in the future if it so believed such action was indicated. While claimant may have considered the bonus as part of her salary, she testified at the hearing before the referee that it was revocable "if business decreased" and that the matter was subject to the decision of the "Board of Directors." Such payment hinged upon the financial condition of the business and discretionary action of the management. Under all the circumstances herein, we hold that claimant voluntarily left her employment without god cause within the meaning of the law.

Appeal Board Decision: The initial determination of the local office, disqualifying claimant from receiving benefits for 42 consecutive days effective July 27, 1953 on the ground that she voluntarily left her employment without good cause, is sustained. The decision of the referee is reversed. (December 4, 1953)




A-750-1235
Index No. 905-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 28, 1953

INTERPRETATION SERVICE – BENEFIT CLAIMS
Filing and Certify. Requirements
DETERMINATION OF BENEFITS
Waiting Period

Referee Case Number 546-1025-53R

WAITING PERIOD, ALLOCATION OF

If a claim has been invalidated and the claimant files thereafter a valid original claim in a week for which benefits were erroneously paid, such week may constitute his waiting period in connection with the valid claim although the resulting overpayment is not recoverable by virtue of the provisions of Section 597.4.

Referee’s Findings of Fact: A hearing was held at which claimant, her witness and a representative of the Industrial Commissioner appeared. Testimony was taken. Claimant, a dressmaker, filed for benefits effective June 29, 1953. On October 23, 1953 revised initial determinations were issued ruling her ineligible during the week ending July 5 because she was not totally unemployed, ruling her overpaid $30 in benefits for the week ending July 12 and ruling that the overpayment was recoverable. Claimant was employed until June 26 when she was laid off because of lack of work. On June 16 three days earlier than her regular payday, she received a check for the current week’s wages, plus $35. This payment was made at that time because the employer was leaving for vacation. Claimant was unaware of the precise nature of the $35 payment, since there was no explanatory information on the pay stub. She returned to work on July 13 and worked until September 18. She sustained accidental injuries on September 20 and has been unable to work since then. Following a report from her employer that she had received $35 vacation pay on June 16, claimant was interviewed at the insurance office on October 1. At that time initial determinations were issued ruling her ineligible during the week ending July 5 because of the receipt of vacation pay, and ruling her overpaid $30. However, the overpayment was ruled not recoverable because there was no wilful misrepresentation on claimant’s part. It was noted that she had language difficulties. On October 13, a determination was issued ruling claimant ineligible during the week ending July 12 because she "cannot be credited twice for the same period of employment." Claimant requested a hearing on the ground that she was entitled to credit for the week ending July 12. However, the determinations were apparently rescinded and replaced by the previously described determinations issued on October 23. The insurance office records indicate that the denial of waiver of the overpayment was predicated on claimant’s request for waiting week credit for the same period for which she had received the benefits, which were deemed overpaid. At the hearing it was also contended that the overpayment was recoverable because of non-disclosure on claimant’s part. I find that claimant accepted the benefits for the week ending July 12 in good faith and that she did not make any false statement or representation and did not wilfully conceal any pertinent facts in connection with her claim for benefits.

Referee’s Opinion and Decision: As a result of the new initial determination ruling claimant ineligible in the week ending July 5 the following statutory week became a waiting instead of a compensable week. However, claimant’s rights to the benefits already paid to her cannot be affected by the new initial determination in view of Section 597.4 of the Unemployment Insurance Law. The credible evidence establishes that claimant accepted these benefits in good faith and did not make any false statement or representation and did not make any false statement or representation and did not wilfully conceal any pertinent facts in connection with her claim for benefits. The same conclusion was arrived at by the insurance office when claimant was interviewed on October 1. The diverse rulings made by the insurance office reflect a reluctance to give credit for the same period for which claimant received benefits, although a specific ruling to that effect was retracted. However, there is no basis in the statute for confusing claimant’s right to accumulate effective days in a period of total unemployment with her right to retain benefits already paid. The Legislature did not provide, in enacting Section 597.4, that the retention of benefits under that Section should have any effect on claimant’s eligibility. Since Section 597.4 refers to original claims, the waiting week is necessarily involved, with the obvious result that a new waiting week will have to be served. The Legislature saw fit not to provide for any correlation between the retention of benefits and the accumulation of benefit rights during a waiting week. There is no authority for reading into the statute a provision for offsetting the retained benefits against a future claim. The initial determination ruling that the overpayment was recoverable is overruled. The other initial determinations issued on October 23, remains in effect.

COMMENT

The same principle would apply if benefits were erroneously paid in the belief that the claimant is entitled to benefits under the federal UCV program and, in consequence, received a payment of federal benefits for a period which becomes his waiting period under his State claim.




A-750-1241
Index No. 1185-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 25, 1954

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Neglect of Duty

Appeal Board Case Number 41,112-53

PERSISTENT NEGLECT OF DUTY

Wilful and persistent failure and neglect to enforce employer’s rule designed to protect its property from theft is such a wanton disregard of the employer’s interest as to constitute misconduct within the meaning of the Law.

Referee’s Findings of Fact: A hearing was held at which claimant, and representatives of the Industrial Commissioner and the employer appeared and testified. Claimant, a timekeeper, filed for benefits effective September 14, 1953. By initial determination effective the same date, his benefits were suspended for seven weeks because of loss of employment through misconduct in connection with his employment. In the alternative, he was disqualified for 42 days effective September 14 for voluntary leaving of employment without good cause. Claimant was last employed by the same employer for approximately eight and one-half years until September 13. Part of his duties consisted of enforcing his employer’s rule prohibiting any employee from leaving the establishment with a package without a pass. During the last two years of his employment, claimant negligently permitted a number of employees to carry packages off the premises without a pass. He had been warned about such conduct several times, but persisted in negligently discharging his duties. On September 13, he was discharged because of such neglect of duty.

Referee’s Opinion and Decision: Claimant’s conduct was not of such a wanton and wilful nature as to constitute misconduct within the meaning of the Unemployment Insurance Law. However, he provoked his discharge by his persistent negligence in performing his duty. He could reasonably anticipate that his conduct would result in his discharge. His loss of employment under such circumstances is tantamount to a voluntary leaving of employment without good cause. The initial determination of misconduct in connection with the employment is overruled. The alternative initial determination is sustained. (November 5, 1953)

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee’s findings of fact are fully supported by the evidence in this case, and that no errors of fact appear to have been made, the Board adopts the findings of fact made by the referee as the findings of fact of this Board, except we further find that the employer operated a club and employed approximately 225 employees; that from time to time property of the employer was reportedly stolen from its premises; that to prevent such occurrences the employer promulgated the rule prohibiting employees from carrying packages from its premises without a pass; that claimant was stationed at the service entrance of the premises and was employed by the employer to enforce such rule in connection with his other duties; that claimant persistently neglected to enforce it during the last two years of his employment although he was repeatedly warned by his supervisor to insist on its strict compliance and was informed that his omission in that respect might result in his discharge. The Board is of the opinion that the referee made proper findings of fact, except as above supplemented. Under all the facts and circumstances herein, it must be deemed that claimant’s persistent failure and neglect during the last two years of his employment to enforce the reasonable rule of the employer and to thereby protect its property from theft was such a wanton disregard of his employer’s interests as to constitute misconduct within the meaning of the Unemployment Insurance Law. It seems to us that the protection of the employer’s property from theft was one of claimant’s most important duties and that he owed a high degree of care to the employer in that regard, which the credible evidence shows he wilfully, failed to fulfill. We are satisfied that claimant lost his employment due to misconduct in connection therewith and that he was properly suspended from receiving benefits effective September 14, 1953 for a period of seven consecutive weeks by reason thereof. In view of our decision herein, it is unnecessary to rule on the alternative initial determination of the local office which disqualified claimant from receiving benefits for 42 consecutive days effective September 14, 1953 on the ground that he voluntarily left his employment without good cause. The initial determination of the local office suspending the benefit rights of claimant for a period of seven consecutive weeks effective September 14, 1953 on the ground that he lost his employment through misconduct in connection therewith, is sustained. The decision of the referee, insofar as appealed from, is reversed. (December 14, 1953)




A-750-1243
Index No. 1650A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 25, 1954

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances and Objections
Action of Employer

Appeal Board Case Number 39,427-53

VOLUNTARY LEAVING – IMPUGNMENT OF HONESTY AND INTEGRITY BY EMPLOYER

Incompatibility with an employer ordinarily does not constitute good cause for a voluntary quit unless accompanied by factors such as resulting impairment of the claimant’s health or impugnment by the employer of claimant’s honesty and integrity.

Referee’s Decision: The initial determination disqualifying claimant for 42 consecutive days on the ground that she voluntarily left her employment without good cause and the alternative initial determination holding claimant unavailable for employment, effective June 19, 1953 are sustained. (July 28, 1953)

Appealed By: Claimant

Findings of Fact: Claimant, a knitting instructress, was thus employed with a retail yarn store in the Bronx for 22 years to May 22, 1953. Her terminal salary was $76 per week. Due to unfavorable business conditions, disagreements arose from time to time between the claimant and the employer’s wife. Such differences were precipitated by remarks of the latter pertaining to the expense incurred by the firm in operating the instruction department of which claimant was supervisor. During the final portion of claimant’s employment, the employer’s wife on several occasions accused claimant of giving instructions in knitting to persons who were not patrons of the store, which claimant considered accusations of dishonesty. Following the last of such accusations she resigned from her position. Claimant filed for benefits effective May 25, 1953 and registered for employment. On June 19, she refused employment in her occupation at $60 to $65 for a six-day week because of the rate and the hours. Claimant was on vacation from June 24 through July 18, 1953. Thereafter, her efforts in search of employment consisted of one or two personal contacts, resulting in one week of employment commencing September 14, 1953. Claimant left that employment voluntarily and became engaged in self-employment. Based on interviews with the claimant and a report received from her previous employer, the local office issued an initial determination disqualifying claimant from receiving benefits for 42 consecutive days effective May 24, 1953 on the ground that she voluntarily left her employment without good cause. A second initial determination was issued by the local office disqualifying claimant from receiving benefits, effective June 19, 1953, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience. An initial determination was issued, in the alternative, holding claimant ineligible to receive benefits, effective June 19, 1953, on the ground that she was unavailable for employment. Claimant protested and requested a hearing before a referee. The referee overruled the initial determination disqualifying her from receiving benefits, effective June 19, 1953, for refusal of employment. No appeal was taken from that portion of the referee’s decision. The referee sustained the remaining initial determinations. Claimant appealed from the portion of the referee’s decision adverse to her.

