A-750-1302
Index No. 1460G-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 20, 1954

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without work

Appeal Board Case Number 42,227-53

TOTAL UNEMPLOYMENT, QUESTION OF; ROTATION OF WORK WITH RECEIPT OF EQUAL SHARE OF EARNINGS WHEN NOT ACTUALLY EMPLOYED

Fur dressers who work as a group under a rotation system, such system having been established for an equal distribution of work in the employer’s shop, are totally unemployed on days when they are not actually working, even though they receive a proportionate share of the total earnings of the entire group on such days.

Referee’s Decision: The respective initial determinations of the local offices holding each of the claimants ineligible to receive benefits effective the respective dates stated in each of the respective initial determinations, on the ground that said claimants were not totally unemployed and, in the alternative, on the ground that they were unavailable for employment is overruled.

Appealed By: Industrial Commissioner

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

***

Claimants are either fur floor workers or fur fleshers (dressers). They are all members of a fur floor workers’ union or a fur dressers’ union, which have contractual relations with the employers in the industry. Substantially all the claimants have worked in their industry for many years. Many of the claimants had never filed for benefits prior to the instant claims.

Claimant, D., filed effective September 14, 1953. An initial determination was issued effective that date that he was ineligible because he was not totally unemployed and, in the alternative, because he was unavailable for employment.

Claimant, F., filed effective October 13, 1952, and refiled effective October 20 and November 24, August 11, 1953 and September 7. Similar initial determinations were issued effective October 13, 1952, and on all refilings. He was ruled overpaid $90.

Claimant, M., filed effective August 10, 1953 and refiled effective August 31, September 7 and September 28. Similar initial determinations were issued with respect to each filing or refiling and he was ruled overpaid $30.

Claimant, B., filed effective August 17, 1953, and refiled effective August 31, September 7 and September 28. Similar initial determinations were issued with respect to each filing and he was ruled overpaid $7.50.

Claimant, T., filed effective September 24, 1952, and refiled effective October 13, August 10, 1953 and September 7. Similar initial determinations were issued with respect to each filing and he was ruled overpaid $67.50.

Claimant, F., filed effective August 12, 1953, and refiled effective August 17, September 7, 14, 21, 28 and October 5. Similar initial determinations were issued with respect to each filing and he was ruled overpaid $60.

Claimant, W., filed effective September 22, 1952, and refiled effective October 13, November 9, August 17, 1953, August 31, and filed a new claim effective September 28. Similar initial determinations were issued with respect to each filing and he was ruled overpaid $135.

Claimant, R., refiled effective September 16, 1953, and October 7. Similar initial determinations were issued with respect to each filing and he was ruled overpaid $22.50.

Claimant, M., Filed effective September 14, 1953, and refiled effective October 14 and October 19. Similar initial determinations were issued with respect to each filing.

Work in the establishments where various claimants were employed is paid for at piece rates which vary with the many different types of skins which are processed. The workers in each shop customarily receive an equal share of the total earnings of the workers measured by the piece rates for the work produced. Different arrangements exist in various shops, but in all the practice prevails for the shop steward to keep a record of the work produced. When there is insufficient work at hand for the full labor force to be used each day, management decides how many men will be required on a given day and the shop steward then selects workers to report so that there will be an equal distribution of work through a rotation system. Usually, under this rotation system, each worker is called upon to perform some work during the course of each work week. He then receives a proportionate share of the total earnings of the entire group of workers for that week. The workers are required to communicate with the shop or their chairman each day. When there is work available they are not called in a fixed group of any given size, since the number of men to be called on any given day will depend upon the amount of work on hand and the judgment of the employers.

For purposes of convenience, workers in the same shop who live in the same general area may frequently be called to work at the same time. On days when there is no work for any of the workers, they may accept other work in their industry provided they have obtained the consent of their regular employer. Such consent is not necessary for work outside the industry. All employers do not experience the same slow periods. There may be occasions when it is slow in one establishment and work is being performed in other shops. When additional help is required, it is customary for an employer to notify the union which will fill his request, giving a priority to workers who have no regular shops and then to workers who have regular shops but who are currently unemployed. During the many years that claimants worked in their industry, they rarely experienced unemployment of sufficient duration to make them eligible for unemployment insurance. Even in periods of unemployment they customarily had some limited work which would result in their receiving earnings in excess of the statutory limit. During the periods when the respective claimants applied for benefits they remained in constant communication with their respective shop chairmen and reported for work when there was some. They disclosed such employment and refiled additional claims at the expiration of such work. The fur industry experienced an unprecedented poor business period in 1953.

Claimants are permanently deferred by the employment office and are not required to report to it for placement purposes. Many of them sought employment outside their industry in addition to seeking work through the usual employment channels in the industry, principally their union.

Based on interviews had with each of the claimants individually, the respective local offices issued initial determinations in each case holding each of the claimants ineligible to receive benefits during the periods therein stated on the ground that they were not totally unemployed and, in the alternative, holding the claimants ineligible to receive benefits during the same periods on the ground that they were unavailable for employment and charging claimants with overpayments in benefits in the respective amounts stated therein. Each of the claimants requested a hearing before the referee. The referee overruled the initial determinations in each case and further ruled that the claimants were not overpaid in benefits. The Industrial Commissioner appealed to this Board.

Appeal Board Opinion and Decision: Inasmuch as the referee has already rendered a well reasoned opinion in this case, we adopt the referee’s opinion as the opinion of this Board.

I reject the contention that the respective claimants were not totally unemployed during periods when they personally performed no services but received a proportionate share of the total earnings of the entire group of workers in their respective shops. In Appeal Board, 39,451-53, this contention was rejected. It was there held that a pocket book fromer, who shares the proceeds of the labor of another pursuant to a mutual arrangement, was totally unemployed within the meaning of the Unemployment Insurance Law. I do not regard the Referee’s decision in Case 71-36-53R, relied on by the Industrial Commissioner’s representative, as controlling. I consider more applicable the decision in appeal Board, 2626-40, wherein grain shovelers were held to be totally unemployed and available and eligible for benefits although an agreement existed which provided for equal distribution and rotation of work and pooling of earnings. I am mindful of the decision in Appeal Board, 14,406-47, involving a fur dresser. In that case the Appeal Board did not pass upon the question of total unemployment, but held that under the facts there established the claimant was unavailable. The credible evidence in the instant case differs substantially from that in the case cited where there were no efforts to secure employment in or out of the fur industry. The evidence here establishes that claimants made efforts to obtain work. In view of the many years during which they had worked in this industry, the almost continuous employment they enjoyed, and their receipt of intermittent employment even during a period when their industry was experiencing an unprecedented poor season, it cannot be said that they were unreasonable in primarily seeking further work in their industry through the principal medium of security such work, to wit, their union. They did not confine their job seeking efforts to their union.

The initial determination of the respective local offices, holding the respective claimants ineligible to receive benefits during the periods stated in such initial determinations on the ground that they were not totally unemployed and, in the alternative, on the ground that they were unavailable for employment, are overruled. Claimants were not overpaid in benefits. The decision of the referee is affirmed. A separate order is to be entered n each case. (June 25, 1954)




A-750-1308 (Rev.)
Index No. 1205E-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 2, 1954
(Revised October 28, 1955)

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Prior Registration

Appellate Division Decision

Matter of Foscarinis, 284 AD 476

Appeal Board Case number 35,617-53

DISQUALIFICATION, QUESTION OF; REFUSAL OF EMPLOYMENT PRIOR TO FILING FOR BENEFITS

A claimant may not be disqualified for a refusal of employment which takes place on a day on and for which he is not seeking benefits even though his subsequent claim for benefits includes the day on which the employment would have commenced.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits, effective October 6, 1952, on the ground that he refused employment without good cause is overruled.

Appealed By: Industrial Commissioner

Appeal Board 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 filed for benefits effective October 6, 1952. A revised initial determination was issued disqualifying him as of October 6 for refusal of employment without good cause. During the week preceding the one in which claimant filed for benefits, he received a communication from a store for which he had worked temporarily as a re-assembler of toys during the 1951 Christmas season to call at the store for possible re-employment. The employer had previously paid claimant $1 an hour. When claimant went to see the employer on October 3, he was again offered $1 an hour for similar work. Because he had earned a higher rate on other jobs, he asked for $1.25 an hour. The employer brought its offer up to $1.15. Claimant lowered his request to $1.20, but there was no agreement and he was not hired. Claimant is classified as an assembler in the field of electrical equipment. He has done only unskilled work sine coming to this country from Greece about three years ago. In Greece, he was a civil service employee for twelve years, having managed a district office, but he has been handicapped by English language difficulties and has necessarily done work of the type mentioned above since his entry into the United States. His last job was with a manufacturer of loose-leaf binders at $1.05 per hour for about five months until September 25, 1952, when he was laid off.

We make the following additional findings of fact: Claimant requested a hearing and the referee overruled the revised initial determination of the local office disqualifying him from receiving benefits, effective October 6, 1952, on the ground that he refused employment without good cause. The Industrial Commissioner appealed from that portion of the referee’s decision adverse to him.

Appeal Board Opinion: Inasmuch as the referee has already issued a well reasoned opinion in this case, we adopt the referee’s opinion as the opinion of this Board.

Although there was no evidence which might be said clearly establish the prevailing rate of pay for the type of work offered to claimant on October 3 (there being evidence that the union which furnishes assemblers of stuffed toys has established a rate of pay ranging from $1.05 to $1.70 an hour), if claimant be regarded as an assembler in the general, unskilled sense, the evidence indicated that $1.15 an hour was not substantially less than the prevailing rate in the locality for that unskilled occupation. The question presented, then, is whether claimant was subject to disqualification for refusing the job on October 3 in view of the fact that he was not at that time a registrant for benefits and did not file his original claim until the following week. Section 593.2 of the Unemployment Insurance Law reads pertinently as follows:

"Refusal of employment. No benefits shall be payable to any claimant who without good cause refuses to accept an offer of employment for which he is reasonably fitted by training and experience, including employments not subject to this article…"

The foregoing provision has been in the Law since the inception of benefit payments fifteen years ago. Under that provision, it has been held uniformly that a person may not be disqualified for having refused employment at a time which preceded his entry into the unemployment insurance system. The Appeal Board has specifically ruled in numerous cases going back to 1941, at least, that there may be no disqualification under such circumstances, and the Industrial Commissioner has never sought a reversal of any of those decisions in the courts (Appeal Board, 5743-41; 5944-41; 10,100-43; 29,901-51). The Commissioner’s representative has not pointed to any changes in the Law effected by the so-called Hughes-Brees amendments in 1951, or thereafter, which requires that a contrary conclusion now be reached, and I can perceive no sound basis for overturning the firmly imbedded principle that there can be no disqualification for a refusal of employment which occurred before the person involved became a claimant for unemployment insurance.

The ruling in this case is applicable solely to a possible disqualification arising under Section 593.2 of the Law. The Law in Section 592, specifically provides that in cases of suspension for industrial controversy or misconduct, the suspension periods shall commence on the day after a claimant has lost his employment. In the case of a disqualification for voluntary leaving of employment under Section 593.1, the Law specifically provides that the 42-day disqualification period shall commence following a claimant’s registration for benefits subsequent to such voluntary leaving. Similarly, under Section 594, a forfeiture for wilful misrepresentation in order to obtain benefits may be applied as of the date when a claimant filed for benefits even though such filing is subsequent in point of time to the misrepresentation itself. (Matter of King, 278 App. Div. 1036 reversing Appeal Board, 24,663-50). However, with respect to disqualification for refusal of employment (section 593.2), the Law provides that no benefits shall be payable to any claimant who, without good cause, refuses to accept an offer of employment for which he is reasonably fitted by training and experience. In Section 516 of the Law, the term "claimant" is defined as any person seeking benefits for unemployment. At the time the claimant refused employment he was not a claimant within the meaning of the Law. Consequently, he should not be disqualified from receiving benefits for refusal of employment without good cause, since the verb "refuses" as found in Section 593.2 is in the present tense, and may not be read as meaning past tense, so as it give it ex post facto effect. Under such circumstances, no disqualification may lie, since the statute is specific in this regard, as it is in the cases of suspension, disqualification or forfeiture set forth in other sections of the Law.

Appeal Board Decision: The revised initial determination of the local office, disqualifying claimant from receiving benefits, effective October 6, 1952, on the ground that he refused employment without good cause, is overruled. The decision of the referee is affirmed. (March 20, 1953)

Appealed By: Industrial Commissioner

Appellate Division Decision: Succinctly put, the question presented here is whether a refusal of an offer of employment by a person not then claiming benefits, may be the basis for disqualification under Section 593 subd. 2, of the Unemployment Insurance Law, when he thereafter applies for benefits. Claimant had been temporarily employed for a short period of time before Christmas in 1951 as a toy re-assembler. Thereafter he worked for about five months for another employer and was laid off on September 25, 1952. On October 3, 1952, his previous employer in the toy business offered him the same pre-Christmas temporary job as a toy re-assembler, and claimant refused the offer. The offer has been considered by the Appeal Board as an offer of "suitable" employment within the meaning of the statute, and will be so regarded here. At the time of his refusal of October 3, 1952, claimant had not contacted an Unemployment Insurance office or filed any claim for benefits. On October 6, 1952, claimant filed an application for unemployment insurance benefits, and the initial determination of the Industrial Commissioner disqualified him because of the refusal of October 3, 1952. After a hearing a referee and the Appeal Board reversed the initial determination on the ground that the statute does not authorize disqualification by reason of a "refusal" prior to an application for benefits. From this decision the Commissioner appeals to this court. Section 593, subd.2, of the Unemployment Insurance Law (Labor L., Art. 18), provides, in part: "Refusal of employment. No benefits shall be payable to any claimant who without good cause refuses to accept an offer of employment for which he is reasonably fitted by training and experience, including employments not subject to this article.***" It is elementary that in construing a statute the first guide to legislative intent is the language of the statute itself. If the language is clear and unambiguous, resort may not be had to other rules of statutory construction to imply some different meaning. (Meltzer v. Koenigsberg, 302 N.Y. 523, 525; Matter of Berson (Corsi), 283 app. Div.190, 193; Matter of Emil Hubsch Post, V.F.W. (Corsi), 278 App. Div. 460, 463.) The statute provides that any "claimant" who "refuses" a suitable job is disqualified. Had the Legislature intended the disqualification to apply to any person, claimant or non-claimant, who refuses or has refused a suitable job, it would have been very simple to have said so. The fact that the work "refuses" is in the present tense is significant, and is certainly not indicative of any intention to include the past. The statute limits the disqualification to a "claimant" who "refuses," and it seems clear that the status of claimant and the refusal must be concurrent. Aside from the language of the statute there are other persuasive reasons for upholding the construction adopted by the Appeal Board, Section 593, subd. 2, has been a part of the Unemployment Insurance Law without substantial change since the inception of the law. Since 1941 the Appeal Board has consistently and repeatedly held that a person may not be disqualified for having refused employment at a time which preceded his application for unemployment insurance benefits. In the interval the law has been amended several times, and in 1944 was completely re-codified and re-enacted. (L. 1944, Ch. 705.) Had the Legislature desired to override such administrative construction it could easily have done so, and the fact that it did not indicates legislative approval of the previous interpretation given the statute. (Matter of Gilmore v. Preferred Acc. Ins. Co., 283 N.Y.92,97; Matter of Berson (Corsi), supra.) Moreover, as far as refusal of a job is concerned, the claimant does not subject himself to the disqualifying provisions of the Unemployment Insurance Law until he brings himself within the system by seeking benefits. It is inherent in the statute that, before a disqualification may be imposed, benefit rights must exist from which he might be disqualified. At the time of this "refusal" there was nothing from which the claimant might have been disqualified. While in this case the "refusal" was only three days prior to filing for benefits, the principle involved would apply if three weeks, or three months, or even a longer period of time had elapsed. Who is to decide the stopping point? Must an applicant’s entire work record be investigated to determine, if possible, whether he ever refused suitable employment without good cause? The practical difficulties are apparent. While no court decisions directly in point have been called to our attention, text writers on the subject are in accord with this view. "A worker cannot be disqualified for refusing a job during a period in which he is not an applicant for benefits." Colin, The Law of Unemployment Insurance in New York, 260 (1950). "In general, an offer of employment may be made to a claimant at any time. But before the refusal penalty may be imposed, it must be shown that, at the time of the job offer, the claimant was unemployed, and had registered and was qualified for benefits." Chutroo, Suitable Work under the New York Unemployment Insurance Law, 7 (1947). The decision of the Unemployment Insurance Appeal Board should be affirmed, with costs against the Industrial Commissioner. (July 8, 1954)

COMMENTS

  1. The Court, in affirming the Appeal Board, concluded that "a worker cannot be disqualified for refusing a job during a period in which he is not an applicant for benefits". The conclusion thus reached is in line with principles applied in the past.
  2. The case here reported had been appealed to the Courts since the claimant had on Friday refused a job which was to begin on the following Monday. He filed a claim in the next week so that this Monday represented a day of total unemployment which counted towards his benefit rights. However, the Court has held that the aforementioned principle must prevail, even in such close situations.

  3. The same result would obtain if the refusal occurs in a given week on or after the "effective " date of a claim for benefits, when the actual filing of the claim takes place on a date after the refusal. For instance, a refusal of employment on Monday, the "effective" date of an original or additional claim, would not result in a disqualification when claimant files his claim on Wednesday of the same week. The Court stated that the statute limits the disqualification to a claimant who refuses and that the status of claimant and the refusal must be concurrent.
  4. However, a person is considered to be in a "benefit status" during a week in which a claim is filed if he also filed a claim in the preceding week. For instant, a claimant who is regularly reporting to the insurance office each Wednesday would be considered in a "benefit status" on a Tuesday even though he informs us when reporting that he worked Thursday and Friday of the preceding week and on Monday of the current week.



A-750-1309
Index No. 1305B-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 2, 1954

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

Appeal Board Case Number 44,181-54 et al

TERMINATION OF STRIKE SUSPENSION, QUESTION OF; DISCHARGE OF EMPLOYEE

A strike suspension is not terminated by discharge of the employee by the employer during the industrial controversy.

Referee’s Decision: The initial determinations suspending the accumulation of benefit rights of claimants for a period of seven consecutive weeks effective March 1, 1954 on the ground that they lost their employment because of a strike, lockout or other industrial controversy in the establishment in which they were employed is modified by limiting such suspension to the period March 1 through March 11, 1954.

Appealed By: Cross Appeals; Industrial Commissioner and Claimants

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:

* * *

Each claimant filed for benefits effective March 1, 1954. Initial determinations were issued suspending the benefits of each claimant for seven weeks effective March 1 because of an industrial controversy in the establishment in which she was employed. All of the claimants were production workers in the establishment of a manufacturer of toiletries. Due to material shortages, six of the claimants were laid off on February 24 with instructions to return on March 1. Seven others were similarly laid off on February 26 and instructed to return on March 2. On the morning of March 1, some of the claimants and co-workers who reported to the employer’s establishment left to participate in a meeting which had been called by an official of a union, which was the bargaining agent in contractual relations with the employer, concerning steps to secure reinstatement of the shop steward and several co-workers who had been dismissed by the employer at the close of business on February 26. Other claimants and co-workers did not report for work on March 1 because of their attendance at the meeting which lasted several hours. The employer locked the doors and refused to permit the claimants to enter or re-enter the premises to work. Subsequent individual offers of re-employment were rejected by many of the claimants unless all including those who had been dismissed, were re-employed at the same time, which the employer refused to do. The contract provided that no strikes or interruption or impeding of production would occur during its term and that the employer had the right to discharge any employee or employees who violated this provision. By Arbitrator’s award dated March 11, 1954, subsequently confirmed by the Supreme Court, it was found that a work stoppage or interruption of production occurred on March 1, 1954, in violation of contract then in effect between the parties, and that the employees were not locked out in violation of the contract. The employer refused to recall any of the employees who participated in the work stoppage and asked the Arbitrator to find that they violated paragraph 13th of the collective agreement and, further, asked permission to discharge 35 employees (including all of the claimants herein). The Arbitrator’s award granted the employer’s request to discharge such employees.