Appeal Board Opinion: The referee, in sustaining the initial determination pertaining to claimant’s voluntary leaving of her employment, concluded that the objections which prompted her resignation were personal and not compelling. We do not subscribe to this view. Ordinarily, incompatibility existing between an employee and an employer would not be justification for voluntarily leaving employment, unless it were shown that such differences impaired the employee’s health. In the instant case, although the latter element is lacking, we are persuaded that claimant nevertheless was justified in voluntarily leaving her employment since her honesty and integrity were impugned. Concededly, claimant was on vacation from June 24 through July 18, 1953 and ineligible to receive benefits for that period. After July 18, 1953 her efforts in search of employment were of a mere token nature. Claimant made only limited personal contacts in an effort to gain employment during that period. Her resignation from employment after working only one week, in order to engage in self-employment, is further evidence of her tenuous attachment to the labor market at that time. Upon all the facts and circumstances herein, we are convinced that claimant voluntarily left her employment with good cause but that she was unavailable for employment commencing June 24, 1953, when she went on vacation.

Appeal Board Decision: The initial determination of the local office, disqualifying claimant from receiving benefits for 42 consecutive days, effective May 25, 1953, on the ground that she voluntarily left her employment without good cause, is overruled. The alternative initial determination of the local office, holding claimant ineligible to receive benefits, effective June 19, 1953, on the ground that she was unavailable for employment, is modified by fixing the effective date thereof as June 24, 1953 and, as so modified, is sustained. The decision of the referee is modified accordingly. (December 24, 1953)




A-750-1244
Index 1150A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANAURY 25, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Other Offenses
Violation of Company Rule

Appeal Board Case Number 39,840-53

MISCONDUCT - FALSIFICATION OF EMPLOYMENT APPLICATION

A deliberate falsification of an application for employment constitutes misconduct within the meaning of the Unemployment Insurance Law if there is present injury or prejudice to the employer's interest.

Referee's Decision: The initial determination of voluntary leaving of employment is modified to rule that claimant's benefits are suspended for 7 weeks effective December 13, 1952, and as modified is sustained. (September 2, 1953)

Appealed By: Industrial Commissioner.

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

Claimant, a tinsmith, refiled a claim effective December 15, 1952. On November 28, 1952, claimant was hired by a manufacturer of automotive equipment. In his application, he was questioned concerning any diseases, disability or back injuries. He answered all questions in the negative concerning his physical condition. The employer thereafter ascertained that claimant had a pending workmen's compensation claim against another employer regarding a back injury. Claimant was discharged on December 12, 1952, after the employer's investigation was completed.

The employer pointed out that its interests were substantially affected to its detriment because the claimant gave false information on his application regarding his back injury; that under the Second Injury provisions of the Workmen's Compensation Law, an employer must bear the entire burden in case of an injury or aggravation of a pre-existing condition, and that an employer can obtain relief and protection under the law only if previously existing physical characteristics of the applicants are known and substantiated by detailed and accurate medical facts, compiled and registered on the employer's medical records.

Claimant falsified his employment application because he was in need of employment. He also admitted that prior to being hired he had read information on a poster in the employer's personnel office which reads:

Falsification of personnel, medical or other records will be sufficient grounds for disciplinary action ranging from reprimand to immediate discharge, depending upon the seriousness of the offense in the judgment of management.

The Board makes the following additional findings of fact: Prior to November 1952, claimant suffered an injury to his back which has been diagnosed as the first stage of arthritis in the lower back. After a hearing held on January 28, 1953 before an referee of the Workmen's Compensation Board in connection with claimant's claim for workmen's compensation, the claim was disallowed on the ground that no accident or occupational condition was established and the matter was closed. On March 6, 1953 the local office issued a revised initial determination disqualifying claimant from receiving benefits for 42 days effective December 15, 1952 on the ground that he voluntarily left his employment without good cause based upon the premise that claimant's concealment of information in his application for employment provoked his discharge. The claimant protested and requested a hearing. The employer contested the determination on the ground that claimant lost his employment through misconduct in connection therewith. The referee by decision dated May 15, 1953 sustained the initial determination of voluntary leaving without good cause. The employer appealed from such decision of the referee, pursuant to Section 621.1 of the Unemployment Insurance Law, on the ground that there were sufficient elements in the case to warrant a decision based upon misconduct in connection with employment (Appeal Board, 38,343-52). The Board by order dated July 3, 1953 remanded that case to the referee for the purpose of holding a hearing de novo on all the issues therein and rendering a new decision therein. The referee modified the initial determination of voluntary leaving of employment to hold that claimant's benefits were suspended for seven weeks effective December 13, 1953 on the ground that he lost his employment through misconduct in connection therewith and that claimant was overpaid $116 in benefits. The Industrial Commissioner appealed from such decision to the Appeal Board.

Appeal Board Opinion: This case presents alternative issues to the Board. The local office has issued an initial determination of voluntary leaving of employment on the theory that claimant, by falsifying information in his application blank, provoked his discharge. In view of the Matter of Baida, which was decided by the Appellate Division, Third Department, on November 12, 1953, affirming Appeal Board 27,157-51, claimant is not subject to a disqualification for a provoked discharge. The only question before us, therefore, is whether or not claimant lost his employment through misconduct in connection therewith within the meaning of the Unemployment Insurance Law so as to be subject to the suspension of his benefit rights for seven consecutive weeks as provided in Section 592.2 thereof. It is undisputed that in order to obtain employment, which he urgently needed, claimant falsely stated in his application for employment to his employer that he had never had a back injury or back ache or a case pending in workmen's compensation. The prejudice resulting to the employer from this concealment was that it would be subjected to an additional burden under the Second Injury provisions of the Workmen's Compensation Law in the event of a future claim by the claimant. Claimant was discharged for this reason and the employer contends that such concealment and misrepresentation by the claimant amount to misconduct within the purview of the Law. The referee in upholding the employer's position, relied on Appeal Board, 17,420-48 wherein the Board cited with approval the following definition found in Boynton Cab Co. v. Neubeck, 237 Wis. 249,259:

. . . the intended meaning of the term 'misconduct' as in (the disqualification provision) is limited to conduct evincing such wilful or wanton disregard of an employer's interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence as such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to his employer.

The referee ruled that claimant's falsification of his application for employment constituted a deliberate violation of the employer's rules and that by so doing claimant deliberately committed an act detrimental to the employer's interests so as to constitute misconduct on his part within the meaning of the Law. While we have some hesitancy in branding claimant's act as one of misconduct since it was not wantonly done but committed for the sole purpose of obtaining employment and motivated by his desire to provide for his family, we are persuaded by the authorities on this subject in our sister states that the referee's decision must stand. Under substantially similar statutes in other jurisdictions, it has been almost uniformly held that a discharge arising out of the deliberate falsification of an application for employment constitutes misconduct if there is present injury or prejudice to the employer's interest. (General Motors Corp. vs. Appeal Board, Michigan Circuit Court, Ingham County, Benefit Series Service, Vol 2, M.C. 140.2-1; Benefit Series, Volume 12, No. 11, Page 68, 13850-Mass. A; Benefit Series Service, Volume 2, Report 33-13, Ky., No. 52-148; CCH Cal. 1970.75, Appeal Board, 5286; Benefit Series Service 1951, Report 10-75-Wash. A, No. A-19013). In view of the weight of authority, as exemplified by the above decisions, we feel constrained to hold that the same result must follow in this case.

Appeal Board Decision: The initial determination of the local office disqualifying claimant for voluntary leaving of employment without good cause is modified to hold that claimant's benefits are suspended for seven weeks effective December 13, 1952 for loss of employment through misconduct in connection therewith. The claimant was overpaid $116 in benefits. The decision of the referee is affirmed. (December 24, 1953)




A-750-1248 (Rev.)
Index 1290A-14
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 9, 1954

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

Appellate Division Decision

Matter of Krystofik, 284 App. Div. 34

Appeal Board Case Number 38,921-53

SALARY OFFERED BY EMPLOYER SUBSTANTIALLY LOWER THAN THAT ON JOB ORDER

Employment which meets statutory requirements may not be refused with good cause because the wages actually offered by the employer at the job interview are lower than those specified by the Employment Service at the time of the referral.

(See Comments after Decision)

Referee's Decision: The initial determination of the local office (1) holding claimant, a sewing-machine operator, ineligible to receive benefits, effective March 19 through April 12, 1953, on the ground that she was unavailable for employment and (2) disqualifying claimant from receiving benefits effective April 30, 1953, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience are sustained. (June 4, 1953)

Appealed By: Claimant

Findings of Fact: Claimant worked as a sewing-machine operator for a manufacturer of parachutes in Buffalo, N.Y. for about 2 years to January 1953, earning about $1.60 per hour included incentive bonus. She was laid off when the factory was closed and filed a claim for benefits, effective February 2, 1953 and registered for employment. Claimant resides in Hamburg, New York. She has been in this country for four years and has a slight language handicap. On March 26, 1953, she signed a statement at the local office that she had not looked for work. Thereafter claimant furnished names of employers whom she had solicited for employment and she was reinstated in benefits, effective April 13, 1953. On April 30, 1953, claimant was referred to employment by the employment service as a sewing-machine operator at the guaranteed rate of 85 cents per hour plus piecework. This referral was in accordance with the employer's job order on file with the office. Claimant reported to the employer and was offered the guaranteed rate of 80 cents per hour, plus piece- work to commence work on May 4. Claimant was unfamiliar with the sewing-machine operation involved. Claimant did not report for work. The usual hiring rates for sewing-machine operators in the Buffalo area are from 75 cents to one dollar per hour, there being a few openings at the latter figure. Claimant desired the rate of 90 cents per hour. At the hearing before the referee on May 27, 1953, claimant was re-offered the same employment at the guaranteed rate of 85 cents per hour, but refused because she still wanted 90 cents per hour. Initial determinations were issued by the local office (1) holding claimant ineligible to receive benefits effective March 19, 1953 through April 12, 1953, on the ground that she was unavailable for employment and (2) disqualifying her from benefits, effective April 30, 1953, on the ground that she refused employment without god cause. Claimant protested and requested a hearing. The referee sustained both determinations and claimant appealed to the Board.

Appeal Board Opinion: Although it is doubtful that claimant because of her language difficulty, realized the full import of the statement which she signed on March 26, there is evidence to sustain the referee's ruling that claimant's efforts to find employment during the first period in question where so limited as to warrant the determination of unavailability. On the refusal issue the referee ruled in effect that even though the employer offered claimant a different rate than that at which she was referred, the disqualification for refusal was nevertheless proper because the employer's offer was at a rate not substantially less than that prevailing for similar work. This decision is contrary to our recent decision in Appeal Board, 38,053-53, where we said in part:

The Industrial Commissioner argues that claimant refused employment without good cause, since the offer as made by the prospective employer was at prevailing wages. Claimants are reasonably entitled to rely on the information furnished to them by the employment service, and should not be required to accept or reject at their peril a new offer at a figure substantially lower than that offered in the referral.

However, when re-offered the same employment on May 27, 1953 at the rate specified in the employer's order, claimant refused to accept the employment. We hold such refusal was without good cause, inasmuch as the employment offered was at a wage not substantially less favorable to claimant than that for similar work in the locality and was employment for which claimant was reasonably fitted by training and experience.

Appeal Board Decision: The initial determination holding claimant ineligible to receive benefits, effective March 19 through April 12, 1953, for unavailability for employment is sustained. The initial determination disqualifying claimant from receiving benefits, effective April 30, 1953, for refusal of employment without good cause is modified to make the effective date thereof May 27, 1953. The decision of the referee is modified accordingly and as so modified is sustained. (August 14, 1953)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: Claimant is a sewing-machine operator who had been earning $1.60 an hour including an incentive bonus working on parachutes. Becoming unemployed she applied to the employment service of the Division of Placement and Unemployment Insurance. She was referred to an employer by the service and was advised that the job would pay 85 cents per hour, plus piecework, which is in the nature of an incentive bonus. When she went to see the prospective employer she was offered 80 center an hour instead of 85 cents as the basic wage. She refused this offer. The local office of the Division of Placement and Unemployment Insurance made an initial determination of disqualification because of this refusal; and on review the referee sustained the determination. He held that the rate offered to claimant "though different from the rate stated by the employment office, was still within prevailing rates for her occupation in the area." This determination has been modified by the Unemployment Insurance Appeal Board by reversing that part of it based on the refusal to accept the employment offered at 80 cents an hour on the ground that claimant was entitled to rely on the information about the wage furnished by the employment service and not be required to accept or reject at her peril an offer substantially lower than the amount offered in the referral. The differential between the offer and the referral figure seems to us not substantial, but whether it is or not, the statutory test for disqualification for benefits is something different and depends on whether the refusal is of a offer "substantially less favorable" in respect of wages, hours or conditions, than those prevailing in the locality. (Unemployment Insurance Law [Labor Law, Article 18], §593, subd. 2 and subd.2 /d/). It is not disputed that 80 cents an hour, as well as 85 cents, was within the prevailing rate for this work in the locality. If offers are made by employers to applicants referred to them by the employment service differing from the amount stated in the referral, the service and the Commissioner have adequate administrative power to act fairly, prevent abuse, and protect applicants; but an offer coming within the prevailing rate has a statutory effect which we feel bound to follow. The determination of the Unemployment Insurance Appeal Board insofar as appealed from should be reversed and the decision of the referee affirming the initial determination of disqualification should be reinstated without costs. (April 24, 1954)

COMMENTS

This decision is important since the Court overruled a line of decisions heretofore rendered by the appeal Board. The Board adopted the principle that a claimant may rely on the information given him by the Employment Service at the time of the referral and that he has good cause to refuse a job offer merely because the wages actually offered to him, although still within the range of prevailing wages, are lower than those mentioned by the Employment Service. The Court has now held that offers by employers at prevailing wages must be judged by themselves in the light of the statutory provisions, and that the mentioning by the Employment Service of a rate higher than that actually offered has not bearing on the disposition of claim.




A-750-1250
Index 1150A-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

FEBRUARY 25, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Other Offenses
Violation of Company Rules

Appeal Board Case Number 7-127-53R

MISCONDUCT - FALSIFICATION OF EMPOYMENT APPLICATION

Falsely denying in an employment application of having worked for the employer before, with the knowledge that such concealment would be cause for discharge, constitutes misconduct.

Referee's Findings of Fact: A hearing was held at which claimant and representatives of the employer and of the Industrial Commissioner appeared and testified. Claimant, a laborer, filed effective November 9, 1953. By initial determination, he was ruled eligible for benefits without disqualifying conditions. The employer objected thereto, alleging that claimant lost his employment because of misconduct in connection therewith, and made the statutory deposit of $10. When claimant applied for his position, he falsely denied having worked for the employer before. During his prior employment, he had a poor attendance record and was afraid that if it became known, he would not be hired again. The application contained the warning, "it is understood and agreed that any misrepresentation by me in this application, will be sufficient cause for cancellation of the application." When the employer detected that the application contained a false statement, it suspended and, eventually, discharged claimant. The last day he worked was October 2.

Referee's Opinion and Decision: Unemployment Insurance Law, Section 592.2, provides:

"The accumulation of benefit rights by a claimant shall be suspended during a period of seven consecutive weeks beginning with the day after he lost his employment through misconduct in connection with his employment."

Not every falsification of an employment application is misconduct in connection with employment. (See Colo. A, MC-140.25-3, BSSUI; Mass. A, MC-140.25-11, BSSUI.) But such falsification is misconduct where "there is present injury or prejudice to the employer's interest." (Appeal Board, 39,840-53). This element of injury may be found in the peculiar importance of the job (see Wash. a, MC-140.25-1, BSSUI), or in additional workmen's compensation liability that would result from claimant's employment (Appeal Board, 38,840-53), or in a falsification of trade experience going beyond mere "purifying." (Ky. a, MC-140.25-7, BSUUI; 13850-Mass. A, Ben. Ser. Vol. 12, No. 11, p. 68.) While a failure to disclose a work record with another employer may not be misconduct connected with the employment for which application was made, (Del. A, MC-140.25-5, BSSUI), a fraudulent concealment of a work record with the same employer has been held to be "misconduct connected with his work." (General Motors Corp. v. Appeal Board, Mich. Ct. D MC-140.2-1, BSSUI, (Cir. Ct. Ingham Co., 1951).) The instant case comes within this principle. Claimant lost his employment due to misconduct in connection therewith. The employer's objections are sustained. The initial determination of eligibility is overruled. Claimant's benefit rights are subject to suspension for 49 days, effective October 3, 1953. The employer is entitled to a return of its deposit. (January 19, 1954)




A-750-1252
Index 1275B-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

FEBRUARY 25, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Experience and Training
Higher Skill - Opportunities non-existing
Qualifications - Skill
Refusal during Slack Period

Appeal Board Case Number 42,209-53

REFUSAL BY A MODEL, DURING SLACK SEASON, TO ACCEPT SALES JOB

A claimant whose occupation is that of a model in the garment industry and who does not have any experience as a retail sales person has "good cause" in refusing a sales job in a retail establishment, even though conditions such as these prevail: Claimant has been unemployed for an appreciable length of time; job opportunities as a model are temporarily limited; the duration of the offered job is only temporary (Christmas season); the prospective employer does not require retail sales experience; during periods when the former employer did not utilize claimant's services as a model because of diminished activity, claimant assisted other employees in work such as ticketing garments and preparing statements to customers for mailing.

(See Comments after Decision)

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective November 13, 1953 on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience is sustained. (December 11, 1953).

Appealed By: Claimant.

Findings of Fact: Claimant, a coat and suit model, had been so employed for the past eight years until July 31, 1953 when she lost her employment by reason of a lack of work. Her terminal salary was $65 per week. Although employment in the profession of model is seasonal, corresponding with fluctuations of activity in the garment industry, she assisted other employees in ticketing garments and folding statements for mailing to customers. With this minor exception, claimant performed no other services for her employer during off-season periods. She performed no clerical services for the office nor did she assist in the sale of merchandise. Claimant is a high school graduate who specialized in the study of millinery. She has had employment of approximately one year as an artist's model. Claimant has no history of employment as a salesperson. Claimant filed a claim for benefits effective August 13, 1953 and registered for employment. She was classified by the employment service as a model of coats and suits. On November 13, 1953, claimant was offered and refused to accept referral to temporary employment as a salesperson in a department store, to last for the duration of the Christmas shopping season, at a salary of $40 for a five-day , 35½ hour week, with hours from 9:15 a.m. to 5:45 p.m. The prospective employer did not require specific sales experience. Claimant's stated reason for refusing the employment was that the salary was too low. The offered employment was at wages not substantially below those which is prevailing for department store clerks in the locality. Based upon reports from the Prevailing Wage Unit of the Division of Employment, and from the Employment Service and upon an interview with claimant, the local office issued an initial determination disqualifying claimant from receiving benefits effective November 13, 1953 on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience. Claimant protested the determination and requested a hearing. The referee sustained the initial determination and claimant has appealed to this Board.

Appeal Board Opinion: The proffered employment was not one for which claimant was reasonably fitted by training and experience. Claimant's sole occupation for at least the past eight years was that of a coat and suit model and her services were continued by her employer even during normally slow periods of activity in the industry. She had no previous experience as a salesperson. The fact that experience was not required by the prospective employer cannot be decisive on the issue because that is not the test provided by law. What controls is not the mere ability of the claimant to do the work which is offered but rather whether the claimant is reasonably fitted therefor by training and experience. There must be some reasonable relationship between what's offered and what was previously performed. We are not unmindful that precise similarity of proffered employment is likewise not required but there should be some relationship to the employee's experience. The wage offered claimant was $40 per week. Claimant, in her last employment, earned $65 per week. The disparity between the wage offered claimant and that which she had received is so great that she was further justified in refusing the offer, because it clearly indicated that the offer was outside claimant's classification.

Appeal Board Decision: The initial determination of the local office, disqualifying claimant from receiving benefits effective November 13, 1953 on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience, is overruled. The decision of the referee is reversed. (January 15, 1954)

COMMENTS

  1. A similar problem is encountered when retail sales jobs, and particularly temporary jobs, are offered to claimants with other occupations, such as claimants in the theatrical professions, who have no work history in the offered field. The same principle must apply.

  2. The decision here reported should not be followed if evidence can be obtained, through testimony by the employer or otherwise, showing that the claimant, by virtue of his occupation (model, actor, etc.), has acquired the particular qualifications for the offered work which make him a desirable employee for this purpose. It is intended to seek a further test if such additional factors can be presented in the adjudication process. They were not included in the evidence of the case here reported. It is only for this reason that no further appeal was taken.




A-750-1254
Index 1460D-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MARCH 12, 1954

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

Appeal Board Case Number 41,516-53

TOTAL UNEMPLOYMENT, QUESTION OF - BACK PAY AWARD WITHOUT REINSTATEMENT

"Total unemployment" did not exist for a period covered by a settlement on an arbitration of a claim of wrongful discharge regardless of the fact that the agreement provided for a waiver of reinstatement; a contention that such monies, under the circumstances, were a dismissal payment was not accepted.

Referee's Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective August 24, 1953, through October 16, 1953, because of lack of total unemployment and charging him with an overpayment of $22.50 in benefits is overruled. (November 25, 1953)

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant, a bar cashier, filed an original claim for benefits effective August 24, 1953 and reported regularly thereafter. Based on information elicited from the claimant at an insurance interview held at the local insurance office on November 2, 1953, which indicated a lack of total unemployment, the local office issued an initial determination holding he was ineligible to receive benefits effective August 24, 1953 through October 16, 1953, on the ground that he was not totally unemployed and that he was overpaid $22.50 in benefits. Claimant had been employed by a hotel until August 21, 1953, when he was summarily discharged. He protested the employer's action to his union and a complaint was filed against the employer charging him with a wrongful discharge. A demand was made for claimant's reinstatement and the payment of wages for the intervening period between the wrongful discharge and reinstatement. The representatives of the parties failed to adjust the complaint and the matter was submitted to an impartial chairman for adjudication. A hearing was scheduled for October 7, 1953, and the impartial chairman adjourned the matter for an informal conference to be held at his office at 3 p.m. the same day to afford the parties an opportunity to settle the claim amicably. This meeting culminated in a settlement which was embodied in a letter agreement providing for a waiver of reinstatement and the payment of eight weeks salary to claimant as of the payroll week of October 16, 1953. Shortly thereafter, payroll deductions for social security and the like were made by the employer and a check for the balance thereof was forwarded to the claimant. The master union agreement governing the industrial relations between the hotel association and the union empowered the impartial chairman solely with the right to order reinstatement with or without back pay. No provision was made for severance pay. Claimant protested the determination and requested a hearing. The referee overruled the initial determination and the Industrial Commissioner now appeals to this Board.