We make the following additional findings of fact: On March 1, 1954, proceedings were instituted against the employer by the shop steward before the National Labor Relations Board, charging the employer with unfair labor practices within the meaning of the National Labor Relations Act. The basis of the charge was (1) the discharge by the employer on February 26, 1954 of the shop steward, forelady and floor manager "because of their membership and interest in District 65, D.P.O.W.A." and(2) that on March 1, 1954 the employer prevented approximately 53 employees engaged in production and maintenance operations from reporting to work after they had attended a union meeting of Local 21906, A.F.L., which was the collective bargaining agent in contractual relations with the employer. The two unions mentioned were rival unions as far as the organization of this employer’s employees was concerned. A petition had been filed with the National Labor Relations Board prior to March 1, 1954 by District 65, D.P.O.W.A., setting forth that a substantial number of the employees wished to be represented by it for purposes of collective bargaining and requesting that it be certified as their collective bargaining agent. On March 1, 1954 and on each work day thereafter, claimants and other employees reported in a body at the employer’s establishment in an endeavor to return to their employment, but found the door locked. On each occasion, they were refused admittance by the employer. Although claimants and other employees were discharged by the employer effective March 11, 1954, the date of the arbitrator’s award, they refused to recognize such discharge and the controversy continued unabated thereafter. Claimants protested the initial determinations of the respective local offices suspending their accumulation of benefit rights for a period of seven consecutive weeks effective March 1, 1954 on the ground that they lost their employment because of a strike, lockout or other industrial controversy in the establishment in which they were employed, and requested a hearing before a referee. The referee modified said initial determination by limiting the suspension of accumulation of benefit rights by claimants to the period March 1 through March 11, 1954 and sustained said determinations, as so modified. The Industrial Commissioner and claimants now appeal to the Board from said decision of the referee, as herein above indicated.

Appeal Board Opinion and Decision: The credible evidence amply supports the conclusion reached by the referee that claimants lost their employment because of an industrial controversy in the establishment in which they were employed within the meaning of Section 592.1 of the Unemployment Insurance Law. It is not disputed that there was an interruption of production on March 1, 1954, when claimants and numerous other employees left the establishment in order to attend a union meeting during working hours. In consequence thereof and of the controversy which followed, they were locked out by the employer on that day and on each work day thereafter until at least the date of the hearing before the referee, April 8, 1954. Whether or not such lockout was justified is not relevant here. We are persuaded to conclude, on the basis of the record before us, that a strike, lockout or other industrial controversy existed in the employer’s establishment, commencing March 1, 1954, within the meaning of the Law and that claimants lost their employment in consequence thereof. In the brief submitted on behalf of claimants, it is also argued that the suspension of accumulation of benefit rights by those claimants who were temporarily laid off on February 24 or 26 and who were instructed to return to work on March 1 or 2, was not proper, based on the reasoning that their loss of employment was not occasioned by an industrial controversy. We hold to the contrary. Such claimants lost their employment on March 1 or 2 because of the industrial controversy which then existed in the employer's establishment. In Matter of Sadowski, 257 App. Div. 529, affirming Appeal Board, 229-38, involving a strike which occurred during the period of a claimant's temporary layoff and before her scheduled return to work, the Court held that claimant had lost her employment because of the strike. In our opinion, the decision in that case is determinative of the similar issue raised herein. It is contended on behalf of the Industrial Commissioner that the referee erroneously modified the initial determinations of the local offices by limiting the suspension of accumulation of benefits by claimants to the period March 1 through March 11, 1954, based on their discharge by the employer on the latter date. We believe that such contention is correct. In Appeal Board, 41,265-53 through 41,277-53, involving a similar situation, we stated as follows:

In reaching our conclusion as to the effect which the notice of termination dated September 17, 1953, sent by the employer to each of the claimants had upon the 49-day disqualification previously imposed upon claimants, we are guided by the decision of the Appellate Division, in Matter of Echeverria, 273 App. Div. 1046 reversing Appeal Board, 16,034-47. In that case, claimant was notified by her employer on April 4, 1947 that her employment would terminate on April 11, 1947. On April 7 a strike occurred in her employer’s establishment and claimant refused to cross the picket line although there was work available for her in her employer’s place of business. Claimant filed a claim for benefits on April 14, 1947. In overruling the decision of the appeal Board holding that, as to the claimant, the disqualification period terminated on April 11, 1947, the Appellate Division said:

Claimant was in employment on April 7 on which day the strike was called and she ceased her work and did not return because thereof. The section of the statute cited, supra, requires the suspension of benefit rights "beginning with the day after" employment is lost because of a strike. The fact that claimant’s employment was to have terminated by layoff on April 11 per direction of the employer given on April 4, does not avoid the application of the aforesaid statutory provision. The amelioration afforded by the Appeal Board’s construction is, we think, a matter only for legislative consideration.

What was there stated is controlling on the similar issue raised in the instant case. Furthermore, the record before us discloses that the claimants herein refused to recognize their discharge on March 11, 1954. The controversy continued unabated thereafter since claimants continued their efforts to regain their employment. The lockout by the employer remained in effect during the entire period in issue. The initial determinations of the respective local offices suspending the accumulation of benefit rights by claimants for a period of seven consecutive weeks effective March 1, 1954 on the ground that they lost their employment because of a strike, lockout or other industrial controversy in the establishment in which they were employed, are sustained in all respects, without modification. The decision of the referee is modified accordingly and, as so modified, is affirmed. A separate order is to be entered in each case (August 20,1954)




A-750-1311
Index 1320C-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

OCTOBER 19, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Lack of work or industrial controversy

Appeal Board Case Number 45,331-54

DISCHARGE BECAUSE OF JOB ABOLISHMENT RESULTING IN NEGOTIATIONS AND PICKETING

Employees who are discharged by the employer because of a decision to abolish their positions, do not lose their employment because of an industrial controversy although they endeavored to retain their jobs by negotiation, and continued negotiations and commenced picketing after the discharge.

Referee's Findings of Fact: A combined hearing was held at which both claimants, representatives of their attorneys, of their union, of their employer's attorneys, of their employer, and of the Industrial Commissioner appeared. Testimony was taken. Both claimants are musicians. Claimant Weiss filed for benefits effective March 8, 1954, and refiled effective March 22 after intervening employment. Claimant Torke filed for benefits effective March 15. By amended initial determinations the benefits of both claimants were suspended for 49 days effective February 28 because of loss of employment due to an industrial controversy in the establishment in which they were employed. The facts are undisputed. Claimants were employed for a number of years by a radio and television broadcasting station. The contract between the musicians union of which claimants were members and their employer expired on February 1, 1954. The employment of the 40 staff musicians which included claimants was orally extended to February 15 and thereafter further extended for an indefinite period until either party notified the other of its termination. Claimants thereafter continued to work until February 27 when the employer notified them that their services were no longer required since it had been decided to discontinue the employment of all the 40 staff musicians and henceforth to conduct its operations without the services of any staff musicians. Negotiations between the musicians' union and the employer, which had begun on February 1, were continued. The union placed pickets outside the employer's establishment with signs that the musicians had been locked out. Action was thereafter instituted by the employer in the Supreme Court, New York county, for an injunction pendente lite restricting the picketing and for other relief. A special Term the motion made by the defendants (the union) to dismiss the complaint was granted. On appeal therefrom, the Appellate Division, First Department, by decision dated June 8, 1954, held that there was no labor dispute between the parties and reversed the contrary holding of the Court below and also affirmed the order of the Court below denying an injunction pendente lite. Each of the claimants sought work through the customary channels by which musicians secure employment after their jobs with the broadcasting company were abolished. Although claimant Weiss succeeded in securing employment elsewhere, claimant Torke was unable to do so.

Referee's Opinion and Decision: Claimants lost their employment as a result of their employer's decision to eliminate their jobs. All that occurred subsequent to the loss of their jobs was in an attempt to convince their employer, by negotiation and otherwise, to give them further employment. By no stretch of the imagination can it be said that they lost their employment because of a strike, lockout, or other industrial controversy in the establishment in which they were employed. If there was any industrial controversy it was because of the loss of their employment and not vice versa. The respective initial determinations are 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 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. 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. (September 17, 1954)




A-750-1312
Index No. 1330-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 19, 1954

INTERPRETATION SERVICE – BENEFIT CLAIMS
STRIKE, LOCKOUT OR OTHER
INDUSTRIAL CONTROVERSY
Termination of Suspension Period

Appeal Board Case Number 45,781-54

LOSS OF EMPLOYMENT AT TWO DIFFERENT TIMES ATTRIBUTABLE TO A SINGLE INDUSTRIAL CONTROVERSY

Where employees out on strike return to work pending a jurisdictional election and again walk out after the employer refused to recognize their union, loss of employment in both instances is due to a single industrial controversy and the seven week period of suspension is applied on a cumulative basis, with the days on which claimants worked excluded in calculating the termination of the seven weeks’ period.

Referee’s Findings of Fact: A hearing was held at which two of the claimants and a representative of the Industrial Commissioner appeared. Testimony was taken. Claimants are rug workers who were employed by a carpet-cleaning company. Claimant Smith filed effective June 14, 1954. The other two claimants filed effective June 21. Initial determinations were issued suspending their benefits for seven weeks effective May 28 for loss of employment through industrial controversy. For a substantial period of time prior to April 20, 1954 negotiations were carried on between the employer and representatives of a union which contended that it represented a majority of employees. The employer refused to enter into a contract with the union or to recognize it as the representative of its employees and on April 20 all of the employees stopped work and struck. Picketing was commenced immediately. The employees returned to work on May 17 when the employer agreed that an election be held to determine whether or not the union represented a majority of the workers. Such election was held on May 19 and a majority of the workers chose the union as its representative. However, the employer refused to enter into a contract with the union and refused to recognize it as the representative of all of its workers and on May 27 the employees again ceased work and resumed picketing. The strike was terminated on July 21 when a contract was entered into between the union and the employer and the employees resumed work.

Referee’s Opinion and Decision: The strike commenced on April 20 when the employees refused to work because of the employer’s refusal to recognize their union as their bargaining agent. It was not terminated when the employees returned to work on May 17. It was merely suspended upon the employer’s consent to the holding of an election. The cessation of work on May 27 was not the commencement of a new controversy, but merely a resumption of the existing controversy in view of the employer’s continued refusal to recognize the union following the election. Accordingly, the suspension of claimants’ benefits commenced April 21, the day following the beginning of the strike, and the 7-week suspension period terminated June 8. Since claimants did not file until after the termination of the suspension period, they are eligible for benefits subject to the other provisions of the Unemployment Insurance Law. The initial determinations are modified to be effective April 21 through June 8 and, as modified, are sustained.

Appeal Board Opinion and Decision: The Industrial Commissioner appeals from the decision of the referee dated August 17, 1954, insofar as it modifies the initial determinations of the local office suspending the accumulation of benefit rights of claimant, G.J.S., a rug worker, effective April 20 to May 14, 1954, inclusive, and May 28 to July 15, 1954, inclusive, respectively on the ground that he lost his employment because of an industrial controversy in the establishment in which he was employed. The referee modified the determinations by consolidating them and making the consolidated determination effective April 21 through June 8, 1954. The Industrial Commissioner also appeals from the decision of the referee, insofar as it modifies the initial determinations suspending the accumulation of benefit rights of the respective claimants M.H. and K.A., rug workers, effective May 28 to July 15, 1954 on the ground, likewise, that they lost their employment because of an industrial controversy in the establishment in which they were employed. The referee modified said determinations to be effective April 21 through June 8, 1954. A combined hearing was held before the referee at which claimants G.J.S. and K.A. and a representative of the Industrial Commissioner appeared and were accorded a full opportunity to be heard. Claimant M.H. did not appear although duly notified. A brief was submitted on behalf of the Industrial Commissioner. 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 in the case of claimant G.J.S., two initial determinations were issued on July 1, 1954, suspending the benefit rights of that claimant for the periods of April 20 to May 14, inclusive, and May 28 to July 15, 1954, inclusive. The Board is of the opinion that the referee made proper findings of fact in this case, except as above noted. However, we do not agree with the referee in modifying the initial determinations so as to make the period of suspension from April 21 through June 8. A single industrial controversy was involved, which terminated on July 21. During the continuance of this controversy, claimants returned to work with the employer herein for a time. In view of our holding in Appeal Board, 13,368-45, the seven-week period of suspension, under the facts shown here, is effective April 21, but is to be applied on a cumulative basis, with the days on which claimants worked during said period excluded therefrom. The respective initial determinations of the local office suspending the accumulation of benefit rights by claimants during a period of seven weeks because of an industrial controversy in the establishment in which they were employed, are modified, in each case, to be effective April 21, 1954 and continuing thereafter, cumulatively, for a period of seven weeks, excluding therefrom, and not crediting claimants with, as part of the suspension period, such days on which they resumed work during the continuance of the controversy, and as so modified, are sustained. The decision of the referee is modified accordingly and, as so modified, is affirmed. A separate order is to be entered in each case. (September 24, 1954)

COMMENTS

  1. The facts in this case are practically identical to those appearing in release A-750-793. Since, as a matter of policy, it has been decided to accept the principle, the "note" appearing after the rule in the above release is now obsolete and should be so marked.
  2. The principle herein established should only be applied in similar circumstances where a return to employment is due to a suspension of the strike. In those cases where employees return to work for short periods for essential services under an agreement between the employer and the union, such as maintenance and payroll employees, the seven-week suspension period is not affected. In cases where a claimant obtains bona fide employment with a different employer, the suspension for loss of employment because of industrial controversy terminates. (See Release A-750-1309)



A-750-1313
Index No. 1525A-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 19, 1954

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISREPRESENTATION
Evidence of; Miscellaneous

Appeal Board Case Number UCV-105-54

WILFUL FALSE STATEMENT; ALTERATION AND PREDATING OF REPORTING DATE

Alteration by predating a placement reporting date which conceals a failure to report as required constitutes a wilful false statement to obtain benefits.

Referee’s Decision: The initial determination of the local office holding that claimant, filing under the Veterans’ Readjustment Assistance Act of 1952, wilfully made a false statement for the purpose of obtaining benefits is overruled.

Appeal 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:

***

Effective June 14, 1954, claimant refiled for benefits under the Veterans Readjustment Assistance Act of 1952. By initial determination his benefits were ruled to be forfeited for 20 effective days because of wilful misrepresentations to obtain benefits.

When claimant filed his claim he was assigned the date of June 18 to report to the employment office. Because of his anxiety to obtain employment he changed the date to June 15 and reported to the employment office on that date. No position was available and he was told to return on July 9. He failed to report to the employment office on June 18. He was in New York City and seeking work on June 18, but did not return to the employment office since they had already told him no work was available. The alteration was discovered at the insurance office on June 21.

The Board makes the following additional findings of fact: The referee overruled the initial determination and the Industrial Commissioner appealed to this Board.

Appeal Board Opinion and Decision: Although the Board is of the opinion that the referee made proper findings of fact in this case, we do not agree that claimant’s wilful false statement was not made for the purpose of obtaining benefits. Although not expressly stated by the referee in his opinion, it is clear that he considered claimant’s misrepresentation not subject to the penalty provided by law merely because claimant’s alteration of the date on which he was required to report to the employment service was prompted by his desire to report sooner than required in order to be referred to employment. This is a commendable purpose, which, however, could have been accomplished without resorting to alteration of the reporting date, since there is nothing in the Law or the Regulations which precludes a claimant from appearing at the employment service prior to the date set for reporting thereat, in order to inquire as to possible employment opportunities.

Claimant did not report to the employment service as required on June 18, 1954. Although no initial determination was issued with regard thereto, such failure to report in effect made claimant ineligible to receive benefits pursuant to Industrial Commissioner’s Regulation 41d which provides as follows:

A claimant may not receive credit for any period of unemployment from the date 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, which ever is earlier.

When claimant presented his reporting booklet to the local office on June 21 in its altered condition, he affirmatively represented that he had complied with the requirement that he report to the employment service on June 18 and was in effect claiming benefits for the period from June 18 to June 21. The representation that he had complied with the reporting requirements was false and known by him to be false. We are of the opinion that claimant wilfully made a false statement for the purpose of obtaining benefits within the meaning of the Law under the circumstances appearing herein. The initial determination of the local office, holding that claimant wilfully made a false statement for the purpose of obtaining benefits and imposing a forfeiture of 20 effective days, to be applied in reduction of his future benefit rights, is sustained. The decision of the referee is reversed. (September 17,1 954)




A-750-1316
Index No. 1215B-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 1, 1954

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Attitude and Conduct

Appeal Board Case Number UCV 118-54

TANTAMOUNT TO REFUSAL; STATEMENT TO EMPLOYER RESULTING IN NOT BEING HIRED

If claimant, after being hired, informs the employer that he prefers not to start work that day, as requested, because of another job prospect, and the employer, thereupon, withdraws the offer of employment, claimant’s action constitutes refusal of employment without good cause where it is found that such information was intended by claimant to discourage the employer from hiring him at least until claimant had an opportunity to explore the other job prospect.

Referee’s Findings of Fact: A hearing was held at which claimant and representatives of the Industrial Commissioner appeared and testified. Effective July 5, 1954, claimant, a junior salesman, filed a claim under the Veteran’s Readjustment Assistance Act of 1952, effective July 5, 1954. By initial determination he was disqualified effective July 19, because of refusal of employment without good cause. Claimant’s employment prior to filing was a part-time nature, or vacation jobs. He was honorably discharged from the Marine Corps. On August 3, 1952, and, from that date until June 1954, had been attending college from which he received a BBA degree in June 1954. On July 19 an employer who had interviewed claimant on July 16 informed claimant that he would be hired immediately by the employer as a typewriter salesman-trainee at $225 a month for three months. Claimant was asked if he was willing to start immediately at 10 a.m. He stated he would but that he had another job interview at 3:30 p.m. The employer thereupon withdrew the offer and stated that he did not feel the claimant was sufficiently interested in the job if he had another appointment that afternoon. Claimant’s appointment for the afternoon did not result in employment but he has had three interviews since that date with the employer, including one on the day of the hearing, and there is a good possibility of his being hired by that employer as a trainee-salesman of home products.

Referee’s Opinion and Decision: There was no refusal of employment without good cause. The employer withdrew the offer because claimant indicated that he had another appointment. Claimant actually had another appointment with a possibility of employment. The initial determination is overruled.

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: Although we have adopted the referee’s findings of fact, we do not agree with his conclusion based thereon that inasmuch as the prospective employer withdrew the offer of employment when claimant indicated that he was to be interviewed by another employer the same day regarding possible employment there was no refusal of employment. Concededly, claimant had actually been hired by the prospective employer on the date in question and had been instructed to report for work immediately. If claimant had not then informed the employer that he preferred not to report for work that day, as requested, because he had another job prospect, he could have started work at once. The employer withdrew the offer of employment solely because of such disclosure by claimant. Such information was intended by claimant to discourage the employer from hiring him, at least until claimant had had an opportunity to explore another job prospect. Claimant at such time had no definite prospect of other employment, but merely a possibility thereof which failed to materialize into employment. Claimant was qualified by training and experience for the offered employment and there is no question concerning the rate of pay being substantially less favorable to him than that prevailing for similar work in the locality. Under the circumstances, it must be deemed that claimant refused employment without good cause under the Law. The initial determination of the local office disqualifying claimant from receiving benefits effective July 19, 1954 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 reversed. (November 12, 1954)




A-750-1318
Index No. 1315-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 9, 1954

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

Appeal Board Case Number 44,529-54

QUESTION OF EXTENSION OF INDUSTRIAL CONTROVERSY FROM WAREHOUSE TO RETAIL STORES OF SAME EMPLOYER

Where in a chain store enterprise there is a strike of workers at the employer’s warehouse which is physically separated from the retail stores, the strike suspension provisions do not apply to a retail store employee although his unemployment is caused by that strike (since he was not employed in the struck "establishment"), unless the strike is extended to the retail store by actions such as the placing of a picket line at the store.

Referee’s Findings of Fact: No hearing was held. The cases were decided on the basis of the stipulation by claimants to be bound by the decision in Case 1-45-54R, the record of which is incorporated herein. Claimants, store employees, last worked on March 6. By initial determinations their respective benefits were suspended for seven weeks effective March 8 for loss of employment due to an industrial controversy in the establishment in which they were employed. The employer maintains a warehouse at Colonie, where 75 percent of the retail store merchandise was stored and from which deliveries were made to an area bounded roughly by Malone on the north, Poughkeepsie on the south, Little Falls on the west and Albany on the east. Although the employer packaged its own canned goods at plants throughout the country, it shipped such merchandise to its centrally located warehouse for transhipment to retail stores and, in its business discretion, did not ship directly to the stores. Hard goods were shipped once a week. In addition, there were daily shipments of baked good and dairy and fruit and vegetable products were shipped by independent sources to the retail stores directly several times per week. At Colonie, the employer occupied a U-shaped building. The left wing was occupied by a bakery and the remainder of the premises consisted of its regional offices and a warehouse. Trucks operated by independent business enterprises exclusively for the employer picked up merchandise at the warehouse and at the bakery for delivery to the retail stores in the regional area. The bakery and warehouse were all under one roof. At 3 p.m. on March 1, approximately 200 warehouse employees, members of a local teamsters’ union, struck against the employer and placed picket lines around the Colonie premises. Teamsters employed by the independent business enterprises respected the picket lines. As a result, there could be no pickups and deliveries of baked good or warehouse merchandise. J.B. was employed at a store operated by the employer in East Greenbush and M.B. was employed in a store in Hudson. These stores were physically separated from the premises in which the warehouse employees worked. On March 5 the striking union placed a picket line around the retail store located at East Greenbush and picketing continued at least through the close of business on March 6. Because of the inability of the employer to deliver merchandise to the stores, the premises were shut as of the close of business on March 6. The employees were so notified and were laid off. Were it not for the inability of the employer to obtain merchandise, the stores would have remained in operation. There was no picketing at the Hudson store. The strike of the warehouse employees was settled on March 24. The bakery and store employees returned to work commencing March 25 and March 26, although the retail stores were not to be open for business officially until noon of March 31.

Referee’s Opinion and Decision: It was clear that the premises upon which claimants were employed were physically separated by miles from the struck premises. As a matter of first impression it therefore might appear that although their unemployment was caused by a strike, the strike was not in their establishment. However, a similar question was considered in Appeal Board 30,358-52. The Appeal Board ruled that by placing a picket line at physically separated premises and the separate place of business of the employer became the same establishment, which was struck. It follows that by placing a picket line at the East Greenbush store the industrial controversy was extended to those premises which became a part of the struck establishment of the employer and J.B. lost his employment because of a strike in the establishment in which he was employed. With reference to M.B., since no picket line was placed around the Hudson store, the industrial controversy was not extended to those premises. In Matter of Machcinski, 277 App. Div. 634, affirming Appeal Board, 20,456-49, and Matter of Lasher, 279 App. Div. 505, reversing Appeal Board 22,171-50, the principle was established that in determining establishments "the place where the employee was last employed" was the test to be used. Since M.B. worked in a physically separated facility of the employer connected only with the struck premises by the employer’s method of management, it was a separate establishment from the struck establishment. Since the strike was not in her establishment, her benefits may not be suspended. The initial determination affecting J.B., as modified, is sustained. The initial determination affecting M.B. is overruled.

Appealed By: Industrial Commissioner and employer

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. (August 13, 1954)

COMMENTS

  1. The decision is self-explanatory. It should be noted however, that the Appeal Board decision involves only claimant M.B. (Referee Case No. 10-19-54).
  2. The decisions cited by the referee appear in the Interpretation Service as follows:
CASE Serial No.
Matter of Machcinski A-750-915
Matter of Lasher A-750-1104



A-750-1319
Index No. 1580A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 9, 1954

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION, ETC.
Misrepresentation – penalty period

Appeal Board Case Number 42,938-54

QUESTION OF PENALTY PERIOD WHERE BENEFIT CHECK IS RETURNED UNCASHED

A penalty of 20 forfeit days, instead of 24, is imposed for a wilful misrepresentation where the benefit check received by a claimant is returned without being cashed.

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 finisher, filed for benefits on November 6, effective November 2, 1953. By initial determination, she was ruled ineligible for the week ending November 8 because of lack of total unemployment and overpaid $15, since repaid. Her future benefits were reduced by 24 effective days because of a wilful misrepresentation to obtain benefits. Claimant’s time card for the work week ending November 7, established that she worked a full day on Monday, November 2, and half days on Wednesday, November 4, and Thursday, November 5, a total of 14 hours. Nevertheless, on November 6, when she reported to the insurance office, she certified over her signature that her then last day of work was November 5. On November 17, she certified that in the week ending November 8, she had worked two days with approximate earnings of $29. Claimant’s hourly rate on the basis of a 35-hour week would have brought her weekly earnings for 14 hours to $29.60. Because of paid time off for voting on Election Day, her earnings were increased to $32.90.

Referee’s Opinion and Decision: Claimant was ineligible for the week ending November 8 (Appeal Board, 34,655-52) and accordingly overpaid $15. I am unable to accept her contention that the misrepresentation was innocent. For one thing, it was repeated, being committed on November 6 when she filed her claim, and again on November 17. It is difficult to accept her explanation that she made the same innocent mistake on two occasions separated by 11 days. The initial determinations are sustained.

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 issues involved in this case. However, since claimant did not actually receive the proceeds of the benefit check issued to her for the week in question, she is entitled to a reduction in the forfeiture imposed against her future benefit rights to 20 effective days. Claimant did not receive an overpayment in benefits. The initial determination of the local office is modified to the extent of reducing the forfeiture imposed against claimant’s future rights to 20 effective days. Claimant was not overpaid in benefits. The decision of the referee is modified accordingly and, as so modified, is affirmed. (March 5, 1954)




A-750-1321
Index 1310-13
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

DECEMBER 9, 1954

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

Appeal Board Case Number 45,525-54

INDUSTRIAL CONTROVERSY, QUESTION OF; STOPPAGE OF WORK PURSUANT TO TRADE AGREEMENT

Where the union contract (in the garment industry) provides that no work need be performed until the piecework rate has been fixed, and a work stoppage occurs for this reason, the provisions of Section 592 of the Law, dealing with industrial controversy, do not apply.

Referee's Findings of Fact: A combined hearing was held at which claimants except M., and representatives of the employer, of claimants' union and of the Industrial Commissioner appeared. Testimony was taken. Claimants refiled effective May 10 and May 31, 1954. By initial determinations, amended at the hearing, their benefits were suspended from May 7 through May 13 and again from May 29 through June 4 because of loss of employment due to a strike, lockout or other industrial controversy in the establishment in which they were employed. S. and A. were ruled overpaid $30 each for the week ending May 6. Claimants were employed in various capacities by a manufacturer of ladies' coats and suits. Commencing with the week ending May 6, pressers stopped working because the piecework rate was not fixed to their satisfaction. The other crafts were prevented from working because of the tie-up in the employer's production. All returned to work on May 13 after a tentative settlement. On May 28, a dispute arose between the pressers and the employer; the pressers insisted on presenting their piecework tickets before the garments were fully completed and the employer thought that this should not be done. The pressers again stopped working and caused another stoppage. This dispute was settled on June 4 and production in the employer's establishment resumed immediately. Paragraph twentieth of the union agreement provided that "Workers shall not be required to work on garments before the piece rates have been settled with respect thereto."

Referee's Opinion and Decision: There was no strike, lockout or other industrial controversy under the Unemployment Insurance Law, referring to the first stoppage. (Matter of Cohen, 283 App. Div. 143, affirming appeal Board, 31,708-52). A different situation, however, exists with respect to the second. There was a dispute with respect to the method and time of payment of wages, and no contract provision privileged the employees not work until a dispute of this kind was settled. The other crafts stopped working only because of the refusal of the pressers to continue working. Under Section 592.1 of the Law, it is immaterial that the other crafts were not otherwise involved in the controversy. Their benefits were correctly suspended commencing May 29. The amended initial determinations effective May 7 are overruled and those effective May 29 are sustained. S. and A. were overpaid. The other claimants were not.

Appealed By: Industrial Commissioner.

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. Inasmuch as the question of the second work stoppage is not before us, we have not considered the difference, if any, as to the legal consequences between the two stoppages under Matter of Cohen, 283 App. Div. 143, affirming appeal Board 31,708-52. We believe the language of the Court's opinion in that case requires the decision reached by us as to the sole issue presented here. The decision of the referee is affirmed. (October 8, 1954)




A-750-1323
Index 1290B-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

DECEMBER 23, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL
Wages-prevailing

Appeal Board Case Number 44,732-54

DETERMINING PREVAILING WAGES OF PIECEWORK JOB OFFER

The proper method of determining whether an offered piecework rate meets the statutory requirements as to compensation in a particular job is to compare that rate with piecework rates being paid for similar work in the locality; a comparison with claimant's previous earnings is not a proper test.

Referee's Findings of Fact: A hearing was held at which claimants and representatives of the Industrial Commissioner appeared and testified. Claimants are husband and wife, sewing-machine operators on dresses, and refiled claims for benefits effective February 8, 1954. Initial determinations were issued to each disqualifying them for refusal of employment, effective February 23. Claimants have been in this country for five years. They had always worked as a team. The husband transacts all business for himself and his wife. Originally they accepted employment on an $8 line of dresses. As they progressed in their skill, they advanced to a $10 line in which their earnings were better and, finally, they progressed to a $16 line with still higher earnings. They each earned approximately $80 a week. Claimants work on a piecework basis in union shops, as they are union members. The most usual piece rate paid to them is $1.30 to $1.70 for a complete garment. Between them they make a complete garment. On March 23, claimants refused employment on $8 garments because they were told that the piece rate was 75 cents per garment. Because of the greater care with which they are required to work on higher priced garments, they contend that they could not earn more than 70 cents per hour whereas ordinarily they earn about $2 per hour. The jobs were in a union shop and claimants would have worked as a team. On March 2, claimants accepted employment on $10 garments, through the employment office, worked on those garments for three weeks and earned from $45 to $55 weekly. They offer this as proof that they were over skilled for employment on cheaper garments. Seeing that their earnings were less than they were accustomed to make, they asked the employment office to refer them to other employment, which was done immediately and they have been employed as of approximately March 23 on $16 garments. Their earnings are $85 to $95 weekly. The employment representative stated that there was no conversion involved, merely a re-accommodation to new work and that, ordinarily, applicants with the experience of these claimants are referred to work on garments in the $8 to $22 range.

Referee's Opinion and Decision: Ordinarily I would hold that these claimants should have tried the work before refusing it, so that they could ascertain whether or not their earnings would be considerably less than those to which they were accustomed and for which they had the skill. But the evidence did establish that claimants were not arbitrary in their refusal of employment on cheaper garments. Their previous experience as well as that from March 2 to approximately March 23, was sufficient indication that their earnings would be considerably depressed if they accepted employment on cheaper garments. There may be claimants who can accommodate themselves and have comparable earnings when employed on higher priced as well as lower priced garments but, apparently, these claimants had acquired a certain kind of skill which prevented them from earning what they were accustomed to when employed on cheaper garments. Considering all the circumstances, I hold that claimants refused employment with good cause in that they would have had substantially less earnings in work for which they were overqualified. The initial determination in each case 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 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 the Board finds additionally that the claimants refused the job offer in question on February 23, 1954 instead of March 23, 1954 as inadvertently stated in the referee's decision; that the usual method of compensation in the dress line is on a piecework basis that the industry is 90 percent unionized and that the piecework rate offered was fixed by agreement between the prospective employer and the union of which claimants were members. In overruling the initial determination of the local office that claimants' refusal of the proffered employment was without good cause, the referee based this decision on the premises that claimants' weekly earnings would be substantially reduced from previous earnings by working on a lower priced garment because of the particular skill and greater care which they acquired in the better priced line and that they were overqualified for the employment offered. It has been repeatedly held by the Board that a comparison of a claimant's previous weekly earnings is not a proper test to determine whether the compensation offered meets the requirements of the statute. The determination of the suitability of a job offer so far as compensation in a particular job is concerned is to compare the piecework rate offered to claimant with piecework rates being paid for similar work in the locality. Claimants were offered employment in their occupational classification. The piecework rate offered was the union rate fixed by agreement with their union for the type of work and compared favorably with that prevailing for similar work in the locality. Claimants were reasonably fitted by training and experience for the employment offered. Accordingly, the job offer met all the requirements of the statute and it follows therefore that claimants' refusal of such offer merely because their earnings would be less than their previous earnings is without good cause. (Matter of Helen Wetzig, 304 N.Y. 916, affirming 279 App. Div. 833, reversing Appeal Board, 27,749-51). The initial determinations of the local office disqualifying claimants from receiving benefits effective February 23, 1954, on the ground that without good cause they refused employment for which they are reasonably fitted by training and experience, are sustained. The decision of the referee is reversed. (August 6, 1954)




A-750-1324
Index 1290B-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

DECEMBER 3, 1954

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Wages - Prevailing

Appeal Board Case Number 47,337-54

PREVAILING WAGES - DEFINITION OF "IN THE LOCALITY"

The statutory requirement relating to prevailing wages applies to conditions in the locality of the proffered employment (Nassau County) rather than to conditions prevailing in the area of previous employment. (Queens County)

Referee's Findings of Fact: A hearing was held at which claimant and representatives of the Industrial Commissioner appeared and testified. Claimant, a typist, filed a claim on June 21, 1954. By initial determination she was disqualified effective August 10 because of refusal of employment without good cause and overpaid $165. Claimant resides in Floral Park. She was employed in Nassau County for two years to June 1954, at $1.25 an hour. The hours of employment were from 6 p.m. to 10 p.m. She has had no employment since then. On August 10, claimant was offered employment as a typist at $1 an hour. The job was either full-time or part-time and the hours were to be arranged. Claimant refused the employment because of the wage, which was prevailing in the locality for similar work.

Referee's Opinion and Decision: Inasmuch as the wage offered to claimant was not substantially less than that prevailing for similar work in the locality, she refused the job without good cause. The initial determination is sustained. Claimant was overpaid.

Appealed 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 of this Board, except we find that claimant was last employed in Queens County rather than Nassau County, as found by the referee. We make the additional finding that the proffered employment was in Nassau County. 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 noted above. The statutory requirement relating to prevailing wages applies to conditions in the locality of the proffered employment rather than to conditions prevailing in the area of previous employment. The decision of the referee is affirmed. (December 3, 1954)




A-750-1325
Index 845-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANUARY 6, 1955

INTERPRETATION SERVICE - BENEFIT CLAIMS
CLAIMS, REG. AND CERT.
PREDATING

Appeal Board Case Number 46,429-54

PREDATING, QUESTION OF; RELIANCE UPON INFORMATION FURNISHED DURING AND FOR A PREVIOUS YEAR

Claimant's reliance upon his interpretation of information furnished by the Division with respect to eligibility in a previous year does not warrant predating of claim when claimant furnishes no adequate reason for failure to seek information respecting eligibility during the current year.

Referee's Findings of Fact: A hearing was held at which claimant appeared and testified. A statement was submitted on behalf of the Industrial Commissioner in lieu of an appearance. Claimant, a salesperson, filed effective August 16, 1954. By initial determination effective August 2 through August 15, she was ruled ineligible because of failure to comply with registration requirements. Claimant was employed in a dress shop for three years to July 31 at $55 per week. She was laid off at that time and advised that she would be recalled in September. She was actually called back to work on September 3. At the time of the layoff, she received $110 vacation pay. She did not report to the insurance office prior to August 16 because, under similar circumstances in the previous year, she was definitely told at the insurance office not to file for benefits during a period for which she received vacation pay.

Referee's Opinion and Decision: Claimant's failure to register prior to August 16 was due to information which she received at the insurance office the previous year. While the information may not have been incorrect at the time it was given, claimant acted reasonably in relying on the information received. Her failure to comply with registration requirements should be excused. Her claim should be predated to August 2. 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 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. The Board makes the following additional findings of fact. Following claimant's layoff on July 31, 1954, she at no time reported at the local office prior to at least August 16. She did report on August 20 at which time her claim was made effective August 16. Claimant made no attempt to seek information regarding her eligibility for benefits during the period for which she was in receipt of vacation pay. She chose to rely upon information which she understood she received in the previous year under similar circumstances. When filing for benefits effective August 16, 1954, claimant requested that her claim be predated to August 2, 1954, which request was denied by the local office. Although we have adopted the findings of fact made by the referee as supplemented herein, we are not in accord with his disposition of this case, overruling the initial determination of the local office holding claimant ineligible to receive benefits for the period August 2, 1954 through August 15, 1954, on the ground that she failed to comply with registration requirements. Concededly, claimant failed to attempt to elicit information regarding her eligibility for benefits during the period in issue. Consequently, it cannot be said that she was misled by information which she received at the local office. Claimant chose to rely upon her interpretation of information furnished her with respect to her eligibility for benefits in a previous year. Claimant has furnished no adequate reason for her failure to week information respecting her eligibility for benefits during the current year. Under such circumstances, the predating of her claim is not warranted in this case. The initial determination of the local office, holding claimant ineligible to receive benefits effective August 2 through August 15, 1954, on the ground that she failed to comply with registration requirements, is sustained. The decision of the referee is reversed. (December 3, 1954)




A-750-1326
Index No. 795.3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

January 6, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Miscellaneous Causes

Appeal Board Case Number 46,539-54

INABILITY TO SUPPLY TOOLS CUSTOMARY IN OCCUPATION

Where in claimant’s occupation workers must supply their own tools to obtain employment, an inability to do so renders the claimant unavailable.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective July 28, 1954 on the ground that, without good cause, he refused employment for which he is reasonably fitted by training and experience or, in the alternative, holding him ineligible to receive benefits effective July 28, 1954, on the ground that he was unavailable for employment is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant was employed for seven months to May 28, 1954 as a marine pipe fitter. He has over 12 years experience in that trade. Claimant filed a claim for benefits effective May 31, 1954 and registered for employment. On July 28, 1954 claimant was referred to employment as a marine pipe fitter with a large shipyard. The pay was $2.07 per hour. Claimant was not hired because he did not possess the tools used in his occupation. He formerly owned such tools but they had been stolen from him several months before on his last job. Claimant was able to continue to work on that job because a fellow employee permitted him to use his tools. A set of tools costs between $70 and $80. A marine pipe fitter is customarily required to have his own tools. Claimant obtained employment for a short time on August 11, as he applied for the job together with another pipe fitter who did have tools which claimant could use on that job. Based on the foregoing, the local office issued an initial determination disqualifying claimant from receiving benefits effective July 28, 1954 on the ground that, without good cause, he refused employment for which he is reasonably fitted by training and experience or, in the alternative, holding him ineligible to receive benefits effective the same date on the ground that he was unavailable for employment. Claimant contested the determinations and requested a hearing before a referee. The referee overruled both determinations and the Industrial Commissioner appeals from such decision.