Appeal Board Opinion: The referee in overruling the initial determination concluded that the consideration of the settlement represented dismissal pay and that the situation was no different from that in which claimant receives damages for breach of a contract of hire. We do not subscribe to that view. The monies paid by the employer to the claimant were monies paid to him on account of wages lost for a stipulated portion of time due to his discharge. Such monies were not a dismissal payment made by the employer. In prior decisions involving similar circumstances it has been consistently held that such payments constitute "wages" as defined in the law and the recipient of benefits in such cases have been deemed to have continued in employment. This principle has been applied to situations involving the payment of awards; pursuant to mutual agreement between the parties (Matter of Tonra, 283 N.Y. 186, affirming Appeal Board, 1019-39); pursuant to an order of the National Labor Relations Board (Matter of Mccoy, 262 App. Div. 790 and Matter of Skutnik, 268 App. Div. 357, affirming Appeal Board, 9623-43); and a consent decree entered in the United States Circuit Court of Appeals (Appeal Board, 21-38). In a more recent case, Matter of Stewart, 279 App. Div. 500 affirming Appeal Board, 26,776-51, in deciding the benefit rights of claimants under a similar situation, the Court held "The receiving of moneys so referable to an on account of wages in employment, even when the performance of labor therein has been so interrupted, does violence to the concept of total unemployment as viewed in the declared spirit and purpose of the Unemployment Insurance Law. (Labor Law, Section 501)" We therefore hold that the claimant continued in employment during the period in issue and was not entitled to any benefits received by him.

Appeal Board Decision: "The initial determination of the local office holding claimant ineligible to receive benefits effective August 24, 1953 through October 16,1853, because of lack of total unemployment and that he was overpaid $22.50 in benefits, is sustained. The decision of the referee is reversed. (February 5, 1954)



A-750-1258
Index 1185-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MARCH 12, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Violation of Company Rules

Appeal Board Case Number 42,830-54

MISCONDUCT, QUESTION OF; CLOSING STORE PRIOR TO OFFICIAL CLOSING TIME

The failure of a store manager to keep his store open until the known official closing time, such act being a deliberate violation of an important company rule and resulting in prejudice to the employer's interests, constitutes misconduct.

Referee's Findings of Fact: A hearing was held at which claimant and representatives of the employer and of the Industrial Commissioner appeared. Testimony was taken. Claimant filed for benefits effective November 30, 1953. By initial determination she was disqualified for 42 days effective November 30, for voluntary leaving of employment without good cause. In the alternative, her benefits were suspended for seven weeks effective November 19, for loss of employment because of misconduct in connection therewith. For three years claimant was employed by a chain of retail candy stores as a salesperson and manager. She was discharged because she closed her store before the specified hour. It had come to the employer's attention that claimant had been in the habit of closing her store before 6 p.m., the specified closing hour. On November 18, the salesmanager visited claimant's store at 5:40 p.m. and four customers trying to enter and the door shut. The displays had already been removed from the windows. After the manager knocked on the door for some time, claimant appeared in her street attire, and upon investigation, the sales manager found that claimant's money had all been checked out.

Referee's Opinion and Decision: Claimant may not be disqualified for voluntary leaving her employment without good cause, since she was discharged. However, her benefits were correctly suspended for seven weeks effective November 19, since she lost her employment by actions constituting misconduct within the meaning of the Unemployment Insurance Law. Claimant was aware that she was not to close her store before 6 p.m. Regardless of previous incidents, there is no question but that on November 18 she failed to keep the store open until 6 p.m. as required. This was a deliberate violation of an important company rule, and resulted in serious prejudice to the employer's interests. It was misconduct in connection with her employment. The initial determination that claimant voluntarily left her employment without good cause is overruled. The initial determination that she lost her employment because of misconduct in connection therewith is sustained. (January 22, 1954).

Appealed By: Claimant

Appeal Board Opinion and Decision: The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The decision of the referee is affirmed. (February 18, 1954)




A-750-1260
Index No. 1605C-4
Index No. 1605D-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 12, 1954

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous Employments

Appeal Board Case Number 42,399-54

APPLICATION OF APP. DIV. DEC., MATTER OF EMERY (SELF-EMPLOYED CLAIMANT NOT TOTALLY UNEMPLOYED)

The principle established by Court decision (Matter of Emery; A-750-1207) that a self-employed claimant is not totally unemployed does not mean that self-employment constitutes "employment" for any of the other purposes of the unemployment insurance law.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective October 19, 1953, on the ground that he voluntarily left his employment without good cause is overruled. (December 21, 1953)

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a jig-builder’s helper, was last employed at an aircraft factory from December 15, 1951 to April 17, 1953. He left that employment to enter into business for himself, of a temporary nature, and for the summer season only. He was opening a luncheonette at Southampton. He invested approximately $14,000 in this business, and in connection therewith, obtained a summer license to sell beer. He started the business June 1 and kept it open until September. Claimant filed a claim for benefits effective October 19, 1953 and registered for employment. On November 4, 1953, in an interview at the local office, claimant asserted that he quit his job in April "to go into a summer business selling soda-ice cream-luncheonette products in Rose Grove, Southampton. ***I opened in early June – I quit April 17th to arrange for opening the business. I closed this business around the latter part of September. ***I expect to open next Spring. I am seeking work now ***." Based on the interview with claimant, the local office issued an initial determination disqualifying claimant from receiving benefits for 42 days effective October 19, 1953, on the ground that he voluntarily left his employment without good cause. Claimant protested this determination and requested a hearing. The referee overruled the determination and the Industrial Commissioner now appeals to the Board.

Appeal Board Opinion and Decision: The referee, in overruling the initial determination of the local office, held that a claimant who leaves a job to go into business for himself quits with good cause within the meaning of the Unemployment Insurance Law, citing Appeal Board, 17,480-48. This conclusion, he said, was fortified by the decision in Matter of Emery 281 App. Div. 426, affirming Appeal board, 30,879-52, holding that self-employment was equivalent to ordinary employment under the Law. In numerous cases, the referee added, the Board has held that a worker quit with good cause to take other employment. We do not believe the Emery case is determinative of the issue herein, since the court in that case appears to have passed on the definition of "total unemployment" only and had no intention of extending its interpretation of the term, "employment" as used in Section 522 of the Law to other instances where that term appears in the statute. In this case we find that the claimant left his employment to enter a business of a temporary nature for the summer season at Southampton. In Appeal Board, 35,458-52, the Board held that a claimant did not have good cause for leaving his employment within the meaning of the Law where his self-employment was of a temporary nature and would terminate by Labor Day. The Board thus distinguished its prior decision in appeal Board, 17,480-48. See also, Appeal Board, 42,280-54. We therefore hold that in the instant case the initial determination was properly issued. The initial determination of the local office disqualifying claimant from receiving benefits for 42 days effective October 19, 1953, on the ground that he voluntarily left his employment without good cause, is sustained. The decision of the referee is reversed. (February 11, 1954)

COMMENTS

  1. A.B. 35,458-52 cited in the decision has been reported under A-750-1180 and A.B. 17,480-48 under A-750-937.
  2. The decision is here reported for re-emphasis of the interpretation reflected in the "rule." This interpretation by the Appeal Board is in full accord with item 8 of the Comments under the report of the decision of the Appellate Division in Matter of Emery (A-750-1207).



A-750-1263
Index 1735C-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MARCH 29, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Violation of Employer's Agreement

Appeal Board Case Number 41,351-53

VOLUNTARY LEAVING AFTER BEING ASSIGNED DUTIES DIFFERENT FROM THOSE FOR WHICH HIRED

A claimant hired for a highly skilled occupation (head bookkeeper) but who is assigned lower tasks without prospects to perform the work in the higher skill has good cause for leaving the employment.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective October 5, 1953 on the ground that she voluntarily left her employment without good cause, in consequence of which she was charged with an overpayment of $30 in benefits, is overruled. (November 18, 1953)

Appealed By: Industrial Commissioner.

Findings of Fact: claimant has about 20 years experience as an office manager and accountant. On September 28, 1953, as a result of her own efforts, she obtained employment as a full-charge bookkeeper at $80 a week with a manufacturer of zippers. The employer's president told claimant at the time of her hiring that she was to have full charge of the office and that she was to perform the duties of a head bookkeeper. Claimant was further informed that the services of the employer's head bookkeeper were unsatisfactory and that she was to replace him as soon as she was "broken in" as head bookkeeper. Claimant, during her first week of employment, was assigned mainly clerical tasks and incidental bookkeeping duties of a nature usually performed by assistant bookkeepers. She was not placed in charge of the office. At the end of the week, claimant told the employer's president that she was leaving because she had been assigned duties different from those for which she was hired and because the head bookkeeper was not instructing her in the performance of those duties. She further stated that the head bookkeeper will "never give me a chance to be the head bookkeeper." The employer's president answered, "I guess that's right," and he informed claimant that she had been hired in order to enable the employer to catch up with the work which claimant had been performing. Claimant thereupon on October 2, left her employment. She filed a claim for benefits effective October 5, 1953 and registered for employment. Based upon an interview with claimant and information from the employer, the local office issued an initial determination disqualifying claimant from receiving benefits for 42 consecutive days effective October 5, 1953 on the ground that she voluntarily left her employment without good cause, in consequence of which she was charged with an overpayment of $30 in benefits. Claimant protested the initial determination and requested a hearing. The referee overruled the initial determination of the local office, from which decision the Industrial Commissioner appealed to the Board. On November 2, 1953, claimant obtained employment in her usual occupation at $100 a week. She remained in such employment until at least February 9, 1954.

Appeal Board Opinion: We agree with the conclusion and result reached by the referee. In our opinion, the referee properly found "that the duties claimant performed were different from the duties of the job for which she was hired. This constituted a breach of the employment agreement. She gave the job a reasonable trial. Her leaving of the employment was with good cause under the Unemployment Insurance Law." The employer's president testified at the hearing before the Board that claimant had been hired to perform the duties of a head bookkeeper whom she was supposed to replace; that she had not been afforded the opportunity to perform such duties during the period of her employment although she was considered by the employer fully qualified to do so. In point of fact, claimant had been assigned purely clerical tasks and incidental work of a nature usually performed by assistant bookkeepers. Under all the facts and circumstances herein, we hold that claimant's leaving of employment was with good cause. It follows that claimant was not overpaid in benefits.