Appeal Board Opinion and Decision: We agree with the conclusion of the referee that since claimant did not refuse the job offer on July 28, he is not subject to a disqualification for refusal of employment without good cause. However, we do not agree with the referee that claimant was available for employment. While it may be true that claimant did seek employment, a person in claimant’s occupation, without tools, is not able to obtain employment unless a fellow employee is willing to permit him to use his tools. A claimant is considered available only if he is ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience. Not only must the claimant intend and wish to work, but there must be no circumstances which prevent him from accepting employment or working. Considering all the circumstances including the extended period of time that elapsed since claimant failed to replace his tools, the local office properly held claimant ineligible to receive benefits effective July 28, 1954, on the ground that he was unavailable for employment. The initial determination of the local office, disqualifying claimant from receiving benefits for refusal of employment without good cause, is overruled. The alternative determination holding claimant ineligible to receive benefits effective July 28, 1954 on the ground that he was unavailable for employment is sustained as far as it relates to the period to August 15, 1954. The decision of the referee is modified accordingly, and, as so modified, is affirmed. (December 10, 1954)




A-750-1327
Index 1420-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANUARY 6, 1955

INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous Employment

Appeal Board Case Number 45,299-54

TOTAL UNEMPLOYMENT, QUESTION OF - OPERATION OF ROOMING HOUSE

Where the operation of a rooming house is for the purpose of gaining a livelihood rather than being a mere subordinate addition to claimant's household, such activity renders claimant self-employed and, therefore, not totally unemployed.

Referee's Findings of Fact: A hearing was held at which claimant, her witness, and representative of the Industrial Commissioner appeared. Testimony was taken. Claimant, a sandwich girl, filed for benefits effective March 30, 1954. By initial determination effective March 30, she was ruled ineligible because she was not totally unemployed. She was ruled overpaid $121.50. Claimant has been seeking part-time work only. She has been working on a part-time basis during the last two years. She and her husband own a three-story house, and occupy the apartment in the basement. The nine rooms upstairs are rented out to six roomers. The linens and the furniture were provided by claimant. She cleaned the public halls, stairs, and the bathrooms in the house, and also cleaned the rooms for two of the roomers. She estimated that she spent an hour and a half in her cleaning duties. The income from the roomers amounted to $42 a week.

Referee's Opinion and Decision: In Matter of Emery, 281 App. Div. 426, aff'g Appeal Board, 30 879-52, it was held that a claimant who is self-employed cannot be deemed totally unemployed within the meaning of Section 522 of the Unemployment Insurance Law. However, the Appeal Board held in Case 38,266-53 that the principle of the Emery case did not apply to a claimant who rented out four rooms to help pay the cost of maintaining her 14-room house. The problem in the present case is to determine which of these two precedents is applicable. In my opinion the ruling of the Emery case should govern. I recognize that the self-employment involved in Emery was engaged in on substantially a full-time basis, while in the instant case it was only part-time. Nevertheless, the fact remains that it was a substantial business activity rather than a mere appendage to claimant's household. On the contrary, this was primarily a rooming house which claimant conducted for the purpose of gaining a livelihood. She was therefore unable to satisfy the statutory requirement that she be totally unemployed in order to be eligible for benefits. The initial determination is sustained. Claimant was overpaid.

Appealed By: Claimant.

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 facts and conclusions of law of this Board, except we make the additional findings of fact that claimant failed to disclose to the local office pertinent facts which could have affected the initial determination as to her filing of a valid original claim. Under such circumstances, the benefits which she received are recoverable. The Board is of the opinion hat the referee made proper findings of fact and correctly determined the issue involved in this case, except as above supplemented. The decision of the referee is affirmed. Claimant was overpaid $121.50 in benefits, which are recoverable. (August 20, 1954)

COMMENTS

This decision is released to point out that conducting rooming houses may render claimants ineligible as not totally unemployed. The decision here reported must be differentiated on the facts from a previous decision released in the Service where it was found that claimant was eligible for benefits notwithstanding the fact that she rented rooms in her home. That release, A.B. 38,226-53, discussed by the referee herein, was released in the Service under Serial No. A-750-1213.




A-750-1330
Index 1660A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANUARY 6, 1955

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Violation of Contract of Hire

Appeal Board Case Number 47,364-54

VOLUNTARY LEAVING; CHANGE IN CONDITIONS OF EMPLOYMENT

Refusal to accept a transfer to day shift employment when due to reasons of personal convenience, is not good cause for voluntary leaving employment notwithstanding a change in the contract of hire since claimant would not have been justified in refusing such employment in the first instance.

Referee's Decision: The initial determinations of the local office (1) as amended, disqualifying claimant from receiving benefits for 42 consecutive days, effective August 16, 1954, on the ground that she voluntarily left her employment without good cause or (2) in the alternative holding claimant ineligible to receive benefits, effective August 16, 1954, on the ground that she was unavailable for employment, are overruled.

Appealed By: Industrial Commissioner.

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

Claimant, a clerk, filed for benefits effective August 16, 1954. By initial determination effective August 16 she was disqualified for refusal of employment without good case. At the hearing that determination was amended to disqualify claimant effective August 16 for 42 days for voluntary leaving of employment without good cause. By alternative initial determination effective August 16, she was ruled ineligible because of unavailability for employment. She was ruled overpaid $26.

For the past five years claimant has worked evening hours because her husband has been employed on the evening shift. She worked for the same employer for about two years to August 13, when the night shift was discontinued. In July, she was told to report to the personnel office with respect to the assignment to the day shift. She did not do so because she desired to work only at night.

We make the additional findings of fact: The only reason for claimant's not accepting work on the day shift was that her husband worked on a night shift and she wanted to work the same hours. The referee overruled both determinations of the local office from which decision the industrial Commissioner appeals to this Board.

Appeal Board Opinion and Decision: We do not concur with the conclusion of the referee that claimant had good cause to leave her job on the ground that there was a substantial change in the terms of her employment. After the employer discontinued the night shift on which claimant was employed she was offered similar work on the day shift. Claimant's refusal to accept the daytime employment on the ground that she desired to work the same hours as her husband is not good cause within the meaning of the Law since claimant's declination was for reason of personal convenience and were not compelling. Although the conditions of claimant's employment would have been changed, she would not have been justified in refusing such employment in the first instance. It, therefore, follows that claimant must be deemed to have voluntarily left her employment without good cause. In view of the conclusion reached herein, it is unnecessary for us to rule on the alternative initial determination. The amended initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective August 16, 1954 on the ground that she voluntarily left her employment without good cause, is sustained. Claimant was overpaid. The decision of the referee is reversed. (December 17, 1954)

COMMENTS

Situations are frequently presented wherein claimants leave their employment because of a change in conditions of employment, in effect, a change in the contract of hire. In such instances, determinations have not always been uniform since an endeavor is made to evaluate the extent of the change together with the degree of inconvenience resulting.

It appears that an easier method would be to apply Section 593(b) as the Appeal Board has done in the here reported decision. That section of the Law states that ". . . voluntary leaving of employment shall not in itself disqualify a claimant if circumstances have developed in the course of such employment that would have justified the claimant in refusing such employment in the first instance . . . " The Appeal Board concluded that the reverse is also true - "Although the conditions of claimant's employment would have been changed, she would not have been justified in refusing such employment in the first instance."




A-750-1331
Index 1460E-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JANUARY 13, 1955

INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without work

Appeal Board Case Number 44,916-54

QUESTION OF TOTAL UNEMPLOYMENT - GUARANTEED WAGE PLAN

If a claimant, under a plan guaranteeing 2,000 hours of work per annum, receives from the employer payments covering a period in which no actual work is performed, the claimant is considered on a paid leave of absence and not totally unemployed during such period.

Referee's Decision: A hearing was held at which claimant and representatives of the employer and of the Industrial Commissioner appeared and testified. Claimant, a felling machine operator, filed for benefits effective May 3, 1954. By initial determination effective that date, amended at the hearing, she was ruled ineligible because she was not totally unemployed. Since December 1950, claimant has been employed by a sugar refinery. Claimant is a member of Local 1476, Sugar Refinery Workers and International Longshoremen's Association, which entered into an agreement effective October 1, 1953, with the employer affecting all but excluded groups of the employees at its Brooklyn refinery. The employer operates an open shop but does not prevent the union from extending its attempt to unionize the non-union members. The agreement covers both union and nonunion members with respect to the matters at issue here. The pertinent portions of this agreement as it affects the issue are as follows:

Article VI

"(a) Each employee having on October 1, 1953 more than one year of continuous service with the Company and being then on its active payroll (as below defined), who shall not have been provided with the opportunity to work at least 2,000 hours between October 1, 1953 and September 30, 1954, shall receive a sum of money computed by multiplying his regular rate of pay by the difference between 2,000 hours and the number of hours he was given the opportunity to work, subject to the conditions set forth in this Article VI. Each employee who is on the Company's active payroll on October 1, 1953 and who shall attain one year of continuous service with the Company after October 1, 1953, but prior to September 30, 1954, shall receive a proportional guarantee."

"(b) Employees considered on the active payroll on October 1, 1953 are those who have not been laid off, discharged for cause, quit or retired prior to October 1, 1953."

"For the purposes of this Article VI, the number of hours for which an employee shall be given the opportunity to work shall include eight (8) hours for each day on which such employee shall be scheduled or called to work, and, in addition, all hours paid such employee under the provisions of Article IV and VII of this Agreement as to holiday pay and vacations, respectively."

"(c) In computing the sum, if any, due under this Article VI, the figure of 2,000 hours shall be reduced by the number of hours

  1. lost by an employee as a result of

    1. failure to report for or to perform work to which he is assigned as scheduled or called;

    2. suspension for disciplinary purposes for just cause;

    3. sickness or physical disability to work;

    4. leave of absence or

    5. retirement; and

  2. in which it shall not be practicable for the Company to provide such employee with work by reason of

    1. shortage of raw sugar due to causes beyond the Company's control adversely affecting the Company's operations; or

    2. repeal or modification of the Sugar Act of 1948 (as amended by Public Law 140, 82nd Congress, 1st Session, approved September 1, 1951) adversely affecting the Company's operations; or

    3. labor disputes which result in depletion of the Company's raw sugar stock or which prevent the production or delivery or refined sugars; or

    4. major breakdowns or other causes beyond the Company's control, whether or not of like kind."

"(d) the provisions of this Article VI shall not apply to an employee (a)who quits, (b)who is discharged for just cause or (c)who is laid off as a result of job eliminations or reductions in the working force in his seniority department incident to new or changed equipment. However, in the case of an employee to whom the provisions of this Article VI would otherwise apply, the Company will endeavor to avoid laying him off for any of the reasons mentioned in clause above by transferring him to any then vacant job acceptable to him and for which the Company considers him qualified, or if there is then no such vacant job then by transferring him to such job, if any, acceptable to him and for which the Company considers him qualified.

"(f) if the Company shall permanently close down the Refinery the guarantee provided in this Article VI shall be reduced proportionately to the unexpired period of the year."

Claimant was laid off on April 29, 1954 because there was not work, not because of any absence or raw material. There is no provision in the contract nor does the Company exercise any policy which prohibits claimants from seeking work and accepting work elsewhere during such period of layoff. Claimant has been continued on the employer's rolls as an employee. No wages have been paid to her since April 29. Her seniority is protected. She is entitled to recall when and if the employer has work. She is not entitled to vacation pay for any portion of her current unemployment. Her rights to such vacation will not accrue until December 1954. In determining whether claimant will have had 2,000 hours work from October 1, 1953 to October 1, 1954, no overtime is considered. Only the normal work day of eight hours is used in the computation. According to the contract, the pay for the difference between the number of hours actually worked and paid for and the guarantee of 2,000 hours of work will be the average rates paid when employed. Claimant has had no employment beginning April 29 to the date of the hearing. Her availability for work was not questioned. Claimant conceded that the union was her acknowledged bargaining agent and that the agreement referred to is acceptable to her as it affects her rights and obligations to the employer.

Referee's Opinion and Decision: In appeal Board 25,713-50, the Board faced an analogous but not identical situation. In that case the employer also had a work plan whereby it guaranteed qualified employees 140 hours or work in each month, the equivalent of four weeks of 35 hours. According to that plan the employer also was specific in what employees it considered qualified and under what conditions payments would be discontinued. The guaranteed time was calculated once a month and was included in pay for the week in which the last day of the month occurred. The claimants in that case actually received benefits under the plan for certain portions of the period for which they claimed unemployment insurance benefits. In May 1950, they received a difference of 20 hours wages apparently having worked 120 hours. They received similar differential wages for June and July and September 1950. They had no employment apparently in October and November of that year. During the layoff period they were permitted to seek and accept employment elsewhere. Full benefits were paid them under the plan if they worked part-time elsewhere. If they worked full-time elsewhere however, they were paid on a pro-rata basis. It is evident that there is a substantial difference of the plan cited from the plan herein. Claimant herein has received no payment under the 2,000 hour annual work guarantee plan. She will receive no payment until the employer will have ascertained as of October 1, 1954, what her status of employment and unemployment has been. Further, claimant herein may accept full-time employment elsewhere without failing to be a full beneficiary under the plan. The plan becomes inoperative if the Company cannot continue its operations because of a shortage of raw sugar or a repeal of modification of a specific sugar act, or of labor disputes or of major breakdowns, none of which can be reasonably anticipated but which could occur; otherwise, no provision would have been made for their contingency. The plan is subject to revision if the Company should close the refinery permanently. Such closing may not be in sight but it can influence the payment of benefits under the plan. It is these variations that distinguish the plan from that cited in Appeal Board, 25,713-50. In said case in its conclusion the Appeal Board held that

". . . for the purposes of unemployment insurance the claimants cannot be regarded as totally unemployed in any part of a month in which they received guaranteed time under paragraph 2 of the plan. . . It would not be within the spirit of the . . . Law to award to these claimants unemployment insurance benefits to supplement their earnings in the months during which they had some employment with the employer and were paid by the employer for the minimum hours of work contemplated by the parties. . ."

". . . a reasonable construction of the statute . . . permits a holding that each claimant is entitled to be credited with two statutory weeks of total unemployment in any month in which she was unemployed and received from the employer 70 hours lay off pay . . ." (the maximum under the plan)

The plan of the employer herein guarantees 2,000 hours of work per annum and pay for the difference between the number of hours and the number of actual regular hours worked including hours for which vacation and holiday pay was granted. The employer's work week consists of 40 hours. Thus the equivalent of 2,000 hours is 50 weeks work, so that no employee will be paid for at least two weeks of unemployment in the period October 1, 1953 to October 1, 1954. Claimant is therefore in any event entitled to unemployment insurance benefits for at least two weeks of her current unemployment. For these she will not receive compensation under the employer's guaranteed work plan. As for the remaining weeks in the current period of unemployment claimant has received no remuneration from the employer. Her receipt of remuneration under the plan depends upon many future contingencies. Any of the contingencies will affect and diminish claimant's right to benefits under the plan. Since it cannot be determined at this time to what extent claimant will be a beneficiary and whether she will profit under the plan for her present weeks of unemployment, she is entitled to unemployment insurance benefits as being totally unemployed. However, if in the future claimant receives remuneration under the plan for any of the weeks for which unemployment insurance benefits will have been paid to her, she must then be deemed to have been not totally unemployed, with the exclusion of the two weeks period indicated. Any such retroactive determination will have the effect of ruling claimant ineligible for the periods except the two weeks noted.

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. The Board makes the following additional findings of fact: Claimant was recalled to work on June 9, 1954 and was continuously employed through September 26, 1954. Claimant received from her employer compensation in the sum of $3,291.65 for the period from October 1, 1953 through September 30, 1954. The said sum included payment by the employer for 320 hours during which no work was performed, pursuant to the contract between the employer and the union. During the said period claimant actually worked 1,549½ hours, was enjoying paid holidays for 72 working hours, and was on paid vacation for 64 working hours during the two weeks ending April 4,1954. Between October 7, 1953 ad the week ending March 28, 1954, claimant was offered, in addition to work actually performed, the opportunity for additional work by reason of her seniority privilege, amounting to 34½ hours, which claimant was either unwilling or, for personal reasons, unable to accept. Claimant was recalled to work during November 1954 and was still employed on November 30, 1954, the date of the hearing before the Board. Claimant, not having been on the employer's active payroll as of October 1, 1954, is ineligible as a potential beneficiary with regard to guaranteed employment under the new contract between claimant's union and her employer effective that date. The referee concluded that claimant was totally unemployed because as of the date of the hearing before him claimant had not received any payments from her employer covering the period in issue and further because of the possibility that none would be paid to her by reason of the happening of various contingencies provided for in the union contract. The evidence now before the Board clearly establishes none of the contingencies which might possibly operate to defeat claimant's right to the payment of benefits under the contract has occurred and that she has in fact received compensation thereunder from her employer for the period in issue. Claimant was in effect on a paid leave of absence during the period for which unemployment insurance benefits were claimed and she was consequently not totally unemployed within the meaning of the Law. Regulations of the Industrial Commissioner, Section 2(g), provide that a week of employment includes any statutory week during any part of which an employee is on paid vacation or other paid leave of absence even though no actual work is performed. The initial determination of the local office holding claimant ineligible to receive benefits effective May 3, 1954 on the ground that she was not totally unemployed is sustained. The decision of the referee is reversed. (December 10, 1954)

COMMENTS

It should be noted that where a claimant has not as yet received remuneration under a guaranteed wage plan, but such payment may be due at a later date depending upon future contingencies, claimant will be entitled to unemployment insurance benefits as being totally unemployed. However, in the event that claimant subsequently receives remuneration for a period during which benefits were paid, a retroactive determination should be issued holding claimant ineligible for the period covered by such payment.

In such instances, claimants should be advised at the time benefits are paid, and the record so noted, of the possibility of an overpayment in the event remuneration is subsequently received for such period. In those cases where an original clam is involved, the overpayment would be recoverable since it would be contended that Section 597.4 would not apply as, under such circumstances, the rights to any benefits already paid would not have been "accepted by the claimant in good faith."




A-750-1336
Index 1640B-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

FEBRUARY 10, 1955

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Assignment to other work

Appeal Board Case Number 47,444-54

VOLUNTARY LEAVING RATHER THAN ACCEPT TRANSFER TO OTHER EMPLOYMENT AT REDUCED SALARY

Where claimant's job (as section head at $66.25 per week) is abolished because of reorganization, voluntary leaving of employment instead of accepting transfer to her position previously held (stock control clerk at $61.75 per week) is without good cause when claimant is fitted by training ad experience for such employment and the rate of pay is not substantially less favorable than that prevailing for similar work in the locality.

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 filed for benefits effective August 23, 1954. By initial determination effective the same date, she was disqualified for 42 days of voluntary leaving of employment without good cause. By alternative initial determination, she was ruled ineligible effective August 23 because of unavailability for employment. Claimant worked for the employer from 1946 to August 20, 1954. In April 1953 she was made a staff section head at $64.25 a week. She previously worked as a stock control clerk at $59.25. Her terminal salary as a section head was $66.26. Her employment terminated because of reorganization. She was offered employment as a stock control clerk at $59.75 but refused that job because of the reduction in wages and the fact that her period of employment as a section head would not count in her seniority. Claimant, prior to September 13, sought work as a section head in a department store. She made only two or three employer contacts during that period because she believed that there would be no chance of getting such employment unless the employer advertised. Starting with September 13 she applied to several employers each week. She was then willing to work as a section head or a stock control clerk.

Referee's Opinion and Decision: In view of the fact that claimant's salary would have been substantially reduced, she had good cause for refusing to accept the transfer. However, claimant was not available for employment prior to September 13. During that period she made a few employer contacts and was unwilling to work in a job for which she was fitted by training and experience. Subsequent thereto, she met the test of availability under the Unemployment Insurance Law because she made an active and diligent search for employment and was willing to accept any employment for which she was qualified. The initial determination of voluntary leaving of employment is overruled. The alternative determination of unavailability is modified to be effective through September 12, and as modified, is sustained.

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 conclusion of law of this Board, except as otherwise indicated herein and except that we make the following additional findings of fact: Claimant's loss of employment was occasioned by the elimination of the position of staff section head in her department as a result of a re-organization. The employer's action in eliminating this position was not arbitrary but was done in the usual course of its business operations. Claimant was offered employment as stock control clerk at a salary of $61.75 a week. Her principal reason for refusing to accept this position was because she preferred the job of section head or any other non-union position. She would have accepted transfer to a position not involving union membership, even at a reduction in salary. The rate of pay offered claimant was not substantially less favorable to claimant than that prevailing in the locality for similar work. Claimant was fitted by training and experience for the employment offered to her. At the time she left her employment, claimant had no prospect of immediate other employment. The job of section head which claimant desired was not available at the time claimant left her employment. 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 supplemented and as otherwise stated herein. We find that the reasons given by claimant for leaving her employment do not constitute 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 August 23, 1954 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. (January 7, 1955)




A-750-1338
Index 1430A-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

FEBRUARY 10, 1955

INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Public Service Officials

Appeal Board Case Number 47,365-54

TOTAL UNEMPOYMENT, QUESTION OF: VILLAGE TRUSTEE

A village trustee, receiving $100 per annum for performance of duties by attending meetings of the Village Board, is employed only on those occasions when he actually attends meetings since it did not appear that he was performing services from day to day of a continuous nature.

Referee's Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective December 28, 1953 on the ground that he was not totally unemployed and charging him with an overpayment of $360 in benefits is sustained.

Appealed By: Reopened on claimant's application.

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

Claimant, a layer off, fled a claim effective December 28, 1953. By initial determination effective the same date, he was ruled ineligible because of lack of total unemployment. He was ruled overpaid $360. Claimant was employed for eight years to November 1953, by a manufacturer of gloves and was laid off because of lack of work. Previous thereto, he was employed for 17 years as foreman in the dye house of a knitting mill. In March 1953, claimant was elected a trustee of the village of Broadalbin. His election was for a two-year term, April 1, 1953 through March 31, 1955. In February 1954, he was paid $100 for the fiscal year April 1, 1953 through March 31, 1954. There are four trustees, and at the first annual meeting the Mayor of the village appoints each of the trustees as Commissioner of Street, Lighting, Police, and Sidewalks, respectively. Claimant was appointed Lighting Commissioner for the year April 1953 to April 1954. Meetings are held in the evening of the third Tuesday of each month and last approximately one hour. During these meetings, village business is discussed, including various complaints received concerning streets, etc. Attendance at the meetings is not compulsory. The trustees must approve the annual budget as compiled by the Mayor, the Village Clerk, and the Village Treasurer. Two trustees must sign all vouchers for payment of village employees. Claimant is also required to attend emergency meetings, of which there were two during his first year in office. After receiving information through an article in the local newspaper that a Justice of the Peace had been disqualified from receiving unemployment insurance benefits on the basis that he lacked total unemployment, while holding an elective office, claimant, on April 4, 1954 went to the insurance office and informed it that he was a village trustee and was receiving $100 a year. After receiving notice of disqualification, on April 6, claimant resigned his office as trustee, effective April 7. He was allowed to file a valid original claim effective April 8. He was recalled to work by his last employer on April 19.

The Board makes the following additional findings of fact: The referee sustained the initial determination of the local office holding claimant ineligible to receive benefits effective December 28, 1953 on the ground that he was not totally unemployed and that he was overpaid $360 in benefits.

Appeal Board Opinion and Decision: The referee ruled by virtue of his office as a village trustee, claimant may not be considered as totally unemployed during the term of his office and he sustained the initial determination. The Board recently had occasion to pass on a similar situation and we held to the opposite effect. The following language in Appeal Board, 45,327-54, which involved a village trustee who received $150 a year, applies equally to the facts in the instant case:

There is no evidence that claimant actually performed any other official duties than those which could be performed by him at the regular monthly meeting or at the emergency meetings of the Village Board of Trustees. Any business pertaining to the village affairs could be transacted without the claimant as his presence at the meetings was not necessary to constitute a quorum and, in fact, he did not even attend all of the meetings. At no time did the performance of his official duties interfere with claimant's availability for other employment. We are of the opinion that the $150 received annually by claimant was in effect paid to him for the performance of such duties as he performed when he attended the meetings of the Village Board and that only on those occasions was claimant not totally unemployed. The Appeal Board decisions, involving the ward supervisor, the town clerk and the truant officer, relied on by the referee, are distinguishable from the instant case. There was evidence in those cases that the claimants were performing services of a continuous nature, in that they were called to perform their official duties from day to day. Such does not appear to be the situation here, and consequently those decisions are not determinative of the issue in the instant case. Thus, we find that only on those days when claimant attended meetings of the Village Board of Trustees was he was not totally unemployed. Since the record does not disclose the number of meetings attended by claimant during the period for which he was paid benefits, this case is returned to the local office for further inquiry and a new determination in accordance with this decision.

The initial determination of he local office holding claimant ineligible to receive benefits effective December 28, 1953 on the ground that he was not totally unemployed is modified to the extent that claimant was not totally unemployed only on those specific days when he attended meetings of the Village Board. The amount of the overpayment should be recomputed accordingly. This case is returned to the local office in accordance with the foregoing opinion. The decision of the referee is modified accordingly and, as so modified, is affirmed. (January 14, 1955)




A-750-1342
Index 1460C-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MARCH 16, 1955

INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Dismissal Payments

Referee Case Number 510-633-54R

TOTAL UNEMPLOYMENT, QUESTION OF; BEING KEPT ON PAYROLL TO RECEIVE DISMISSAL PAYMENTS

Claimant is totally unemployed following discharge although he is "kept on the payroll" as a bookkeeping device to receive payments in the nature of separation wages.

Referee's Finding of Fact: A hearing was held at which claimant and a representative of the Industrial Commissioner appeared and testified. Claimant, a hand bookkeeper, filed effective November 22, 1954. By initial determination, he was ruled ineligible through December 15 because of lack of total unemployment. Claimant was employed for about four and a half years up to November 19, 1954, at $250 monthly. He received his pay on the first and 15th of each month. On November 19, the assistant secretary of the firm informed claimant and about 14 other hand bookkeepers that because of the installation of a machine bookkeeping system, their services would no longer be required. The employer, in order "to lessen the shock of unemployment, particularly at that time of the year - 'goodwill' gesture, and in keeping generally with our termination policy," thereafter sent claimant his semi-monthly pay checks on December 1 and December 15, less the usual deductions. The employer reported that claimant was kept "on the payroll", but it certified that the last two payments were in the nature of a separation wage, that he was privileged to seek and accept employment elsewhere, and that he was not subject to recall. Its termination policy provided for payments based on length of service prior to the termination. In this case, however, because several employees were involved, "we arranged to let them go on November 19 and pay each of them to December 15 regardless of length of service." Claimant had received his annual vacation in July and no further vacation was due him as of November 19.

Referee's Opinion and decision: I am unable to conclude that claimant lacked total unemployment during any part of his reporting period. The employment relationship between claimant and his employer was terminated on November 19 and the payments thereafter made did not revive it. In my opinion, any allocation of the two paychecks to any period subsequent to November 19 was no more than a bookkeeping device of the employer. It was conceded upon the record that absent (sic) the employer's allocation of the two checks through the payroll periods ending December 15, claimant's status as totally unemployed would not have been affected by the payments. The two checks were given to claimant as a bonus and therefore did not adversely affect claimant's status as totally unemployed. (Matter of Levy, 279 App. Div. 947, aff'd 304 N.Y. 823, aff'g Appeal Board, 21,600-49). The initial determination is overruled. (January 20, 1955)

COMMENTS

The fact that a claimant is "kept on the payroll" of the employer following discharge in order to receive dismissal or separation wages is insufficient, of itself, to warrant a determination that claimant is employed. The question presented in such cases is whether the employer-employee relationship continues during the period that the claimant receives compensation without work. Experience indicates that in the majority of such cases, as here, claimant is in fact discharged, the employer-employee relationship discontinued and claimant is kept on the payroll solely as a bookkeeping device to receive separation or dismissal payments.

However, if it can be shown that claimant is not in fact discharged at the time work ceases, but such discharge is effective when separation wages terminate, there is no alternative but to hold claimant not totally unemployed during the period covered by the dismissal payments. Evidence of the continuation of the employer-employee relationship may be indicated in various ways. For example, claimant may be subject to recall during the period that he receives dismissal payments or he may be precluded from seeking or accepting other employment during such period. Also, an unequivocal statement may be made by the employer that the employer-employee relationship continues through the period covered by the dismissal payments, and claimant's discharge is not to be effective until the dismissal payments cease.

The principle herein should be applied to instances involving dismissal payments or accrued vacation payments. Decisions previously released in the Service involving vacation payments, where "total unemployment" did not exist, include the following:

The period during which a State employee is liquidating accrued vacation leave with pay in connection with separation from State employment is not a period of total unemployment within the meaning of the Law.

NOTE: This principle will under prevailing practices rarely if ever apply to separation from private employment but may apply to claims upon separation from employment with Municipal Corporations or other governmental subdivisions. (Court of appeals decision, Matter of Blitz, A.B. 18,942-49).

Total unemployment does not exist during a paid vacation period followed by a lay-off if the employer-employee relationship continues through the vacation period as evidenced by facts such as these: The employer regards the claimants as continuing in its employ, pays the vacation pay weekly, keeps them on his payroll and continues their group insurance coverage after the vacation period begins. (A.B. 43,808-54)

A claimant who is being retired by the employer with a pension because of age and who, during a given period immediately preceding the date fixed for his retirement, does not physically render any services but liquidates a paid vacation, continues to be employed by the employer until the date of his retirement and is entitled to be credited with the vacation period as weeks of employment for eligibility purposes. (A.B. 38-941-53)




A-750-1343
Index 1605B-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MARCH 16, 1955

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

Appeal Board Case Number 48,186-55

FAILURE TO "SHAPE UP" TO RECEIVE OCCASIONAL RELIEF WORK

A claimant who discontinues reporting to employer on a daily "shape-up" basis by which he had received only occasional work as a relief man may not be disqualified for voluntary leaving employment.

Referee's Decision: The initial determination disqualifying claimant from receiving benefits for 42 consecutive days on the ground that he voluntarily left his employment without good cause is sustained.

Appealed By: Claimant.

Findings of Fact: Claimant worked intermittently from December 1953 to March 10, 1954 as a relief counterman in New York City on the shift from 9 p.m. to 6 a.m. for an employer which operated a chain of cafeterias. He reported at the employer's main office at 6 p.m. each night and worked only if needed. He sometimes waited until 9 p.m. to ascertain whether work was available for him that night at any of its 13 cafeterias in the locality. He was hired to work in a cafeteria for a single night only if a regular counterman had a day off or was absent from work due to other reasons. He was not paid for waiting at the main office for work. Claimant worked about one or two nights a week and earned from $8 to $10 a day. During some periods he had no work for as many as 11 days. His regular occupation was that of an accountant. Claimant reported to the employer's office each night from March 10 to March 15, 1954 but there was no work for him. Shortly thereafter he returned to his family in New Britain, Connecticut, where he filed a claim for benefits against New York as the liable state effective July 5, 1954 and reported to July 20, 1954. He obtained employment on July 21, 1954. The Out-of-State Resident Office issued an initial determination disqualifying claimant from receiving benefits for 42 consecutive days effective July 5, 1954 on the ground that he voluntarily left his employment without good cause. Claimant contested the determination and requested a hearing. The referee sustained the determination and the claimant appealed therefrom to the Board.

Appeal Board Opinion and Decision: The referee sustained the determination on the premise that claimant's reasons for leaving his job were of a personal nature and did not constitute good cause within the meaning of the Unemployment Insurance Law. We are unable to agree with the referee that claimant voluntarily left his employment. Claimant worked on a daily "shape-up" basis and whether he would be given work as a relief counterman on any day was contingent upon the absence of any of the regular countermen at the employer's cafeterias. It cannot be said that claimant had any employment to leave in New York City and at the most he might have continued to receive work occasionally as a relief counterman on a day to day basis. Under these circumstances we hold that claimant did not voluntarily leave employment within the meaning of the Unemployment Insurance Law (Matter of William Marcus, 278 App. Div. 1037, affirming Appeal Board, 25,920-50; see also Appeal Board, 23,678-50. The initial determination of the Out-of-State Resident Office disqualifying claimant from receiving benefits for 42 consecutive days effective July 5, 1954 on the ground that he voluntarily left his employment without good cause is overruled. The decision of the referee is reversed. (February 11, 1955).

COMMENTS

  1. Presumably the Board's conclusion in this case is not only based on the fact that claimant was hired on a daily shape-up basis, but on the additional evidence that "claimant worked about one or two nights a week" and "during some periods he had no work for as many as 11 days."

  2. Regardless of the shape-up method of hiring, when it can be shown that a claimant was regularly employed in the past over a reasonable period of time, and there are not facts to show that he would not continue to be so employed if he continued to shape-up, a disqualification for voluntary leaving of employment would appear to be proper. This principle is referred to in the following decisions relative to industrial controversies.

Longshoremen and other waterfront workers hired on a daily basis by "shaping-up" at the piers, were held not be have lost their employment because of an industrial controversy in the absence of proof that they were working or had any employment relationship with any particular employer when the strike occurred. The question was reserved as to whether in fact the regular pattern of work of longshoremen, checkers, and harbormasters, viewed over a reasonable period of time and in relation to any pertinent specific union contract, constitutes "employment" within the meaning of the Unemployment Insurance Law. (Court of Appeals Decision, Matter of Burger, et al, A.B. 19,311-49). A Longshoreman or other waterfront worker who is unemployed as the result of a strike against stevedoring companies, and whose pattern of employment shows that he regularly works for one or more of the struck companies, has "lost his employment because of a strike in the establishment in which he was employed.



A-750-1346
Index No. 1650C-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 16, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Disciplinary action – reprimand

Appeal Board Case Number 48,005-54

VOLUNARY LEAVING – REFUSAL TO RE-DO WORK TO EMPLOYER’S SATISFACTION

Being told to re-do some work to employer’s satisfaction or leave the job does not constitute good cause for leaving employment where it appears that claimant’s wages would not have been affected.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days, effective September 20, 1954, on the ground that he voluntarily left his employment without good cause is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a working foreman-upholsterer, was thus employed with his last employer for approximately two years to September 16, 1954. Originally claimant was compensated at the rate of $150 per week plus $20 weekly for automobile expense. Subsequently he agreed to work on an hourly basis at $3.25 per hour. On September 16, 1954, claimant’s employer criticized the manner in which claimant was upholstering a sofa. The employer insisted that claimant re-do the sofa in accordance with the employer’s instructions. Claimant indicated a reluctance to comply with such instructions. Whereupon, he was informed that unless he performed the work as directed, he could leave the job. He thereupon voluntarily left his employment. Claimant filed for benefits, effective September 20, 1954, and registered for employment. Based on an interview with the 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 September 20, 1954, on the ground that he voluntarily left his employment without good cause. Claimant requested a hearing, and the referee overruled the initial determination. The Industrial Commissioner appealed to this Board.

Appeal Board Opinion and Decision: In overruling the initial determination, the referee concluded that the actions of the employer were designed to compel the claimant to resign, and held that he was improperly disqualified for voluntarily leaving his employment without good cause. We are not in accord with this view. Claimant testified that the reason he left his employment was due to his refusal to accept the employer’s criticism of his work, and that he was unwilling to reupholster the sofa in a way that would be satisfactory to the employer. There is no evidence that claimant’s wages would have been reduced if he had carried out the employer’s orders. There may be merit to claimant’s contention that to do so would have resulted in a poor job. However, that was the concern of the employer, and claimant’s leaving of his employment under these circumstances was without good cause within the meaning of the Unemployment Insurance Law. (Appeal Board, 34,278-52.) The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days, effective September 20, 1954, on the ground that he voluntarily left his employment without good cause, is sustained. The decision of the referee is reversed. (February 11, 1955)




A-750-1347
Index No. 765.3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

March 16, 1955

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Willingness and efforts to find work

Appeal Board Case No. 46,075-54

AVAILABILITY; SEARCH FOR WORK REQUIREMENTS

The number of employer contacts made by a claimant in his independent job efforts does not constitute the sole basis for determining a claimant’s availability; other relevant factors and circumstances must be considered and the nature and efficacy of the efforts must be evaluated to determine claimant’s attitude towards work.

APPEAL BOARD DECISION

These are appeals by the claimants and by the employer U-F. Inc., pursuant to Section 621.1 of the Unemployment Insurance Law, from the decision of the referee dated August 20, 1954. Claimants H.P., L.A.G., J.S. and R.J.J. appeal from that part of the decision overruling the initial determinations of the local offices holding them eligible to receive benefits effective May 27, 1954 without disqualifying conditions and sustaining the employer’s objections that claimants were ineligible to receive benefits on the ground that they were unavailable for employment and charging them with overpayments in benefits. The other claimants appeal from the decision of the referee insofar as it modifies the initial determinations of the local offices holding them eligible to receive benefits effective May 27, 1954 by ruling that such claimants were unavailable for employment for various periods, that they were overpaid in benefits and sustaining in part the employer’s objections. The employer U-F. Inc. appeals insofar as the referee sustained the initial determinations of the local offices holding claimants H.W. and A.L. eligible to receive benefits effective May 27,1954 as modified by the referee to hold that claimants were unavailable for employment effective May 27, 1954 and available effective June 9, 1954 and July 6, 1954, respectively, and overruled in part the employer’s objections. The referee remitted the matter to the local offices to determine the recoverability of the overpayments.

Hearings were held before the referee at which all parties appeared either in person or by counsel and had full opportunity to be heard. Written statements submitted on behalf of claimants and on behalf of the employer U-F. Inc. were considered by the Board.

Based on the record and testimony in this case, the Board makes the following:

FINDINGS OF FACT: Claimants were employed as retail sales clerks in furniture stores located in Albany and Troy, New York. A strike was called by claimants’ union on April 8,1954. The seven-week industrial controversy suspension took effect and continued through May 26,1954. Claimants filed original claims for benefits effective May 27, 1954. Prior to their applications for benefits, the employers had notified claimants that they had been replaced in their jobs. A group of strikers, including some of the claimants, had visited one of the employers and asked to be reinstated, but their requests were denied. The union has a "strike and defense fund" maintained by union dues. Most of the claimants spent considerable time picketing the employers’ stores for which they received $25 per week from the fund during the period of their unemployment. Such picketing was done on a voluntary basis, no fixed amount of picketing was required and the time spent on the picket line was arranged among the strikers. Two of the claimants received union benefits for weeks during which they did not picket. All claimants were ready and willing to abandon their picketing to accept employment. They reported at the respective local offices as required and signified their willingness to accept employment. They were interviewed concerning any possible restrictions and their efforts to obtain work. As a result of the interviews, they were deemed available for and capable of employment effective May 27, 1954 and benefits were authorized and paid to them by the local offices for various periods until the employers filed objections.

Claimants sought work by various means. Claimant E.O. who had worked 12 years as a furniture salesman, applied for work at furniture stores and other retail stores in Albany and Troy and wrote letters to firms in other cities. Through one such application he obtained work in a furniture store in September 1954.

Claimant C.E. had worked for 31 years for one of the employers as a furniture salesman. He applied for work as a salesman in a furniture store which was just opening for business, a glass company and a large chain mail order house.

Claimant H.P. was a jewelry salesman for seven years. He was also a member of the musicians’ union. He applied for work as a salesman at a jewelry store and at several sporting goods stores in Albany. In addition he notified the musicians’ union that he was available for placement in full-time work. Through a lead furnished by a friend in August 1954, he obtained work in an army and navy store.