Appeal Bard Decision: The initial determination of the local office, disqualifying claimant from receiving benefits for 42 consecutive days effective October 5, 1953 on the ground that she voluntarily left her employment without good cause and charging her with an overpayment of $30 in benefits, is overruled. The decision of the referee is affirmed. (February 18, 1954)




A-750-1265
Index 1160-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MARCH 29, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Attitude toward Employer

Appeal Board Case Number 515-44-54R

MISCONDUCT, QUESTION OF; PROFANITY ADDRESSED TO SUPERVISOR

Profanity addressed to a supervisor in the presence of co-workers may constitute misconduct within the meaning of the unemployment insurance law.

Referee's Findings of Fact: A hearing was held at which claimant, a witness for and a representative of her employer, and a representative of the Industrial Commissioner appeared. Testimony was taken. Claimant, a stenographer-typist, filed for benefits effect December 8, her benefits were suspended for seven weeks because of loss of employment through misconduct in connection with her employment. She was also ruled ineligible because of unavailability for employment effective December 8. Claimant was one of many persons who comprised her employer's typing pool. On several occasions her supervisor had returned work to claimant which the supervisor considered unsatisfactory. On December 7 the supervisor returned some work and reprimanded claimant because she believed the work was not up to claimant's capability. Claimant believed the supervisor was prone to fault-finding. She addressed the supervisor with profanity, in the presence of other coworkers. The incident was referred to a supervisor, who discharged claimant. Claimant was in an advanced stage of pregnancy. She expected her child in March and intended to work only until February 1. Her efforts to secure employment consisted of applying to several employers in the Bronx, where claimant resides, on December 14. Thereafter she telephoned an office which specialized in the placement of temporary office workers. She abandoned all job-seeking efforts by late December.

Referee's Opinion and Decision: The public use of profanity addressed to a supervisor is contrary to the best interests of an employer, since it lessens respect for supervision and lessens office morale. Claimant's loss of employment because of the incident described was due to misconduct under the Unemployment Insurance Law. Her benefits were accordingly subject to suspension for the seven-week statutory period. Since claimant abandoned all job-seeking efforts before the expiration of the seven-week suspension period, she was unavailable for employment thereafter. The initial determinations are sustained. (February 10, 1954)




A-750-1267

Index 755 C.4

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

MARCH 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Days - Hours

A.B. 39,760-53

AVAILABILITY - RESTRICTION TO NON-EXISTENT CUSTOMARY NIGHT SHIFT FACTORY WORK

Claimant who restricts her employment to night shift factory work, which she previously performed because of compelling domestic circumstances, is unavailable within the meaning of the Law when no opportunities for such type of work currently exist in the area.

Referee's Findings of Fact: A combined hearing was held at which some of the claimants and representatives of the employer and of the Industrial Commissioner appeared. Testimony was taken. Claimants, armature connectors and winders, were formerly employed by a manufacturer of electrical motors on the evening shift from 6:00 p.m. to midnight. Except for claimant Br, they filed for benefits effective July 6, 1953. Claimant Br filed her claim effective July 13. Each claimant was declared ineligible by an initial determination for unavailability for unemployment effective the date of her resignation for benefits. The basis for the ruling is that claimants restrict their availability to work from 6:0 p.m. to midnight and there is no reasonable opportunity of their finding such employment. It is also alleged that they did not make an active search for employment. Claimants are unwilling to work before 6:00 p.m. because they have young children. They are able to work from 6:00 p.m. to midnight because at that time their husbands are at home. During the day, claimants are generally without transportation, since their husbands use the single-family automobile for travel to work. On July 2 there was a general layoff at claimant's factory for lack of work, and while the employer at that time expected to recall claimants in or about the month of October, he testified at the hearing that he had not as yet obtained any contracts for work and could not predict when claimants would return to work. In claimants' community there have been, from time to time, a few factories employing women on the shift from 6:00 p.m. to midnight, but since at least July, there has not been any opportunity for claimants to work. Claimants are seeking factory work within a reasonable distance of their homes and they are not willing to do waitress work or work of that nature. They formerly earned $1.35 an hour and while they would be willing to work for $1 an hour, they have no desire to work for 75 cents an hour, the rate generally paid for unskilled work in the area. Until claimants were interviewed in or about the middle of July, they had not looked for work anywhere. Subsequently, they made some inquiries, but their search for employment has been hampered because of their lack of transportation and the scarcity of factories employing women during the hours that they can work. A few factories employ women on a full eight-hour shift to midnight and many factories employ only men on the last shift.

Referee's Decision: In order to be eligible for benefits a claimant must be available for employment which has been defined as a readiness, willingness, and ability to work. But that is not the sole test. If restrictions and conditions are imposed, such as the hours during which a claimant can work, then it must first be determined whether the restrictions are reasonable, and secondly whether after taking into consideration such restrictions, a fair and reasonable prospect of securing employment remains. I have no doubt that claimants are ready, willing and able to work, and if the opportunity presented itself of obtaining a factory job from 6:00 p.m. to midnight at $1 an hour within a reasonable distance of their homes that they would accept such jobs. However, the possibility of such opportunity arising is too remote that to all intents and purposes it does not exist. The circumstances which required claimants to work from 6:00 p.m. to midnight are compelling considering the fact that they have young children. Claimants have not made an active search for work, but that perhaps may be explained by the lack of places to which they can apply. However, since they have been unemployed for two months and there appears to be little or no prospect at this time that they will become employed again, they are ineligible for benefits. The respective initial determinations are sustained. (9/1/53)

Appealed By: Claimants.

Appeal Board Opinion: After a careful review of the record, testimony and evidence adduced before the referee and before the Board, and due deliberation having been had thereon, and having found that the referee's findings of fact and conclusions of law made by the referee as the findings of fact and conclusions of law of this Board, except that we make the following additional findings of fact: The evidence produced at the hearing before the Board disclosed that there were no jobs to be had during the months of July, August and part of September, 1953 in Rockland County in factories, which operated night shifts for women, between the hours of 6 and 12 p.m. Although there were some factories or establishments which did operate night shifts for women during these months in the adjoining Bergen County, the distance from claimants' place of residence to those establishments was so great and the rate of pay and number of hours of employment, which were available were so small, that claimants found it unprofitable to accept such employment. There were several newspaper advertisements for factory jobs for women during night shifts in Bergen County, but claimants were unwilling to accept these jobs and did not apply for them. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case, except as above stated. The decision of the referee is affirmed. (3/5/54)




A-750-1279
Index 1020.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MAY 10, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
HEARING AND APPEALS
Reopening of Cases

Appeal Board Case Number 544,190-54R

UNREASONALE DELAY IN REQUESTING REOPENING OF CASE UPON DEFAULT

Although leave to apply for reopening of a Referee decision is given to a claimant who failed to appear at the hearing, such application may be denied by the Referee if there was an unreasonable delay in making it, because of claimant's lack of due diligence.

Referee's Findings of Fact: A hearing was held at which claimant and representatives of the Industrial Commissioner appeared and testified. Claimant, an assistant buyer, filed for benefits effective April 21, 1952. By initial determination effective August 18 she was disqualified for refusal of employment without good cause and in the alternative ruled ineligible because of unavailability for employment. She was ruled overpaid $150. The initial determination was sustained in Case 544-1168-52R with leave given to claimant to apply to reopen the case upon giving satisfactory explanation for the default. She contended she did not attend that hearing on December 31, 1952 because she did not receive notice of the hearing; further that she did not receive notice of the decision. She applied to reopen the case February 18, 1954. This was the first time she had been in the insurance office since October, 1952. The notice of the December 31, 1952 hearing and notice of the decision were correctly addressed to claimant. These notices were not returned to the Referee Section. Claimant was unable to explain their non-delivery. She does not recall that other mail went astray during this period. On August 14, 1952, a former employer wrote to claimant and requested her to communicate with it at her earliest convenience "for an interview." The letter further stated that, "We would like to see you in reference to an opportunity for employment." Claimant contended that in some fashion this letter was delivered by the postman so that it lay unnoticed by her for several weeks. When she finally discovered the letter, she telephoned the employer sometime in September and was interviewed a week later. There was then no job available for her. According to the employer, she would have been offered employment as an assistant buyer at $60 a week. It was contended that claimant's efforts to find work were not diligent. She was interviewed at the insurance office September 26 and September 29, at which time she listed some contacts for employment. She contended that as she was seeking an executive position she could not be too aggressive in making employer contacts. She became employed October 6.

Referee's Opinion and Decision: The Commissioner's representative opposed claimant's application to reopen Case 544-1168-52R, on the ground that claimant unreasonably delayed in making such application. He contended that because of such delay he was unable to present evidence and witnesses with reference to the issues and was unable to question claimant with respect to her availability for employment because the lapse of time made it unreasonable to expect that claimant would recall details of her search for work. This position is well taken. Interrogation as to the refusal of employment issue was not hampered by the lapse of time involved but if was difficult to question claimant concerning her availability. Her failure to promptly respond to the communication of her former employer was some indication that she was not ready, willing and able to work during the period in issue. Claimant's contention with respect to the non-delivery of the various notices is rejected. Had those notices not been delivered to the addressee they would have been returned by the post office. Under the circumstances, claimant's application to reopen the default is denied. The initial determinations remain in effect. Claimant was overpaid. (March 17, 1954)




A-750-1280
Index 1285-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MAY 10, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Union Relations

Appeal Board Case Number 42,766-54

REFUSAL - LOSS OF UNION MEMBERSHIP

If acceptance of proffered employment would not interfere with claimant's retention of membership in his union, refusal because of immediate loss or suspension of some membership benefits, such as hospitalization, and because of potential further losses, such as retirement and life insurance benefits, in the event of continued employment in industries outside the union's jurisdiction, does not constitute good cause for refusal of such employment.