Claimant M.D. applied for work to several furniture store in Albany and other cities, to several other retail establishments in other lines. Through a referral by the state employment office, he became employed on August 2, 1954 in a furniture store in Albany.

Claimant L.A.G., who had 20 years of experience as a furniture salesman, sought employment by applying to retail furniture and other stores in Troy, where he resides.

Claimant J.B. applied for work at several Albany furniture stores, a baby furniture store and a home appliance company.

Claimant J.R.A. applied for work by visiting several local furniture stores and other establishments and by addressing written applications to four firms in Canada. As a result he obtained employment on August 2, 1954 with an electrical appliance firm.

Claimant J.S., a jewelry salesman, applied for sales work at a vending company, a hardware store, a chain automobile supply store, a sewing machine company, a household appliance firm and a frosted food concern. In addition he answered a number of newspaper want ads by mail.

Claimant R.J.J. worked for 25 years for one of the employers. He resides in Troy and sought employment in furniture stores in Troy and in Menands, New York. He also contacted several buyers for possible employment.

Claimant A.L. was a drapery saleswoman for one of the employers in Troy. She applied for sales work at a furniture store, a baby furniture store, a millinery shop, an appliance store, a 5 and 10 cent store, a department store and akin craft shop. In addition she applied to an optician for work as a file clerk or receptionist.

Claimant H.W. worked for four and a half years as a drapery saleswoman for one of the employers in Troy. She sought sales work by applying to furniture stores, a drapery shop, upholstery shops, a ladies’ apparel store, a department store, a baby furniture store and a millinery shop. In addition she applied for work as a cashier in a grocery store and watched the newspapers for possible employment.

The local offices issued initial determinations holding claimants eligible to receive benefits effective May 27, 1954 without disqualifying conditions. The employers filed objections to the initial determinations on the grounds that claimants were unavailable for employment, that they were not totally unemployed by virtue of their picketing activities, that certain claimants were not totally unemployed, since they had other work and that claimants C.E. and M.D. had refused offers of employment without good cause. The referee overruled the initial determinations of the local offices as to claimants H.P., L.A.G., J.S. and R.J.J. and sustained the employer’s objections that they were ineligible to receive benefits because they were unavailable for employment. The referee modified the initial determinations of the local offices as to the remaining claimants by ruling that such claimants were unavailable for employment for various periods and sustaining in part the employer’s objections that claimants were ineligible to receive benefits because they were unavailable for employment. As to four of the claimants, he remitted the mater to the local offices to determine claimants’ availability on and after various dates. He further held that claimants were overpaid in benefits and he remitted to the local offices the question of determining the recoverability of such overpayments. Claimants appealed to the Board insofar as the referee either modified or overruled the initial determinations of the local offices and charged them with overpayments in benefits. The employer U-F. Inc. appealed to the Board insofar as the decision sustained the initial determinations of the local offices to the extent of holding claimants H.W. and A.L. eligible to receive benefits effective June 9 and July 6, 1954 respectively.

OPINION: The referee properly overruled the objections interposed by the employer that claimants were not totally unemployed because they were picketing the employers’ premises and receiving remuneration therefor. He overruled also further objections of the employer that certain claimants were ineligible for benefits because they had other employment and that two of the claimants had refused offers of employment. No appeal was taken from this portion of the referee’s decision.

Claimants appeal herein insofar as the referee held them unavailable for employment effective May 27, 1954 and for various periods thereafter and consequently overpaid in benefits. The employer appeals insofar as the decision holds claimants H.W. and A.L. available for employment effective June 8, 1954 and July 6, 1954 respectively. We are concerned, therefore, solely with the question of the propriety of the initial determinations of the local offices holding claimants to be available for employment and eligible for benefits effective May 27, 1954 without disqualifying conditions.

The legislature did not attempt to write into the law a definition of the term "available for work". What we said on the subject in Appeal Board, 29,444-51 will bear repetition here.

Whether one is "available for work to engage in his usual employment or in any other for which he is reasonably fitted by training and experience", within the meaning of the Unemployment Insurance Law (section 522), depends to a large extent upon the facts and circumstances in each case (Appeal Board, 8745-43; affirmed in Matter of Maude May Smith, 267 App. Div. 468).

Although not susceptible of a precise definition, we have long held the phrase "available for work" to mean a 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; 5540-410). When a claimant’s readiness and willingness to accept work is brought into question by his conduct or other facts indicating possible unavailability, the present or absence of efforts to obtain employment, other than merely registering with the employment service as required, constitute overt acts indicative of a claimant’s state of mind, and is competent evidence to be judged in determining the probability of a claimant’s assertions in the light of the established and admitted facts and other relevant factors and circumstances (Appeal Board, 6759-42)

* * *

The fact that some employers are reluctant to hire aged, though physically capable workers, does not in and of itself make them unavailable for employment (Appeal Board, 9975-43). The test, we have held 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; 23,041-40).

The referee in this case ruled that availability of each claimant must be tested by his efforts to find work. He then proceeded to dispose of the issue as to each individual claimant on the sole basis of the number of their contacts for work. No consideration appears to have been given to other relevant factors and circumstances relating to the issue nor was any attempt made to evaluate the nature of efficacy of such work efforts as bearing on the state of mind or attitude toward work of each claimant. We know of no authority for such a rule or for such procedure. We do not believe that any formula can be devised which may be so applied with mathematical precision as a test of availability.

Looking at this group of claimants as a whole, we find certain facts which are common to each and which cannot be overlooked in judging their availability for work. Although the referee ruled that the voluntary picket line formed by the claimants did not prevent them from being totally unemployed, he failed to take into account that by the same token a claimant who seeks through recognized means to obtain better working conditions on his job from his employer, strongly suggests an attachment to the labor market (See appeal Board, 27,617-51). Likewise, the claimants’ attempt to return to their former jobs by requesting re-employment was a further manifestation of their attachment to the labor market and their availability for work.

Further, there is no question in this case but that claimants were willing and ready to accept work without unreasonable restrictions during the period in question. Claimants reported as required to the state employment office; they were interviewed and satisfied the authorities that they were genuinely desirous of work and had maintained their attachment to the labor market. They were exposed to the reservoir of employment opportunities afforded by that office and none of them ever refused to accept a referral to employment.

Claimants sought work. Their inability to find work cannot be used as a basis to establish that they were unavailable for work. We accordingly hold that claimants, having complied with all of the provisions of the law and having met the tests laid down by the statute and the Commissioner’s regulations, were available for employment effective May 27, 1954 and are entitled to retain the benefits received.

DECISION: The initial determinations of the local offices holding claimants eligible to receive benefits effective May 27, 1954 without disqualifying conditions are hereby sustained. The employer’s objections are overruled. Claimants were not overpaid in benefits. The employers are entitled to the return of their statutory deposits of $10 and $25 respectively. The decision of the referee is modified accordingly and, as so modified, is affirmed. (January 28, 1955)




A-750-1350
Index 1730-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MARCH 16, 1955

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

Appeal Board Case Number 47,784-54

INABILITY TO SECURE RE-EMPLOYMENT AFTER TERMINATION OF LEAVE OF ABSENCE

Securing a leave of absence from employment for personal reasons and being unable to secure re-employment with the employer upon return to the labor market does not constitute a voluntary leaving of employment without good cause.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective September 27, 1954 on the ground that she voluntarily left her employment without good cause is overruled.

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant worked for seven years as a weaver in a textile mill. On May 21, 1954 she requested and received a six months' leave of absence to operate a restaurant in a resort area for the summer season. Claimant was promised return to her usual work at the end of her leave if work was available. The business was not successful and claimant closed the restaurant on September 19, 1954. On September 27, 1954 she applied to her employer for her former job and was told that work was slack but that she would be recalled in a short time. Claimant then filed an application for benefits effective September 27, 1954. On October 12, 1954 the employer notified claimant that she was to report to work on October 25, 1954. Claimant has been employed since that date on an alternate week basis. The local office issued an initial determination disqualifying claimant from receiving benefits for 42 days effective September 27, 1954 on the ground tat she voluntarily left her employment without good cause. Claimant protested and requested a hearing. The referee overruled the initial determination and the Industrial Commissioner appealed to the Board.

Appeal Board Opinion and Decision: We agree with the referee's conclusion that claimant was not subject to disqualification for voluntarily leaving her employment without good cause. The record establishes that claimant did not sever the employment relationship, but had been promised re-employment at her usual work after the summer season. It is clear that claimant had no intention to quit her job. The cases cited by the Industrial Commissioner in his brief are not in point as they involve claimants who voluntarily terminated their employment relationships with their employers and who would otherwise have still remained employed on their jobs at the times of their applications for benefits. Appeal Board, 20,402-49 which involved a claimant who had taken a temporary leave from her employment because of illness in the family and could not obtain re-employment upon her return because of the closing of the employer's plant, we said:

In any event when claimant fled for benefits on February 4, 1949, her lack of employment on that day was not due to her leaving, but to the fact that the employer's establishment had ceased operating, a circumstance over which the claimant had no control. Under such circumstances we believe that the claimant did not voluntarily leave her employment.

The initial determination of the local office disqualifying claimant from benefits for 42 days effective September 27, 1954 is hereby overruled. The decision of the referee is affirmed. (February 4, 1955)




A-750-1353
Index 1315-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MAY 14, 1955

INTERPRETATION SERVICE - BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
"In the Establishment", Question of

Appeal Board Case Number 48,001-54

INDUSTRIAL CONTROVERSY IN THE EMPLOYER'S HEADQUARTERS IN ANOTHER STATE AFFECTING NEW YORK EMPLOYEES

An industrial controversy in the employer's headquarters in Alabama, although it affects the employer's entire system, does not constitute an industrial controversy in the New York terminal where the New York employees neither take part in, nor are concerned with the industrial controversy, since the New York terminal is a separate "establishment", such conclusion being reached from the standpoint of employment rather than management.

Referee's Decision: The initial determination of the local office suspending the accumulation of benefit rights by the claimant during a period of seven consecutive weeks, effective September 21, 1954, on the ground that he lost his employment because of a strike, lockout or other industrial controversy in the establishment in which he was employed is sustained.

Appealed By: Claimant.

Findings of Fact: Claimant, a biller, was thus employed with an interstate trucking firm, until September 20, 1954, when he was laid off. The employer's main office and operating headquarters are located in Birmingham, Alabama. The employer is engaged in interstate truck transportation. For some time prior to September 20, 1954 the employer was in negotiation with the labor union representing its over-the-road drivers. The latter were dispatched from the employer's headquarters in Birmingham, and made deliveries to various termini located throughout the United States. The employer maintained a terminal in New York City, where claimant was employed. None of the over-the-road drivers in the employ of the employer was attached to its New York terminal. On September 17, 1954, a work stoppage occurred at the employer's headquarters in Birmingham, Alabama. By September 20, 1954, the stoppage had affected the operations of the employer's entire system. Because no shipments were being received for local delivery, the New York terminal was shut down, except for the receipt of telephone messages, collection of bills due, etc. All employees employed therein including claimant were laid off except a few persons who were retained for the aforesaid purposes. Neither the claimant nor any of the other employees connected with the employer's New York terminal took part in the work stoppage nor were they concerned with the industrial controversy. At all times they were ready and willing to continue work. They were not members of the labor union involved in the controversy with the employer. No pickets were posted at the New York terminal nor was there any other evidence of the existence of an industrial controversy involving the employer's New York office. On October 18, 1954, an agreement was reached with the labor union representing the over-the-road drivers and the New York terminal was reopened for normal business operation on October 22, 1954. The layoff which occurred at the New York office during the pendency of the controversy resulted from instructions issued at the employer's headquarters in Alabama. Claimant was recalled by the employer on October 20, 1954. Claimant filed a claim for benefits effective September 20, 1954, and registered for employment. Based on an interview with the claimant, the local office issued an initial determination suspending the accumulation of benefit rights by the claimant during a period of seven consecutive weeks, effective September 21, 1954, on the ground that he lost his employment because of a strike, lockout or other industrial controversy in the establishment in which he was employed. Claimant requested a hearing and the referee sustained the initial determination. Claimant appealed to this Board.

Appeal Board Opinion and Decision: The referee, in sustaining the initial determination, concluded that claimant lost his employment because of an industrial controversy in the establishment in which he was employed. We are not in accord with this view. The word "establishment" as used in the Law means the place where an employee was last employed. The Legislature never intended that "establishment" was to include all plants of an employer situated in many states throughout the country. The employer's New York terminal was a separate establishment from the standpoint of employment. The problem here involved is not whether the various branches of the employer's business, situated in different states, are to be considered a single establishment from the standpoint of management. In construing Section 592.1 of the Law, as to whether or not the claimant lost his employment as a result of an industrial controversy, the subject is to be approached from the standpoint of employment rather than management (Matter of Machcinski, et al, 277 App. Div. 634, affirming Appeal Board, 20,456-49, etc.). Applying this test to the instant case, we conclude that the claimant did not lose his employment as a result of an industrial controversy in the establishment in which he was employed. Consequently, he is not subject to the suspension imposed. The initial determination of the local office suspending the accumulation of benefit rights by the claimant during a period of seven consecutive weeks, effective September 21, 1954, on the ground that he lost his employment because of a strike, lockout or other industrial controversy in the establishment in which he was employed is overruled. The decision of the referee is reversed. (February 25, 1955)




A-750-1356
Index No. 910-8
1480B-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 3, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
Base year Earnings and Employment
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous

Appeal Board Case umber 47,579-54

EMPLOYMENT, QUESTION OF; UNION OFFICIALS COMPENSATED BY UNION

Union officials, performing during working hours specific duties on behalf of their union for which they are compensated by the union on an hourly basis, and during such time do not receive wages from the employer, are employees of the union and such employment, and the compensation therefrom, are considered in determining their base period employment and earnings.

Referee’s Decision and Appellant: The Industrial Commissioner appeals from the decision of the referee dated October 26, 1954, insofar as it modifies the initial determination of the local office holding claimant eligible to receive benefits at the rate of $29 a week based upon his earnings with the employer, S.G. Co., during the base period from May 4, 1953 to May 2, 1954, by crediting claimant with additional earnings in the sum of $1740.97 with the union employer during the base period, thus increasing his weekly benefit rate which was to be recomputed by the Industrial Commissioner.

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

* * *

Claimant, a power truck operator, filed a claim effective May 3, 1954. By initial determination, he was ruled eligible for benefits at a rate of $29. Claimant contested the rate which was predicated upon claimant’s earnings with S.G. Co. during the base period from May 4, 1953 to May 2, 1954, totaling $2833.11.

Claimant, while employed by S.G. Co., was a member of Local ____ of the I.U. of E., R. and M.W., affiliated with the Congress of the Industrial Organizations. That union, during the period in issue, had entered into a collective bargaining agreement with S.G. Co., which agreement provides in part:

ARTICLE XXII

Payment of Union Representatives.

  1. Grievances may be taken up during working hours and the employees who are official union representatives shall be compensated by the Employer at their regular rates of pay for time properly spent in the taking up of grievances. Such pay shall be limited in the case of stewards to four hours per week per steward. The Shop Committee shall have fifteen members and shall be allowed a maximum of 275 hours per week for Shop Committee activities. The 275 hours per week herein provided for the members of the Shop Committee shall be exclusive of the pay they may otherwise be entitled to, such as steward’s pay, etc. In the event that the number of employees in the bargaining units of Local ___ shall be increased for each increase of one thousand above twelve thousand an additional Shop Committeeman may be added and an additional twenty hours will be allowed for Shop Committee activities. Conversely, if the bargaining units shall be reduced, for each reduction of one thousand below twelve thousand the number of Shop Committeemen will be reduced by one and the number of hours allowed for Shop Committee activities will be reduced by twenty. In no event shall the Shop Committee be reduced below eight members nor the allowed time be reduced below one hundred and thirty-five hours.

  2. The Plant Chairman shall receive up to a maximum of twenty hours per week. The Bidding Representative shall receive up to a maximum of twenty hours per week for the handling of job bidding.
  3. It is specifically understood and agreed between the parties that, except for Area Representatives, the Plant Chairman, the Shop Committee, Executive Board and the President, Vice President, Secretary and Treasurer of the Union, no other Union official shall leave his place of work except on prior request to the supervisor by his Area Representative, his Shop Committeeman, or the President, Vice President, Secretary or Treasurer
  4. No Union representative will engage in Union Activity during his working hours unless he is clocked out on Union Activity time, regardless of the length of time involved.
  5. Meetings of Union Committees not directly involved in industrial relations with the Employer shall not be held during working hours on Company premises nor in any event in such maner as to interfere with production.
  6. No employee will be represented by more than one steward.

The agreement also provides for the grievance procedure to be following in the event of any dispute. (Article XXVI.)

Pursuant to the collective bargaining agreement, claimant was designated to be the union Chief Shop Steward or Area Representative. Claimant and 11 other Area Representatives, all members of this union are supervised by the building chairman, an officer of the union. It was the function of claimant in turn to supervise the activities of 23 Shop Stewards in his portion of the employer’s plant in connection with their industrial relations activities. As provided in the agreement, Stewards could engage in union activities during working hours but were required to "clock out" for "union activity time."

The agreement provided that for the first four hours per week of engagement in industrial relations work or "union activity time," the employer would pay wages to these Stewards. However, time spent by these Stewards in industrial relations work or "union activity time" beyond four hours per week would be paid for by the union.

Claimant was required by the rules promulgated by is union to decide whether the Steward’s time was required for more than four hours per week in connection with union activity or industrial relations work and to grant permission therefore if so required. Claimant had to keep a record of the time above the four hours per week put in by the Stewards in such work and to approve the vouchers thereafter submitted by the Stewards in excess of the four hours of work. The union then would pay predicated upon that certification in the voucher.

In directing the activities of these Stewards in industrial relations work, claimant had to consult with the officers of the union, other Chief Stewards, or Area Representatives, and also was required to maintain a liaison with the night Steward. Claimant was required to make regular weekly reports to the building chairman and to his union.

By agreement between the financial officers of the employer and the union, it was understood that if a worker put in 20 or more hours per week in industrial relations work, the employer would pay the total employer contributions towards the worker’s pension fund, but that if the worker put in less than 20 hours per week in union activity, the union then would pay the contribution for that period of work towards the pension fund.

During the base period, claimant "clocked out" for industrial relations work or "union activity time" during each of 43 weeks and was paid $1740.97 by the union. Social security and withholding income taxes were deducted from those payments, which were made weekly. The union, during this period, was subject to the Unemployment Insurance Law. During the fourth quarter of 1953, it paid unemployment insurance taxes on a payroll of $59,363.42, and during the first quarter of 1954 on a payroll of $40,992.82.

The union does not have a full-time business agent or representative. All of its officers and Area Representatives and Stewards are employees of S.G. Co. The union does employ two full-time office workers who are paid weekly salaries.

Claimant’s additional earnings are fixed as follows:

Local... I.U. of E.,
R. and M.W.
affiliated with the C.I.O.
Jamaica 3, New York
E.R. Number 86-7465
Total Number Weeks
in Base Period
Total Earnings
in Base Period
43
$1740.97
Number of Weeks with earnings
Less than $15
6
Aggregate Earnings in Weeks
of Less than $15
$18.53

We make the following additional findings of fact: Claimant was not willing to accept union work if he was to lose any part of his salary with S.G. Co. Under the terms of the agreement between claimant and the union, the latter agreed to furnish claimant with the money which S.G. Co. was not required to pay him during the time that claimant was engaged in union activities during his regular working hours. The union did not pay claimant for time lost by him in his employment with S.G. Co. by reason of absence or illness. The union paid claimant for the services rendered by him to the union in connection with union activities work performed under the collective bargaining agreement between the union and S.G. Co. to the extent of time lost by him with S.G. Co.