Decision

This is an application by claimant, pursuant to Section 534 of the Unemployment Insurance Law, to reopen and reconsider the decision rendered by M., a member of this Board, on December 31, 1953 in Appeal Board, 40,282-53, affirming the decision of the referee dated September 21, 1953, which sustained the initial determination of the local office disqualifying claimant from receiving benefits effective June 26, 1953 on the ground that, without good cause, he refused employment for which he is reasonably fitted by training and experience. On January 5, 1954 the said decision of the Board was filed in the Department of Labor. On January 22, 1954, claimant made an application to the Board to reopen and reconsider its decision dated December 31, 1953 on the ground that the Board did not have before it all of the pertinent facts relating to claimant's right to benefits under the Law and further that claimant was not prepared to produce such proof. The Board thereupon determined to hold a further hearing for the purpose of considering said application and for the taking of such additional proof as might be offered. The matter first came on to be heard before the Board on March 2, 1954 after all parties appeared and were accorded a full opportunity to be heard. A written statement submitted on behalf of claimant was considered by the Board. Based upon the entire record and testimony in this case, the Board makes the following:

Findings of Fact: Claimant, a packer of garments in the men's clothing industry in New York City for about 20 years, lost his employment on March 27, 1953 because of lack of work. He filed a claim for benefits effective April 27, 1953 and registered for employment. He is a member of the A. union and has earned between $60 and $70 weekly. The men's clothing industry in claimant's locality is highly unionized. The months of June and July are usually a slow season in this industry and activity usually increases towards the latter part of July or the beginning of August. On June 26, 1953, claimant was offered employment as a packer of ladies' garments at a salary of $50 for a 40-hour week. Claimant refused the employment because he claimed that the salary was insufficient and also because he did not have any experience as a packer of ladies' coats. In his area most packers in claimant's classification earn between $1 and $1.35 an hour. In March 1950, claimant was employed as a packer by a firm selling both ladies' and men's garments. The constitution of claimant's union (Article 9, Section 3) provides for summary suspension pending the filing of charges and hearing of any member who becomes a member of any other labor organization. Claimant would not have been required to join any other union as a condition of accepting the proffered employment. The constitution places no restriction upon engaging in occupations outside the men's clothing industry. Claimant, had he accepted the proffered employment, might have continued as a member in good standing of A. union provided he continued to pay dues. Packers in the ladies' garment industry were not then organized by any union. Members of claimant's union enjoy the privilege of paid-up group life insurance in the amount of $500, disability insurance in the amount of $20 per week for a period of 13 weeks in any calendar year, hospitalization and surgical benefits in accordance with a schedule of allowances and a retirement benefit of $50 per month upon attaining the age of 65 or in case of total disability. If a member accepts employment outside of the men's clothing industry, it is provided that hospitalization, surgical and disability benefits are to cease immediately (Handbook of Information on Life, Accident and Sickness Insurance, Section VIII). In such event, group life insurance protection continues for a period of six months after which it is automatically terminated (Handbook, Section XI). Such protection may be continued after termination of an individual coverage basis without medical examination at a premium based upon the attained age of the insured (Handbook, Section XII). This privilege of continuing coverage on an individual basis after termination does not extend to hospitalization, surgical or disability benefits. All forms of insurance inuring to the benefit of union members are reinstated after return to the clothing industry and continuous employment therein for six months by a contributing employer (Handbook, Section XIII). With respect to retirement benefits, it is provided that eligibility therefor is conditioned upon continuous employment in men's clothing industry for at least 20 years and employment therein for at least two years immediately preceding the date of application with an who is a contributor to the Retirement Fund. Employment is deemed continuous as to duration if it consists of at least 26 weeks during each calendar year. There is also a requirement of 10 years continuous membership in the union immediately preceding the date of application. All rights to retirement benefits are deemed forfeited in the event the union member leaves the industry for any other type of employment and is so engaged for a period of 24 consecutive months (Pamphlet, Information Regarding Retirement Benefits, Section A,B,F).

Opinion: The employment offered claimant was one for which he is reasonably fitted by training and experience. Precision in the matching of skills is not required. There was a reasonable relationship between what was offered claimant and the work he previously performed. The wages were not substantially less favorable to claimant than those which prevailed in the locality for similar work. An occupational wage survey of average hourly earnings for selected occupations reported by the United States Department of Labor, Bureau of Labor Statistics for the New York City area under date of February 19, 1953 discloses that of 5,181 persons employed in claimant's job classification, 2,741 earned between $1 and $1.35 per hour, and 1,851 earned between $1.35 and $1.70 per hour. Of the total, 1,796 earned less than $1.25 an hour. The offer of employment was made at a time when to the knowledge of claimant and based upon his previous experience, employment in his own industry was virtually impossible to obtain. A union representative who was called to testify in behalf of claimant stated that there were no jobs available for claimant in the men's industry at the time of the job offer. Under these circumstances, claimant refused employment without good cause within the meaning of the Law, unless the refusal may be excused on the ground that acceptance of the proffered employment would have affected claimant's retention of his union membership. Unemployment Insurance Law, Section 593, subdivision 2 provides inter alia 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 acceptance of such employment would either require the claimant to join a company union or would interfere with his joining or retaining membership in any labor organization.

Claimant was not required to join a union in order to accept the employment. It is also clear that acceptance of the proffered employment would not have affected claimant's existing union membership per se as distinguished from the incidental privileges attaching to union membership. Acceptance of the proffered employment would have entailed nothing more than the loss of hospitalization and surgical benefits for which claimant could re-qualify upon returning to his former industry. Disability benefits provided by the union are an alternative to those under the Workmen's Compensation Law so that no substantial loss in this regard would have resulted from accepting the employment. Life insurance protection did not cease automatically but continued in force for a period of six months after the acceptance of employment in another industry. Retirement benefits remained unaffected so long as claimant had 26 weeks of employment with an employer who is a contributor to the fund, during the calendar year for the period of time specified. The complete loss of retirement benefits could be occasioned only by employment in some other industry for a consecutive period of 24 months. Thus, it is clear that material prejudice to claimant was unlikely since the offer of employment was made during a period of diminished activity in claimant's industry and he was free to return thereto with the resumption of greater activity therein. The interference with claimant's membership benefits (as distinguished from membership itself) which the acceptance of the proffered employment would entail would at the very worst have been a relatively minor character. In any event, it cannot be said that acceptance of the proffered employment would have interfered with claimant's retention of membership in a labor organization within the scope and intent of the Unemployment Insurance Law.

Decision: Claimant's application to reopen and reconsider the decision of Mortimer H. Michaels, a member of this Board, dated December 31, 1953, in Appeal Board, 40-282-53, is hereby granted, and upon such reconsideration the original decision is adhered to. The initial determination of the local office, disqualifying claimant from receiving benefits effective June 26, 1953 on the ground that, without good cause, he refused employment for which he is reasonably fitted by training and experience, is sustained. The decision of the referee is affirmed. (April 9, 1954)




A-750-1281
Index 1310-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MAY 10, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Unemployment, Due to

Appeal Board Case Number 43,494-54

LEAVING EMPLOYMENT TO COMPEL EMPLOYER TO RESTORE FORMER UNION CONTRACT RATES

Where the employer reduced offered wages to piece work rates lower than those provided in the union agreement, leaving employment in concert in order to compel the employer to restore the former rates constitutes loss of employment due to an industrial controversy in the establishment.

Referee's Findings of Fact: A hearing was held at which claimant and representatives of her union and of the Industrial Commissioner appeared. Testimony was taken. Claimant, a sewing-machine operator, filed for benefits effective November 23, 1953. By initial determination effective January 11, 1954, her benefits were suspended for seven weeks because of an industrial controversy in the establishment in which she was employer and she was ruled overpaid $26. Claimant last worked for a manufacturer and contractor on handkerchiefs, on or about December 28, 1953. Her employer then had no more work for her. It had been slow for some time. Claimant and co-workers were called to the employer's establishment on January 11, 1954 and asked if they would perform work at a rate below that provided in a union agreement. Claimant and her co-workers refused to work below the contract rate. The employer thereupon did not accept the work which he had in mind at the cut rate. Acceptance of the work below the union rate would have subjected the workers to disciplinary action by their union.

Referee's Opinion and Decision: I reject the contention that claimant lost her employment due to an industrial controversy in the establishment in which she was employed. Claimant's period of unemployment continued because the employer was unable to furnish work at the rate specified by the union contract. There is some similarity between the facts in the instant case and those of Matter of Cohen, 283 App. Div. 143, affirming Appeal Board, 31,708-52. The initial determinations are overruled. Claimant not overpaid. (March 10, 1954).

Appealed By: Industrial Commissioner.

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee's findings of fact are fully supported by the evidence in this case, and that no errors of fact appear to have been made, the Board adopts the findings of fact made by the referee as the findings of fact of this Board, except that we find that the employees of the establishment, with the consent of the executive board of their union local, may agree to work for less than the piecework rates stipulated in the existing union agreement. The claimant and her co-workers acting in concert on January 11, 1954, rejected the employer's offer of renewed employment at lower piecework rates and as a result thereof, the employer was compelled to withdraw from production the material on which the claimant and the other employees in the establishment refused to work unless paid the union contract piecework rates for such work. The action of the claimant and the other employees was approved by their union. Although we have adopted the findings of fact of the referee, except as hereinabove stated, we do not agree with the conclusion reached by him that the claimant did not lose her employment because of an industrial controversy in the establishment in which she was employed. We are of the opinion that the claimant's unemployment subsequent to January 11, 1954, was the direct result of an industrial controversy within the meaning of the Unemployment Insurance Law. Claimant and her co-employees resisted the employer's demand for a modification of the piecework rates in the establishment. In order to compel the employer to rescind his offer of lower piecework rates and to restore the former rates, all of the production employees in the establishment, including claimant, engaged in concerted action in rejecting the employer's offer of work when they walked out of their place of employment. Their position in the dispute with the employer was approved by their union. The initial determination of the local office suspending the accumulation of benefit rights by the claimant for seven consecutive weeks effective January 11, 1954, on the ground that she lost her employment because of a strike, lockout or other industrial controversy in the establishment in which she was employed and that she was overpaid $26 In benefits, is sustained. The decision of the referee is reversed. (April 15, 1954)




A-750-1282
Index 1700-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MAY 10, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Prospects of Other Work

Appeal Board Case Number 43,319-54

VOLUNTARY LEAVING OF EMPLOYMENT - EXPECTANCY OF OBTAINING OTHER EMPLOYMENT

Voluntarily leaving employment without having any other definite job is without good cause notwithstanding a hope or expectancy of obtaining other employment as a result of pending negotiations with a prospective employer.

Referee's Findings of Fact: A hearing was held at which claimant and representatives of the employer and Industrial Commissioner appeared and testified. Claimant, a telephone operator, filed a claim for benefits effective November 23, 1953. By initial determination claimant was disqualified for 42 consecutive days from that date because of voluntary leaving of employment without good cause. Claimant resides in Bethpage. She was employed from October 13 to November 19, 1953, by a title insurance company in Manhattan at $65 a week. She left that employment because she had been hired by an aircraft company at Farmingdale, Long Island as a typist at $61.20 to start, subject to a physical examination. On Saturday, November 14, claimant went to the aircraft company and applied for a job. She was given a test and qualified for the position of typist. After filling out various papers, claimant was requested to wait for a physical examination. Because of the congestion, she could not be examined that day and an appointment was made to examiner her the following Saturday, November 21. Claimant came to the plant on November 21 for the examination but then learned that the employer's records indicated that he was required to report for the examination on November 16 and that she had not done so. In the meanwhile, the position had been filled prior to November 21. Claimant denied that she was required to report on November 16. She told her employer that she was leaving the job because of illness. She admits that reason was false, but gave that as the reason for quitting because she had been recommended on the job with the title insurance company by a friend of the president of the company and, in view of her short period of employment there, did not wish to embarrass him by stating the true reason for quitting. Claimant was subsequently employed in Long Island from January 11, 1954 to February 12. She contended that she would not have left the job with the title insurance company had she not been accepted for work by the aviation company.

Referee's Opinion and Decision: The Appeal Board has ruled in numerous cases that a claimant who leaves employment without any definite job to go to quits without good cause within the meaning of the Unemployment Insurance Law. In this case, the record indicates that claimant quit with the understanding that she had a job to go to. She had been tested by the prospective employer and found acceptable and all that remained was to comply with the company policy which required her to be examined by a physician. Because of the confusion in the date of examination, claimant reported late for that examination and when she did so learned that the job had already been filled. The initial determination is overruled. (February 24, 1954)

Appealed By: Industrial Commissioner.

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee's findings of facts are fully supported by the evidence in this case, and that no errors of fact appear to have been made, the Board adopts the findings of fact made by the referee as the findings of fact of this Board, except that we find that claimant had no definite prospect of other employment at the time of her voluntary leaving of employment. Although claimant had filed an application for employment with a prospective employer, she had been required to report on November 16, 1953 for a physical examination, which was a condition of her hiring. Claimant failed to comply with such requirement and, consequently, she was not hired by the prospective employer. Inasmuch as it appears that claimant had no definite prospect of other employment at the time of her voluntary leaving of employment, such leaving was without good cause under the Unemployment Insurance Law. As the referee stated in his opinion, the Appeal Board has ruled in numerous cases that a claimant who leaves employment without any definite job to go to quits without good cause within the meaning of the Law. The referee overruled the initial determination of the local office based on the premise that when claimant left her employment she understood she "had a job to go to." We do not concur with the result reached by the referee. The credible evidence shows that at the time of her voluntary leaving of employment, claimant had merely a hope or expectancy of obtaining other employment, which did not materialize into employment because of her failure to report on November 16, 1953 for a physical examination as required by the prospective employer. She knew that a satisfactory physical examination was a prerequisite to her prospective employment. Claimant was not justified in voluntarily and prematurely leaving her employment based on a mere hope or expectancy of obtaining other employment. We have repeatedly held that this is not the test fixed by the Law. Claimant did not act as a reasonably prudent person should have acted under like circumstances. Under all the circumstances present in this case, we hold that claimant voluntarily left her employment without good cause within the meaning of the Unemployment Insurance Law. The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective November 23, 1953 on the ground that she voluntarily left her employment without good cause is sustained. The decision of the referee is reversed. (April 9, 1954)




A-750-1284
Index 1160-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MAY 10, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
MISCONDUCT
Insubordination

Appeal Board Case Number 43,195-54

MISCONDUCT - REFUSAL TO COMPLY WITH EMPLOYER'S INSTRUCTION

Refusal, without good reason, to comply with a direct order from the employer which adversely affects the employer's interests constitutes misconduct.

Referee's Decision: The alternative initial determination added at the hearing suspending the accumulation of benefit rights by claimant for seven consecutive weeks effective November 21, 1953 on the ground that he lost his employment through misconduct in connection with his employment is overruled. (February 9, 1954)

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant worked for about two years ending November 20, 1953 as a taxicab driver. On November 20, 1953, in responding to a call to pick up a fare, consisting of a mother and two children, claimant told the mother that one of the children would not be permitted to use the seat of the cab because the child's clothing was soiled and would damage the upholstery. When the mother insisted that the child use the seat of the taxicab, claimant refused to accept her as a passenger. Claimant felt that had he permitted the child to sit on the seat, it might subject the employer to a damage suit by a future passenger who might use the same seat. After leaving the address of the passenger claimant explained the situation to the employer through the inter-communication telephone. The employer instructed claimant to return to the address of the passenger and pick up the fare, stating that it was not claimant's prerogative to determine the type of passengers that would be permitted to ride in the taxicab. When claimant refused to comply with the employer's request, he was ordered to return the taxicab and he was discharged forthwith. Claimant filed a claim for benefits effective November 23, 1953 and registered for employment. Based on the foregoing, the local office issued an initial determination disqualifying claimant from receiving benefits for 42 days effective November 23, 1953 on the ground that he voluntarily left his employment without good cause. Claimant contested the determination and requested a hearing. At the hearing an alternative determination was added suspending the accumulation of benefit rights by claimant for seven consecutive weeks effective November 21, 1953 on the ground that he lost his employment through misconduct in connection with his employment. The referee overruled the initial determination and the alternative determination. The Industrial Commissioner appealed to this Board from the referee's decision insofar as it overruled the alternative determination of misconduct added at the hearing.

Appeal Board Opinion: The referee overruled the alternative determination on the premise that claimant's failure to comply with the directions of the employer and to perform the work assigned does not constitute misconduct as contemplated by the provisions of the Law. We do not concur with the referee's decision. Claimant felt that he was justified in refusing to accept the fare because he was acting in furtherance of the employer's best interests. However, after he reported the circumstances to the employer, he had complied with the obligations he believed he had as an employee. Any damage resulting to the taxicab or claim by another passenger thereafter because of the condition of the child would have knowingly been assumed by the employer. Claimant lost his employment because he refused to comply with a direct order from his employer, compliance with which would have resulted in no detriment to claimant. Under the circumstances, claimant's act was adverse to the employer's interests and being without good reason constituted misconduct within the meaning of the Law.

Appeal Board Decision: The alternative determination suspending the accumulation of benefit rights by claimant for seven consecutive weeks effective November 21, 1953 on the ground that he lost his employment through misconduct in connection with his employment, is sustained. The decision of the referee, insofar as appealed from, is reversed. (April 9, 1954)




A-750-1286 (Rev.)
Index 1610.1
1725-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

APRIL 20, 1955

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Union Relations

Court of Appeals

Appellate Division Decision

Matter of Malaspina 309 N.Y. 413, aff'g 285 App. Div. 564

Appeal Board Case Number 42,606-54

"PROVOKED" DISCHARGE - REFUSAL TO JOIN UNION

Claimant's loss of employment because of failure to join a union as required by the collective bargaining agreement in effect in the employer's establishment constitutes a voluntary leaving of employment without good cause.

Referee's Findings of Fact: Hearings were held at which claimant and a representative of the employer, a witness for and representative of the Industrial Commissioner appeared and testified. Claimant refiled a claim effective November 5, 1953. By initial determination he was disqualified for 42 days beginning the date of filing because of voluntary leaving of employment without good cause and declared overpaid $7.50. Claimant, an assembly hand, was employed from April 30, 1953, to June 13, and again from October 7 until November 14, by two employers engaged in the manufacturing of equipment. One was a partnership and the other a corporation. They were under common control and claimant worked during both periods under the supervision of the same foreman, performing the same tasks at the same location. Both employers are designated as "the employer" in a collective bargaining agreement as the party of the first part. According to the agreement, employees must join the union within 60 days after being hired. Claimant quit the job on June 13. When he was rehired, at his request on October 7 he was informed that his prior employment was part of his trial period and that he must join the union. Claimant promised the shop steward that he would join but never paid the shop steward. At the end of the 70 days claimant was separated from his employment because of his failure to join the union. Claimant contended that he meant to join the union but he lacked the required funds. The union initiation was $25 a month and the dues were $3 a month. Arrangements had been made for claimant to pay the initiation fee in installments.

Referee's Opinion and Decision: Claimant was separated from his employment because he failed to join the union within the required time. There was no voluntary leaving of employment under these conditions. (See Matter of Baida, __ App. Div. __, decided November 12, 1953, affirming Appeal Board, 27,157-51). The initial determination is overruled.

Appealed By: Industrial Commissioner.

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee and before the Board, and due deliberation having been had thereon, and having found that the referee's findings of facts are fully supported by the evidence in this case, and that no errors of fact appear to have been made, the Board adopts the findings of facts made by the referee as the findings of fact of this Board, except that we find that claimant was employed until November 4, 1953, not November 14, and that the union initiation fee was $25 instead of $25 a month, as inadvertently stated in the decision of the referee. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case, except as above stated. The decision of the referee is affirmed.

Appellate Division Decision: (Opinion for Reversal)

The Industrial Commissioner brings here for review a determination of the Unemployment Insurance Appeal Board which holds that claimant is entitled to unemployment insurance benefits. The question is whether claimant was separated from his employment by his own choice. He is not entitled to benefits under the statute if he "leaves his employment voluntarily" and "without good cause" (Unemployment Insurance Law [Labor Law, Article 18] §593, subd. 1[c]).

The underlying question is whether a man who fails to keep up his union membership and for this reason alone loses his job in a union shop is deemed as a matter of law to have left his employment voluntarily and without good cause. We think that this situation would show a failure to meet a reasonable condition of the work. Since it would be an act inevitably terminating the employment, it would become also a voluntary withdrawal.

A theoretical argument is at hand that a failure to pay union dues is a matter of concern only between the worker and the union and the consequent pressure of the union on the employer to discharge the employee-member is not the "voluntary separation" by act of the employee, whatever also is may be.

But we cannot wall ourselves off from the realities of the present-day industrial scene to decide unemployment insurance cases as though we dealt in abstractions. We must look at the world around us the way it is. The labor union is a legitimate and quite universally utilized instrument by which labor and management live and work together. When there is an effective union agreement with the employer by which membership in good standing is a necessary ingredient to continued employment, a man who chooses not have union membership necessarily chooses not to have work in that shop.

This is quite as "voluntary" an act as most choices between one course and another. One must foresee the clear sequential effects of one's choice. This choice amounts to an election by the employee not to meet a condition of the work. The refusal to pay a bus fare to get to work on time in the fact of a foreseeable discharge; or to get tools, clothing or equipment where they were required as the employee's part of the agreement; or to secure needed technical preparation to continue the work, where it was open to the employee to do any of these things or not, would be treated as "voluntary" separations if they had the result of ending the employment.

We are not dealing here with a case supposing a condition beyond the reasonable reach of the employee, or a case where, in controversy with a union, he could not continue or keep up his membership. We are dealing, merely, with the case before us where the claimant did not pay the union fees as required by union regulations and failed after a probation period in the work to obtain union membership required by the labor agreement with the employer. This, in our view, is such a voluntary separation from employment that the Industrial Commissioner was right in holding that claimant is not entitled to benefits under the statute.

The agreement effective between he union and the employer was that within sixty days after being hired an employee must join the International Association of Machinists. Claimant, who is an assembly hand, first was hired from April 30, 1953 to June 13, 1953 when he left the employment; and was rehired on October 7, 1953. The employers were dual, but their integration was such that the Board treated them as a single employer and we treat them the same way. Failing to join the union, although arrangements had been made for installment payment of an initiation fee of $25, he was "removed at the request of the union" on November 4, 1953. He was given a "ten-day notice" by the union after the 60-day period of total employment had expired which was in accordance with union practice. The shop steward testified: If he doe not join in the ten days he must go."

Claimant contends on this appeal that there were two separate employment, one in April and the other in October, and that even if it might be held his separation at the insistence of the union was not a voluntary separation, still neither of the two periods separately considered amounted to a long enough probation period to total 60 days and to give a right under the labor agreement to require the termination of employment, and that therefore the demand of the shop steward and the acquiescence of the employers were a mistaken interpretation of the agreement.

But on this issue the referee and the Appeal Bard found factually against the claimant to hold that the two periods are to be taken together as part of the "probationary period" under the union agreement and we would see no good ground to disturb this factual finding, even if claimant had appealed, which he has not done. The argument of claimant that he offered to pay the union his entrance fee and dues and was ready to do so must be treated in the same way.