The union listed claimant and other shop stewards and area representatives as their employees in the federal income tax returns and social security reports filed by the union. It also paid unemployment insurance contributions on its payroll which included the monies paid to claimant, other area representatives and shop stewards, as their employees. The two regular office girls employed by the union as well as claimant and other area representatives and shop stewards were paid weekly on the basis of vouchers submitted by them, showing the time devoted by them in performing services for the union.

Article IV of the Constitution and By-Laws of Local ___ of the I.U. of E., R. and M.W., provides that the officers of the local shall be the President, Vice President, Secretary, Treasurer and Trustees. Area representatives such as claimant are not considered officers.

Article X, Subdivision 6, of said Constitution and By-Laws reads as follows:

  1. Subject to the approval of the General Stewards Council, the Executive Board may engage full or part-time services of persons required for the proper functioning of the Local, and shall fix the salaries of the persons so engaged.

  2. Such salaries shall not exceed the maximum day time weekly wage of the workers within the jurisdiction of the Local
  3. The Executive Board shall direct the activities of all paid or unpaid functionaries in the Local.

The referee modified the initial determination of the local office by crediting claimant with additional earnings with the union in the sum of $1740.97 and directed that his benefit rate should be recomputed accordingly. The Industrial Commissioner appeals from the referee’s decision to the Board.

Appeal Board Opinion: Since the referee has rendered a well-reasoned opinion, we adopt such opinion as the opinion of the Board, in part, as follows:

Claimant is entitled to be credited with additional earnings in covered employment as set forth above. His benefit rate should be recomputed accordingly.

The Commissioner’s representative contended that claimant was not an employee of the union, a membership organization, and that the services he rendered, and for which the union paid him was as a member of the union. The Commissioner’s representative cited Matter of Mutual Benevolent Society of 1865, Inc., (formerly known as The Hungarian Society of New York, Inc.), 298 N.Y. 901, affirming appeal Board, 10,085-43, and also Appeal Board, 9940-43.

These cases are distinguishable and not binding upon the facts herein. In Appeal Board 9940-43, the issue was related to the status of officers of a labor organization. The constitution of this organization provided that members were to be compensated for time spent in connection with the administration of the association and that such compensation should be computed at the employee’s regular hourly rate of pay. It also provided that the treasurer was to receive $50 per year, all district committee chairmen and district committee secretaries $10 per year, in addition to compensation for time.

The issue in that case related to the remuneration paid to the officers for work performed during their leisure or during the time that they were excused by the employer. The Appeal Board, in holding that these elected officers were not employees, specifically stated:

* * * Other members of said association rendered substantial services for which they received remuneration based on the regular hourly rate of pay they received from the public utility company to compensate them for deductions made by their employer for the time spent away from their employment. Since the various applications as indicated herein above were limited solely to compensation paid to the officers of the associations, we make no disposition herein regarding the status of the persons other than such officers.

In that case, the Appeal Board referred to an opinion of the Attorney General dated February 24, 1938, which held that officers of a labor union who render services " in addition to employment in their own trades, are not employees of the union." This opinion of the Attorney General was likewise cited by the Appeal Board in 10,085-43. In that case, the findings of fact indicate that the officers under discussion only devoted so much of their time to the fraternal organization as suited their convenience. The Board found that the compensation received by them was not wages but rather in the nature of a reward and that the duties performed by these officers were not pursuant to any trade or calling normally engaged in by them.

The uncontradicted evidence discloses that claimant herein was subject to the direction and control of the union when he worked on matters related to industrial relations or was on "union activity time," that upon his election to and acceptance of that office as Area Representative, a contract of hire resulted between the union and himself with regard to the performance of his duties as Area Representative and for which a salary was paid to him.

Claimant was supervised in such union activity work by an official of the union. Claimant was required, in turn, to supervise Stewards under his supervision and to certify to the union the performance of work by these Stewards. He was also required to regularly consult with and report to officers of the union with respect to his work as Area Representative during "union activity time."

It is to be noted that the Appellate Division in the Matter of Mutual Benevolent Society of 1865, Inc., (formerly known as The Hungarian Society of New York, Inc.), supra, held that the officers in that case were employees under contracts of hire. The Court of Appeals, in reversing that ruling, merely stated that it could not state as a matter of law that the finding by the Appeal Board that the officers were not employees was unsupported by substantial evidence. In this case, substantial evidence does establish the employment of this claimant by the union.

The union had no paid business agent to whom it would customarily pay a stipulated salary. The work of a business agent, including the representation of the union in connection with the hearing of grievances, fostering better industrial relations between the union and the employees of S.G. Co., and supervising the work of shop stewards, was performed by the claimant and other area representatives. Under the Constitution and By-Laws of the union, its Executive Board was authorized and empowered to hire persons such as claimant for part or full time to render services for the union at salaries not to exceed the maximum daytime weekly wage of the worker.

In our opinion claimant was an employee of the union and the money he received every week from the union was remuneration for services rendered by him in the performance of services for the union during regular work hours in enforcing the terms of the collective bargaining agreement. Claimant’s industrial relations activities were at all time supervised and controlled by the officers of the union and he was an employee of such union and entitled to be credited with his earnings with them.

Appeal Board Decision: The initial determination of the local office holding claimant eligible to receive benefits at the rate of $29 a week based on his earnings with the employer, S.G. Co., during the base period from May 4, 1953 to May 2, 1954 is modified to the extent that claimant is entitled to be credited with additional earnings with the union employer in the sum of $1740.97 during the said base period and his benefit rate should be recomputed accordingly.

The decision of the referee is affirmed. (February 18, 1955)




A-750-1357
Index No. 755A.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

May 3, 1955

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Restriction – Work
REFUSAL OF EMPLOYMENT
Qualifications – Skill

Appellate Division Decision

Matter of Austen

Appeal Board Case No. 40,452-52

ACTRESS AND TYPIST-RECEPTIONIST RESTRICTING EMPLOYMENT TO THAT OF ACTRESS

Whether claimant’s "usual employment" be that of a typist-receptionist or an actress, because she had substantial recent employment as a typist-receptionist she is reasonably fitted by training and experience for such employment and her refusal to seek, or accept classification for, such employment brings her within the category to whom the statute mandates "no benefits should be payable".

Appeal Board Findings of Fact: Claimant, an actress, has been connected with the theatre since about 1945, at which time she became a member of a professional group of radio and television artists. In 1952 she became a member of a professional society of screen actors. She is listed as an actress in the professional actor’s directory. Claimant from time to time performed part-time, temporary clerical work under a flexible schedule of hours which permitted her to visit the offices of casting directors, producers and prospective employers whenever the latter would allow claimant an interview. This is one of the customary methods of search for employment in the acting profession. In the last of her clerical employment claimant earned $322.41 from February 29 through July 25, 1952 and $646.51 from January 13 through June 25, 1953. She had no clerical employment thereafter. As a result of previous interviews claimant obtained employment as a television actress on June 26, as a motion picture actress on June 29 and as a television actress on July 3, 1953, for one day in each instance. Claimant filed a claim for benefits effective July 6, 1953 and registered for employment. She was classified by the employment service as an actress, with future reporting date permanently deferred, since the employment service does not undertake to secure employment for actors. Since filing her claim for benefits claimant made a diligent search for employment as an actress and obtained employment in that field on the following days: July 22,1953, television program; August 12, 1953, motion picture, September 15, 1953, television program; September 30, 1953, radio program; October 3 and 4, 1953, motion picture; October 15, 1953,motion picture. Based on an interview with claimant, during the course of which she restricted herself to employment as an actress, the local office, on August 19, issued an initial determination holding claimant ineligible to receive benefits effective July 6, 1953 on the ground that she was unavailable for employment. On August 21 the local office directed claimant to report to the employment service to be reclassified as a typist-receptionist. Claimant at that time restated her restriction to the acting field, requested a hearing before the referee on the issue of availability, and indicated that she would report to the employment service for reclassification in the event the referee’s decision was adverse to her. The referee overruled the initial determination and the Industrial Commissioner has appealed to this Board.

Appeal Board Opinion and Decision: The referee’s conclusion that claimant exerted diligent efforts to obtain employment as an actress is supported by the record. Claimant was justified in continuing her search for such employment after filing her claim in view of the occupational classification of actress assigned by the employment service and success in obtaining theatrical engagements after leaving her clerical employment. Claimant was therefore available for employment from and after the date on which her claim for benefits was filed until August 21, 1953, when claimant refused to report to the employment service as directed. By so doing she rendered herself unavailable for employment within the meaning of the Law. The initial determination of the local office holding claimant ineligible to receive benefits effective July 6, 1953 is hereby modified so as to make the same effective August 21, 1953, rather than as originally issued and, as so modified, is sustained. The decision of the referee is modified accordingly and, as so modified is affirmed. (January 29,1954)

Appealed By: Industrial Commissioner and Claimant

Appellate Division Decision: During her base year (July 7, 1952 through July 5, 1953) claimant was employed for a period of twenty-two weeks as a receptionist, working for an agency which supplied stenographers, typists and receptionists to others on a temporary basis. There was work of that type available to her through the same employer during the period for which she is seeking unemployment insurance benefits. Claimant preferred, however, to seek work as an actress, for which she was trained and qualified, and declined classification as a typist or receptionist. When claimant filed for benefits effective on July 6, 1953, she was classified as an actress and future reporting date was deferred, because the employment service does not undertake to security employment for actors. She diligently sought work as an actress and obtained temporary employment on infrequent occasions for one day. It was disclosed on interviews that claimant restricted her availability for employment exclusively to employment as an actress and refused to report on August 21, 1953, as directed, for reclassification as a typist-receptionist. The Appeal Board has held that she was entitled to benefits from July 6, 1953 to August 21, 1953, and from that portion of the decision the Commissioner appeals. The Board has disqualified claimant, on the ground that she was unavailable for employment, after August 21,1953, when she refused reclassification, and from that portion of the decision claimant cross-appeals. We may not say as a matter of law that the record does not sustain the Board’s decision as to both periods. Although claimant truthfully listed her occupation as an actress and sought work only in that profession during the first period mentioned, it does not appear that she refused other work or other classification during that period. It was within the province of the Board to find that she was available for employment. After she refused reclassification when work as a typist-receptionist was available, however, she rendered herself unavailable for employment within the meaning of the law. The Unemployment Insurance Law was intended for and expressly covers only those who are totally unemployed through no fault of their own and "no benefits shall be payable to any claimant who is not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience." (Labor Law, §591). (Emphasis supplied). Whether claimant’s "usual employment" be that of a typist-receptionist or an actress, it is without dispute that she was "reasonably fitted by training and experience" for employment as a typist-receptionist, and her refusal to seek or accept classification for which employment clearly brings her within the category of those to whom the statute mandates "No benefits shall be payable." The statute clearly outlines the conditions to be met and they may not be modified because an applicant desires to exclusively pursue a career, which is more attractive. "Where a person is reasonably fitted for more than one kind of employment he does not bring himself within the benefits provided by the statute if he refuses one kind merely because he prefers the other." (Matter of DelgadoCorsi, 278 App. Div. 237). See Matter of Boyle (Corsi), (277 App. Div. 1155); Matter of Gilbert (Corsi), (278 App. Div. 733); Matter of Pillersdorff (Corsi), (278 App. Div. 57). It is urged that claimant’s previous employment as a typist-receptionist was merely a "stop gap" employment necessary to further her career. The record discloses that between January 1951 and June 23, 1953, claimant had sixty-six weeks employment as a typist-receptionist and only five days of paid employment as an actress. Though other employment might interfere with her efforts to gain employment as an actress, the immediate prospect of finding substantial and regular employment in that field is too remote to constitute a just cause for refusing other employment. Claimant may not exclusively pursue her chosen career at the expense of unemployment contributions made by others. In so doing she removes herself from the spirit, purpose and letter of the Unemployment Insurance Law. The decision of the Unemployment Insurance Appeal Board should be affirmed, without costs. (April 1, 1955)

COMMENTS

Although the issue in the case here reported is one of unavailability, the opinion of the Court is such that it renders obsolete Release A-750-1334 (A.B. 47,285-54) which involves an issue of refusal. In that case, an actor with 36 weeks of clerical employment in the base period, was held to have refused clerical work with good cause. As is noted in the "comments" of that release, no appeal was taken from the Board’s decision inasmuch as the case here reported was pending decision in the courts.

The principle reflected in the head note of this case (Matter of Austen) should be applied whether the issue of refusal or unavailable is involved. Release A-750-1334 should be marked as obsolete.




A-750-1358
Index No. 1730-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 3, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Personal Affairs

Appeal Board Case Number 49,052-55

LEAVE OF ABSENCE DENIED WITH CLAIMANT ASSUMING RISK OF NON-REINSTATEMENT UPON RETURN

Voluntary leaving of employment for the purpose of taking a non-essential trip abroad is without good cause when claimant is not granted a leave of absence and assumes the risk of not being re-employed upon his return.

Referee’s Findings of Fact: A hearing was held at which claimant, his witness and a representative of his employer appeared and testified. A statement was submitted on behalf of the Industrial Commissioner in lieu of an appearance. Claimant, an optician, filed for benefits on October 22 effective October 18, 1954. By initial determination effective October 18 he was disqualified for 42 days for voluntarily leaving employment without good cause. He filed a new claim effective November 29 and on this filing was held not to have filed a valid original claim because he had only 18 weeks of employment in the applicable base period. The initial determination of voluntary leaving of employment without good cause was mailed to claimant on November 5. He executed a formal request for hearing on December 7. A preliminary objection has been raised that claimant’s request was not timely. Claimant worked for the same employer for over 25 years to April 1954. He then desired a leave of absence because he had received word that his aged mother was seriously ill abroad and he was anxious to visit her. He spoke to the business agent of his union and also spoke to the head of his employer’s organization. He was told that no definite guarantee could be given at that time, but to communicate with his employer on his return from abroad. Claimant thereupon left and returned from abroad in October. He promptly communicated with his employer but there was no work then available for him. He thereafter filed the claim in issue. When claimant was questioned at the insurance office he was told about the disqualification which was intended to be issued and objected orally thereto. He did not return to the insurance office after the issuance of the initial determination in reliance upon what he believed had been instructions to him not to return to that office until November 29. Had it not been for what he believed were instructions to this effect he would have continued to report and would earlier have requested a hearing.

Referee’s Opinion and Decision: Although claimant did not formally request a hearing within 20 days from the issuance of the determination no November 5 he did object orally on the very date that the determination was issued when he was interviewed at the insurance office with respect to the circumstances surrounding the termination of his employment. I am convinced that although it was not intended by the insurance office representative that claimant conclude that he was to discontinue reporting until November 29, claimant relied upon what he considered to be instructions to this effect. I hold that claimant’s oral protest was sufficient to constitute a request for a hearing and that he is entitled to a hearing on the merits. In the instant case claimant did not leave his job over any objection voiced by his employer. He followed what had been standard practice to extend leaves of absence to employees of long standing if there was a meritorious reason therefore. Claimant left under a mutual understanding that there would be further work for him on his return. The failure of his employer to furnish claimant with additional work when he reapplied following his return from abroad was because of a falling off in business which was not anticipated at the time claimant left. I hold under these circumstances that claimant’s leaving was not without good cause under circumstances, which should subject him to disqualification. The initial determination that claimant voluntarily left employment without good cause is overruled.

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: After a 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 as follows: We find that claimant voluntarily left his employment to make a trip to Germany to accompany his wife, as a matter of personal convenience and not because of any compelling necessity. He and his wife went to Europe to see his wife’s mother, not claimant’s mother, as was found by the referee. Claimant was aware that his employer did not grant him a leave of absence for the purpose of his visit to Germany and that he was to assume the risk of being re-employed upon his return. The question presented is whether or not claimant voluntarily left his employment with good cause. After an examination of the record and testimony adduced before the referee, we can not agree with the conclusion reached by the referee, which is at variance with his findings of fact, that claimant left his employment under a mutual understanding that there would be further work for him on his return from abroad. On the contrary, claimant was made aware that his request for a leave of absence for a period of six months would not be granted. He was given to understand that if work were available for him upon his return from abroad, he might be rehired, but there was no assurance that a job would be available. When claimant returned from his trip and applied for reinstatement, his employer found no need for his services and did not rehire him. Under the circumstances, claimant is deemed to have left his 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 October 18, 1954 on the ground that he voluntarily left his employment without good cause is sustained. The decision of the referee is reversed. (April 1, 1955)




A-750-1359
Index No. 1515-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

May 24, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS REGISTRATION & CERTIFICATION
Misrepresentation
Evidence of; Miscellaneous

Referee Case Number 523-138-55R

FALSELY CERTIFYING TO WORK SEARCH EFFORTS

Falsely certifying to have made written applications at employment agencies constitutes a wilful misrepresentation to obtain benefits.

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 filed for benefits effective January 31, 1955. By initial determination effective that date, she was disqualified for 42 days after the certification of her return to the labor market because of voluntary leaving of employment without good cause and withdrawal from the labor market. Her future benefits were reduced by 20 effective days because of a wilful misrepresentation to obtain benefits. Claimant was employed by a marine insurance firm for about six years up to August 15, 1954, at a terminal salary of $70 to $75 weekly, as a clerk-typist. In April, she gave notice of her intention to resign effective the middle of August because of the volume of work which required that she take some home with her on approximately ten weekends during the busy season of the year. She was not compensated for this and although she would have remained if she had been offered more money, she preferred that additional help be hired in order to perform the extra work. During her reporting period, claimant was ready and willing to work but only in the City Island section of the Bronx where she resides. There is practically no opportunity for her to get employment in that area at least until May 1. On two occasions at the insurance office, claimant certified in writing that she had executed written applications at employment agencies when she had not; at the time she made these certifications she intended to apply to the agencies and subsequently did.

Referee’s Opinion and Decision: Claimant did not have good cause to quit her job under the Unemployment Insurance Law. She disclaimed any contention that the work was injurious to her health and admitted that her pay rate was in part based on the nature and amount of work she did. She was out of the labor market in view of her restriction to work in the City Island section of the Bronx where there was no opportunity of her employment, on her testimony, until the beginning of May. The false certifications referred to constituted wilful misrepresentations to obtain benefits under Section 594 of the Law. The initial determinations are sustained. (March 21, 1955)




A-750-1361
Index No. 1250C-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 24, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Personnel Reasons

Appeal Board Case Number 49,253-55

REFUSAL OF EMPLOYMENT: INTERFERENCE WITH SCHOOL HOURS

Refusal of employment with customary hours in the industry because the hours interfere with attendance at night college classes in without good cause regardless of work opportunities at other hours at which claimant previously worked.

Referee’s Findings of Fact: A hearing was held at which claimant and representatives of the Industrial Commissioner appeared and testified. Claimant filed a claim effective October 4, 1954. By initial determination she was disqualified for refusal of employment without good cause effective November 12 and effective November 30. By alternative initial determination she was ruled ineligible because of unavailability for employment effective November 12. She was declared overpaid $50.75 for the weeks ending November 14 and November 21. Claimant, a single woman, 21 years of age, was employed from October 1952, until August 13, 1954, by a chain bakery store as a shop manager at $51.75 for a five and a half day week. Her hours of employment were 7 a.m. to 3 p.m. and 8 a.m. to 5 p.m. or at claimant’s convenience. During the period of her employment claimant was attending night classes at a local college. The classes began at 5:45 p.m. During the period in issue, she was also attending the same school two nights a week beginning 5:45 p.m. On November 12 claimant was called to the employment office and an interviewer discussed with claimant the possibility of her accepting employment with a department store. There were many job orders at the time for temporary salespersons, but they all required employment until 6 p.m. with an additional night until 9 p.m. or 9:30 p.m. Claimant was not interested in any of those jobs because of the hours, which would conflict with her school attendance. She indicated that she would take a job until 5:30 p.m. She was not offered any job until November 30 when she was offered employment with a specific department store as a temporary salesperson to work from 9:15 a.m. to 5:45 p.m. at $40 a week. Claimant refused the job because the hours would interfere with her school. On claimant’s last job she was required to spend most of her time keeping the records of the store, ordering merchandise and supervising the work of eight persons. She is able to type and has done filing. She has sought employment by applying to six employment agencies, which referred her to at least 20 employers for work in the clerical capacity. She does not restrict her employment in any manner except as to not being willing to work subsequent to 5:30 p.m. Claimant was placed by a fee charging agency in a temporary job and worked from December 8,1954, through January 15 as a typist-clerk at $40 a week. Most white collar workers are not employed after 5:30 p.m.