The Appeal Board relied on Matter Baida (282 App. Div. 975). But Matter of Baida turned upon very special facts. The employee there gave notice that he would leave the employment at a stated date in the future and on receipt of the notice, but before the date had arrived, claimant was discharged. We hold that this discharge, effective as it was before the time of the announced resignation, was not a voluntary separation from employment and the words of the Court's decision were carefully limited. A penalty of disqualification, it was there stated, does not occur "for provoking a discharge by giving a notice of resignation." Here we are dealing with a discharge arising from the acts of the employee which left the employer no other choice than to separate him from employment. And the two situations in their consequences on the right to unemployment insurance benefits we treat as being different.

Administrative determinations in several states are called to our attention on both sides of this question and they appear to run both in support of the determination reviewed and against it. One which the New York Appeal Board decided in 1950 (No. 24,718-50) seems close in its facts to the case at hand. The employee there refused to join the union having a collective bargaining agreement with the employer, and while the Board expressed the view that claimant "may have felt that she had good personal reasons for not wishing to join the union" still her "election not to do so" was a "voluntary leaving of employment."

An earlier decision of the Board (Case No. 11,875-45) is in the same direction and is based on a very similar policy followed by the British Empire in England (BU-418) in which it was said that in refusing to pay union dues the employee "loses his employment by his own choice." There are administrative determinations the other way, but we think the earlier policy of the New York Appeal Board was wise and should be continued. Nothing expressed in Matter of Baida (supra) was intended to indicate a judicial disagreement with this policy.

If wilful failure to pay union dues with certain separation from employment following in an inevitable sequence could always be regarded as involuntary separation with a sure right to unemployment benefits, complex avenues of inroad upon the reserves would open up. We feel that both logic and reality of appraisal lie with the Appellant Commissioner's view of his obligation.

The determination of the Unemployment Insurance Appeal Board should be reversed and the claim for benefits dismissed without costs. (April 1, 1955)

COMMENTS

This Court decision reinstates our previous policy relative to "provoked" discharges and the issuance of voluntary leaving determinations in such instances.




A-750-1287
Index 810-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 9, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
CLAIMS, REGISTRATION, REPORTING AND CERTIFICATION
Requirements

Appeal Board Case Number 43,464-54

REPORTING AS PRESCRIBED BY REGULATIONS AND CERTIFYING TO PAST UNEMPLOYMENT - TWO SEPARATE ACTS

Reporting as prescribed by regulations and certifying to past unemployment are two separate acts. Special hours, for instance during evenings, may be designated solely for the purpose of certification to past unemployment. A claimant's appearance at a local office and his certification to past unemployment at such hours do not constitute compliance with reporting requirements. However, the failure to comply with reporting requirements may be excused under appropriate circumstances.

Referee's Decision: The initial determination of the local office holding claimant ineligible to receive benefits for the period January 27 through January 31, 1954 on the ground that he failed to comply with reporting requirements is overruled (March 1, 1954).

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant, a sewing-machine operator, is a Tuesday reporter. He was employed on Monday, January 25, and Tuesday, January 26, 1954. He visited the local office on the evening of January 26 and certified to his unemployment during the week ending January 24. The local office was open in the evening solely for the purpose of certification to effective days accrued during the previous week. He accrued one effective day in that week. Claimant reported to his employer on Wednesday, January 27, but there was no work for him. Based on the above facts, the local office issued an initial determination holding claimant ineligible to receive benefits during the period January 27 through January 31, 1954 on the ground that he failed to comply with reporting requirements. Claimant protested the determination and requested a hearing. The referee overruled the determination from which the Industrial Commissioner appealed to this Board.

Appeal Board Opinion: The referee, in overruling the initial determination of the local office, concluded that in view of claimant's certification to his unemployment for the week ending January 24 on Tuesday evening, January 26, it was not necessary for him to report again during that week. We cannot agree with this conclusion. Section 596 of the Unemployment Insurance Law authorizes the Commissioner to promulgate regulations as to claim filing, registration and reporting, and provides in part that "such claimant shall . . . give notice of the continuance of his unemployment as often and in such manner as the Commissioner shall prescribe."

Regulation 41 prescribed by the Industrial Commissioner reads in part as follows:

Reporting by benefit claimants. a. Each claimant shall report and certify to his unemployment, at specified days and hours established for him by the unemployment insurance office, during the course of each week following a statutory week in which he suffered more than three days of total unemployment and did not earn more than $30 and at such other times as such office may direct.

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

Reporting and certifying involve two separate acts. When the claimant appeared in the local office on Tuesday evening, January 26, he only certified to his unemployment for the week ending January 24, 1954. He was too late to have his appearance accepted as a reporting. An examination of the record clearly indicates that claimant was unable to comply with the statutory requirements as to reporting. At the time of his visit to the local office on Tuesday evening, January 26, claimant had suffered no unemployment that week, was due to report for work on Wednesday, January 27, and was therefore not able "to give notice of the continuance of his unemployment" as prescribed by Section 596 supra. Under such circumstances we believe that claimant's situation was covered by Regulation 40(b) as follows:

If he is employed on his regular reporting day . . . he shall file the additional claim on his next day of unemployment on which the filing of claims is accepted, and any claim so filed shall be deemed filed as of the first day of his unemployment occurring in such week.

However, under all the facts and circumstances herein, we believe that although claimant failed to comply with reporting requirements, he was under an understandable misapprehension as to when he should next report at the local office, which misapprehension was not due entirely to his own negligence, and his failure to report should be excused.

Appeal Board Decision: The initial determination of the local office holding claimant ineligible to receive benefits for the period January 27 through January 31, 1954, on the ground that he failed to comply with reporting requirements, is overruled. The decision of he referee is sustained. (April 15, 1954)




A-750-1290
Index 1690-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 9, 1954

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

Appeal Board Case Number 43,240-54

VOLUNTARY LEAVING EMPLOYMENT TO LIMIT INCOME TO PROTECT GOVERNMENT PENSION

A claimant who ceases working in order not to suspend a government pension with a specified income limitation is considered as having left employment without god cause, and not on a leave of absence, although the employer had agreed to reinstate claimant if work should be available upon applying for re-employment.

Referee's Findings of Fact: A hearing was held at which claimant and representatives of the employer and of the Industrial Commissioner appeared and testified. Claimant, a sorter-graft operator, filed for benefits effective January 11, 1954. By initial determination she was held eligible for benefits without any disqualifying conditions. By revised initial determination effective January 11, she was disqualified for 42 days for voluntary leaving of employment without good cause. Claimant was employed from October 18, 1950, to October 15, 1953, at $1 an hour for a five-day, 30-hour week. She is a widow of a veteran of World War I and is in receipt of a widow's pension in the amount of $48 per month. The pension has an income limitation of $1400 per year. In the event that the recipient receives more than $1400 in one year, payment of the pension is suspended until the recipient's annual income is less than that amount. In order that her income for 1953, would not exceed the sum of $1400, claimant requested and was granted a leave of absence by her employer from October 15, to January 4, 1954. When she applied to return to work she was told that she had been replaced and that there was no work available for her.

Referee's Opinion and Decision: Upon the credible evidence, claimant obtained a leave of absence and withdrew from the labor market from October 15, 1953 to January 3, 1954. The original initial determination that she was to be re-employed after a leave of absence and was therefore entitled to unemployment insurance benefits was correct. The employer may have had good reasons not to permit her to return to work when her leave of absence expired, but she did not voluntarily leave her employment. The relationship of employer and employee continued until the expiration of her leave. The initial determination is overruled. (February 17, 1954)

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee and before the Board, and due deliberation having been had thereon, and having found that the referee's findings of facts are fully supported b the evidence in this case, and that no errors of fact appear to have been made, the Board adopts the findings of facts made by the referee as the findings of the fact of this Board, except that we find that evidence now before the Board shows that claimant was not granted a leave of absence, but was advised that if work were available when she applied for re-employment, she would be rehired. The Board is of the opinion that the referee made proper findings of fact in this case, except as stated above. We do not agree with the referee's conclusion that claimant obtained a leave of absence. Claimant's termination of employment was of her own volition. She could have remained in the employment had she chosen. For the reasons stated claimant was properly disqualified from receiving benefits. The revised initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective January 11, 1954, on the ground that she voluntarily left her employment without good cause is sustained. The decision of the referee is reversed. (April 23, 1954)




A-750-1294
Index 1605A-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JUNE 9, 1954

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

Appeal Board Case Number 43,891-54

QUESTION OF DISCHARGE OR LEAVING; FAILURE BY EMPLOYER TO ACCEPT WITHDRAWAL OF RESIGNATION

There is a voluntary leaving of employment and not a discharge if an employer does not permit claimant to withdraw a resignation which had already been accepted.

Referee's Findings of Fact: A hearing was held at which claimant, and representatives of the Industrial Commissioner and of the employer appeared and testified. Claimant, a clerk, filed for benefits effective February 8, 1954. By initial determination effective the same date, she was disqualified for 42 days for voluntary leaving of employment without good cause. Claimant was last employed by the same firm for about two and a half years until February 5. Her hours of work were 8:30 a.m. to 5:30 p.m. For sometime prior to February 5, the employer was contemplating discharging claimant because of a personality clash between claimant and her supervisor. On February 2, claimant was granted a $2 pay increase, which was less that the amount which she anticipated when she requested a raise. She complained to her employer about the insufficiency of the raise and stated that she intended to resign at the end of the workday, on Friday, February 5. However, at about 11 a.m. on February 5, claimant informed her employer that she had changed her mind about resigning and desired to continue on the job. The employer thereupon discharged the claimant and gave her three weeks severance pay.

Referee's Opinion and Decision: Claimant's employment was not terminated by a voluntary leaving on her part. On the contrary, her employment terminated because she was discharged by her employer. Consequently, she may not be disqualified on the ground that she left her employment without good cause. (Matter of Baida, 282 App. Div. 975, affirming Appeal Board, 27,157-1). Claimant had made it clear to the employer early in the day on February 5, that she intended to remain in the employment. It was the employer who was unwilling to have her do so, and discharged her. The initial determination is overruled. (April 1, 1954)

Appealed By: Industrial Commissioner.

Appeal Board Opinion and Decision: After a careful review of the record, testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee's findings of fact and conclusions of law are fully supported by the evidence in this case, and that no errors of fact or law appear to have been made, the Board adopts the findings of fact and the conclusions of law made by the referee as the findings of fact and conclusions of law of this Board, except that we find that claimant, on February 2, 1954, gave her employer definite notice that she would leave her employment on February 8, 1954, and the employer, at such time accepted her resignation; that before claimant reconsidered her resignation the employer had hired her replacement; that in accordance with said notice, the services of claimant were terminated on said date, and that claimant voluntarily left said employment for reasons not deemed to be good cause within the purview of the Unemployment Insurance Law. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case, except as above stated. The employer's failure to permit claimant to withdraw her resignation which had already been accepted, cannot be considered a discharge under the circumstances of this case. The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective February 8, 1954 on the ground that she voluntarily left her employment without good cause, is sustained. The decision of the referee is reversed. (May 21, 1954)