Referee’s Opinion and Decision: There was no definite job offer made to claimant on November 12. Therefore, there was no refusal effective that date. The job offered to claimant on November 30 she refused because of the hours which would interfere with her schooling. There were other opportunities for claimant within the hours she was willing to work and which she had previously worked. She therefore had good cause for refusing the job. Claimant’s restriction to employment to no later than 5:30 p.m. was not sufficient to render claimant unavailable for employment. She has sought employment diligently by applying to many employers to which she had been referred by fee charging agencies. The jobs to which she was referred were all within the hours that she was willing to work. There was not other disqualifying information submitted and claimant obtained employment because of her own efforts. She therefore was available within the meaning of the Unemployment Insurance Law during the period she claimed benefits. The initial determinations are overruled. Claimant was not overpaid.

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 of this Board, except that we hold that the fact that acceptance of the job offer on November 30 would interfere with claimant’s attendance at school was not good cause for refusal of such employment. 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 modified. The initial determination of the local office disqualifying claimant from receiving benefits effective November 30, 1954 on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience, is sustained. The other initial determinations above referred to are overruled. Claimant was not overpaid in benefits. The decision of the referee is modified accordingly, and as so modified, is affirmed. (April 15,1955)




A-750-1363
Index No. 1205F-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 24, 1955

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

Appeal Board Case Number 31,002-52

REFUSAL DURING PERIOD OF MISCONDUCT SUSPENSION

A disqualification from receiving benefits for refusal of employment may be imposed during a period of suspension from benefits because of misconduct.

Referee’s Findings of Fact: Hearings were held at which claimant and representatives of the employer and of the Industrial Commissioner appeared. Testimony was taken. Claimant, a general helper, filed for benefits effective October 29, 1951. By an initial determination effective October 17 her benefits were suspended for seven weeks for loss of employment because of misconduct in the course thereof. Claimant was also disqualified effective November 14 for refusal of employment. Claimant worked for a biscuit company for eight years to October 16,1951, when she was discharged by the employer after she became involved in fighting in the course of her work. Consideration in discharging claimant was also given to her allegedly unsatisfactory record, namely excessive absenteeism, poor workmanship and chronic complaints. After claimant’s discharge, reinstatement of claimant and the other person involved in the altercation was asked by the union. The other person was reinstated because of a superior work record. Claimant was not reinstated. It appeared that claimant referred derogatorily by vile name-calling to her fellow-employee, whereupon the other woman struck her. The altercation then ensured. Claimant contended that she was so exasperated and unnerved by the refusal of her co-worker to stop the machine at which they were working when it appeared that some of the work must be spoiled, that she lost control of herself and indulged in the name calling. When claimant was registered in the employment office, she informed it that she did not desire to have factory employment any longer. Claimant had had past experience as a salesperson. She considered herself competent to do such work and she asked that she be offered employment as a salesperson. Therefore, on November 14 the employment office offered claimant a temporary job for the Christmas holidays as saleswoman in one of the department stores. Concededly, the usual pay rate is 90¢ hourly for such work. In the department store to which claimant was being referred, the union of jurisdiction permitted the employer to hire temporary employees at $33 weekly. It appears that there were about four department stores in the metropolitan area which received the same sanction either from a store-controlled union or independent unions. Claimant refused the job for insufficient pay.

Referee’s Opinion and Decision: Since claimant was guilty of provocation which led to the altercation in the employer’s establishment while all were at work, I must hold that her discharge was due to misconduct in the course of employment. Fighting during work on the employer’s premises is recognized as being misconduct in the course of employment. Claimant’s benefits were correctly suspended therefore beginning October 17 the day after she was last employed. However, claimant is not to be disqualified for refusal of employment. She was then in a period of suspension when no benefits of any kind could accrue to her. Section 592.2 requires that

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

The suspension of claimant’s benefits during the period gave her with rights or obligations under the Unemployment Insurance Law. Since she was not a benefit claimant on November 14 she cannot be disqualified for refusing employment. Moreover, claimant may not be disqualified for refusing to accept a job at a pay rate which was concededly below the prevailing hiring rate for her occupation, regardless of any sanction given by any union, independent or otherwise. The initial determination of misconduct is sustained. The initial determination of refusal of employment 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 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 and conclusions of this Board, except as follows: Claimant was employed at factory work for the past eight years. She has restricted her present availability for employment to work as a salesperson which she has not done for many years prior thereto. We are not in accord with the conclusion reached by the referee with respect to the initial determination in issue on this appeal. For the past eight years, claimant has been employed as a general helper in a factory. She has limited her employability to sales work which she concededly has not performed for many years prior thereto. Under the circumstances, we believe the claimant was offered suitable employment and one for which she is reasonably fitted by training and experience. The rate of pay was not substantially less favorable than the work prevailing for similar work in the locality for sales personnel with claimant’s background and experience. We therefore hold that claimant refused the offer of employment without good cause and that she should be disqualified for such refusal. The initial determination of the local office disqualifying claimant from receiving benefits, effective November 14, 1951, on the ground that, without good cause, she refused an offer of employment for which she is reasonably fitted by training and experience is sustained. The decision of the referee is reversed. (June 20, 1952)

COMMENTS

This decision was rendered two years ago. It is released at this time since many inquiries have recently been received concerning proper determinations under such circumstances.

The Appeal Board decision does not plainly set forth the principle reflected in the "rule". However, the issue was recognized by the Referee who held that, since claimant was in a period of suspension because of misconduct, she could not be disqualified for refusal of employment. On appeal, the Board reversed the Referee and in doing so, held in effect that a refusal of employment without god cause, although it occurs during a misconduct suspension, will result in a disqualification.

A decision in accordance with this principle was recently also rendered by a Referee in Referee Case No. 538-244-55R.




A-750-1366
Index No. 1550-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 16, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION & REPORTING
Misrepresentation
Identity of Employer

Appeal Board Case Number 49,704-55

MISREPRESENTATION; CONCEALMENT OF LAST EMPLOYER

A claimant who has wilfully made a false statement concerning the identity of his true last employer is subject to a forfeiture of benefits even though claimant’s motive for making the false statement was not to induce the payment of benefits and even though had the true facts been stated by claimant, no disqualification from benefits would have resulted.

Referee’s Decision: The initial determination of the local office holding that claimant wilfully made a false representation for the purpose of obtaining benefits, as a result of which a forfeit penalty of 20 effective days was imposed against his future benefit rights is overruled.

Appealed By: Industrial Commissioner

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

Claimant, a construction laborer, re-filed a claim effective December 27, 1954. By initial determination, it was ruled that he made a wilful misrepresentation and his rights to future benefits were reduced by 20 effective days. The determination was sustained in Case 534-48-55R, at which time claimant failed to appear. Leave was given to claimant to apply to reopen the case upon giving satisfactory explanation for his default. Claimant did not appear at the hearing because of a death in the family and has applied to reopen that case.

Claimant is 48 years of age. He was last employed prior to filing his claim by a cemetery as a laborer for approximately six months until December 15 when he was let go because of absences attributable to illness. When claimant filed his claim he stated that he was last employed by the C. Construction Corporation and that he last worked on June 23, 1954, and became unemployed because of lack of work. He also indicated that he had not filed a claim because he had been out of town. Claimant did not intend to deceive or withhold information from the insurance office because he knew that his last employer was a non-covered employer and he did not believe that it was interested in that type of employment. Claimant was motivated by the fact that he is a member of a construction workers’ union and did not want it to learn that he had been employed in work which was not of a union nature because his membership in the union would be revoked and he would lose future employment opportunities.

There was no disqualifying determination because of claimant’s loss of his last employment.

We make the additional findings of fact: The referee overruled the initial determination, from which decision the Industrial Commissioner appeals to this Board.

Appeal Board Opinion and Decision: The issue in this case is whether claimant wilfully made a false representation for the purpose of obtaining benefits. The referee overruled the initial determination of the local office on the ground that claimant’s motive in making the false representation was not to obtain benefits, but to prevent his union from learning that he had been employed by a non-union employer, which would jeopardize his union membership. The referee cited Matter of Avis, 283 App. Div. 908, affirming Appeal Board, 38,790-53, in support of his ruling. We are not in accord with the conclusions of the referee. The claimant admittedly made several false statements to the local office representative when he filed his claim for benefits. He stated the name of his last employer as C. Construction Corporation; that he had last been employed on June 23, 1954; that his loss of employment was due to lack of work and that he had not filed his claim before December because he had been out of town from August until December 1954. All of these statements were concededly false. Claimant’s last employer was C. Cemetery; his last loss of employment was due to his discharge because of repeated absences due to illness; that last date of his employment was December 15, 1954, and between August and December 1954, claimant was in town and was employed by the C. Cemetery. We have repeatedly held that:

In order for the local office to determine whether a person is under suspension or disqualification in accordance with Section 527, subdivision (b) thereof, it is essential that the claimant disclose the name of his last employer. Failure on the part of claimant to disclose the name of his employer would make it virtually impossible for the local office to investigate and determine whether a claimant is disqualified or suspended from receiving benefits. Therefore, claimant’s failure to disclose his last employer must be considered a wilful misrepresentation to obtain benefits and a forfeit penalty of 20 effective days is to be imposed upon claimant accordingly. (Appeal board, 31,643-52; Appeal Board, 33,371-52.)

The fact that claimant was not disqualified by the local office because he left his employment with C. Cemetery, after claimant disclosed the identity of such employer and an investigation was made by the local office, does not in any way change the nature of the offense charged. Until a ruling had been made by the local office after an investigation of all the facts, claimant had no way of knowing whether his leaving of employment with C. Cemetery would lead to a disqualification by the local office. By concealing the identity of such last employer, claimant precluded the local office from making such investigation and a determination on the basis thereof. If a claimant certifies to a false fact, knowing that it is false, the statute authorizes the forfeiture, regardless of claimant’s interpretation of the ultimate effect of his false statement (See Matter of Bernstein, 278 App. Div. 625, affirmed, 303 N.Y. 755, reversing Appeal Board, 22,265-50). In our opinion, the decision of the Court in Matter of Davis, above, to which reference is made in the referee’s decision, is not applicable to the facts in this case. In that case the misrepresentation was made by claimant for the purpose of disqualifying herself from receiving benefits. We believe that the decision in that case should be limited solely to the facts thereof. We hold that claimant did make a false representation for the purpose of obtaining benefits and that the forfeiture imposed was proper. It is not necessary to prove a criminal intent to support a charge of a wilful misrepresentation under Section 594 of the Law. (See Matter of Bernstein, above.) The determination of the local office holding that claimant wilfully made a false representation for the purpose of obtaining benefits, as a result of which a forfeit penalty of 20 effective days was imposed against his future benefit rights, is sustained. The decision of the referee is reversed. (May 6,1955)

COMMENTS

The Referee overruled the Local Office determination on the basis of the decision of the Court in Matter of Davis (not reported). The Appeal Board stated that the Court decision is not applicable to the facts in this case since, in the Davis case, the misrepresentation was made by claimant for the purpose of disqualifying herself from receiving benefits and that the Court’s decision should be limited solely to the facts thereof. For the purpose of comparison, the following is the decision of the Court in Matter of Davis.

"Claimant usually worked Saturdays and Sundays only. She reported to the local unemployment insurance office on May 18, 1953, and reported that she had worked on Sunday, May 17,1953, and had earned $10 on that day, but had called her employer’s place of business on that morning and stated that she was sick. Claimant states that she had no ulterior motive in making this false statement because by so doing she was disqualifying herself for benefits for that day. She was afraid that if she stated that she was sick and did not work it would involve obtaining a doctor’s certificate and other complications.

"The Unemployment Insurance Law (Labor Law, §594), provides: ‘A claimant who has wilfully made a false statement or representation to obtain any benefit under the provisions of this article shall forfeit * * *.’ The forfeiture imposed by the Industrial Commissioner in this case was for 24 effective days. Something more is required by the statute than a wilful false statement. It must be made ‘to obtain benefits.’ Certainly the false statement here was not made to obtain any cash benefit, and we do not think the record discloses that it was made to obtain any benefit. It was really made to disqualify her from benefits for the day involved. We do not think that the false statement was made for the purpose, which the statute requires, or comes within the spirit or intent of the statute necessary to work forfeiture. We do not hold that the false statement must be made to obtain a cash benefit, and we certainly do not condone making any false statement at all, but upon this particular record we do not think that a forfeiture was authorized."




A-750-1367
Index No. 1610-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 16, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Provoked Discharge

Appeal Board Case Number 49,803-55

PROVOKED DISCHARGE; REFUSAL TO FILL OUT SECURITY QUESTIONNAIRE

Refusal by claimant to fill out a personnel security questionnaire which was a condition to continuance in employment, and was required by the Federal Department of Defense from the employer’s employees, constitutes a voluntary leaving of employment without good cause.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective January 17, 1955 on the ground that he voluntarily left his employment without good cause is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: The facts are not in dispute. The following findings of fact made by the referee which are amply supported by the evidence adduced before him are adopted as the findings of fact of this Board:

* * *

Claimant, a messenger, filed for benefits effective January 17, 1955. An initial determination was issued disqualifying him for 42 days commencing with that date because of voluntary leaving of employment without good cause, and in the alternative, suspending his benefits for seven weeks commencing with January 15 because of loss of employment due to misconduct in connection therewith. The employer is a communications organization. Claimant, who is 61 years old, worked for it from September 1953, until January 14, 1955. During the first three or four months of his employment he worked full time, thereafter part time for reasons of health. He was stationed at a branch office on 31st Street in Manhattan, and was paid 90-2/3 cents an hour. Claimant was a member of a union local with which the employer was in contractual relations. Claimant’s services were terminated by the employer after he refused to fill out a personnel security questionnaire which the Federal Department of Defense required the employer to have filled out and certified as correct by its employees. The testimony of the employer's witness and that of claimant was not in agreement as to when the questionnaire was first given to claimant for that purpose, the former stating he believed it was in August, and claimant declaring it was shortly before Christmas. However, claimant's attorney conceded that claimant was given a reasonable opportunity to furnish the information requested. The questionnaire, in part, called for information which usually would be considered of a personal nature, relating not only to claimant but also to his close relatives. Claimant refrained from filling it out. He did so for reasons which he contended were his private concern, without indicating which specific items he regarded as objectionable. His union initially voiced objection to having its members fill out the questionnaire, but subsequently acquiesced in the procedure and advised them to comply. Claimant, however, did not do so. When claimant finished his work day on January 14 he was told that under the circumstances he should not return, but nevertheless he reported for work the following Monday. He was not permitted to continue on the job. In furnishing the insurance office with information relating to claimant's separation from his employment, the employer stated that claimant last worked for it on January 14 and left of his own accord, explaining that he had refused to fill out the security questionnaire.

Appeal Board Opinion and Decision: The referee found that claimant was discharged because of his failure to execute the personnel security questionnaire as required by the Department of Defense. The referee, in overruling the initial determination, predicated his decision upon Matter of Baida, 282 App. Div. 975, affirming Appeal Board, 27,157-51. However, in view of the decision in Matter of Malaspina, 285 App. Div. 564, reversing appeal Board, 42,606-54, which was decided by the Appellate Division, Third Department, after the referee’s decision herein, claimant must be deemed, because of his refusal to sign the aforementioned questionnaire, to have left his employment without good cause and subject to a disqualification therefore.

What was said in the opinion by Bergan, J., in the Malaspina case is applicable in principle to the situation under consideration, as follows:

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.

Under the circumstances of this case wee deem claimant’s voluntary leaving of his employment to be without good cause. The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective January 17, 1955 on the ground that he voluntarily left his employment without good cause is sustained. The decision of the referee, insofar as appealed from, is reversed. (May 13, 1955)




A-750-1373
Index No. 1615-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 29, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Grievances and Objections
Miscellaneous – Other

Appeal Board Case Number UCFE-10-55

VOLUNTARY LEAVING; REFUSAL TO TAKE REQUIRED COMPETING EXAMINATION

Where claimant knew that taking and passing an examination were conditions imposed for continuing employment (postal clerk), resignation because of unwillingness to take the examination constitutes a voluntary leaving of employment without good cause.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective January 31, 1955, on the ground that he voluntarily left his employment without good cause is overruled.

Appealed By: Industrial Commissioner

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

* * *

Claimant filed for Federal employee benefits effective January 31, 1955. By initial determination he was disqualified for 42 days effective January 31 for voluntary leaving of his employment without good cause. For about eight years claimant worked for the post office as a substitute postal clerk, Grade III. His hourly rate of pay was $1.81½ and with overtime, claimant earned about $5,000 a year. In order to retain the job, claimant was required to take three examinations a year. For five years, claimant was able to study for these examinations and pass them. During the last year of his employment, however, he had serious domestic difficulties and as a consequence, he was unable to prepare for the examinations and therefore did not take them. Claimant was advised by the district superintendent that he faced dismissal because of his failure to take these examinations.

Since claimant was on other civil service lists and a dismissal from his position would have jeopardized his changes of security other employment, claimant resigned. In the letter from the district supervisor dated April 13, 1955, it is stated that if claimant had not resigned, he would have been dismissed.

* * *

We make the following additional findings of fact: The referee overruled the initial determination, from which decision the Industrial Commissioner appeals.

Appeal Board Opinion and Decision: The referee overruled the initial determination on the theory that claimant was forced to resign and was not acting voluntarily; that his inability to prepare for the examinations was not a voluntary act. We do not agree with the referee. Where a claimant can continue working but does not to so and leaves his employment without other prospects of employment he is subject to disqualification unless he has good cause for leaving his employment. The impending dismissal which was facing claimant did not justify his resigning at a time when he could have continued working. Furthermore, even if his leaving were in fact involuntary, the termination of his employment because of his failure to take the examinations was in and of itself tantamount to a voluntary leaving of employment since he knew that taking such examination and passing same were conditions imposed for continuing in the said employment. In Matter of Malaspina, 285 App. Div. 564, reversing Appeal Board, 42,606-54, it was stated as follows:

* * * 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 work. The refusal to pay a bus fare to get to work on time in the face of a foreseeable discharge; or to get tools, clothing or equipment where they were required as the employee’s part of the arrangement; 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. * * *

In the instant case it was claimant’s responsibility to take the examinations. Having failed to do so he is subject to the disqualification imposed by law. That claimant’s domestic problems may have interfered with his taking the examinations does not under the circumstances of this case provide good cause within the meaning of the law. We are not persuaded that taking the examinations was "a condition beyond the reasonable reach of the employee" (See Matter of Malaspina, above). Under all of the facts and circumstances in this case we conclude that the claimant did not have good cause for leaving his employment and his consequent disqualification was, therefore, proper. The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective January 31, 1955, on the ground that he voluntarily left his employment without good cause, is sustained. The decision of the referee is reversed. (June 10, 1955)




A-750-1374
Index No. 1235A-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 29, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Violation of Employer’s Agreement

Appeal Board Case Number 50,097-55

VOLUNTARY LEAVING; UNFULFILLED PROMISE OF WAGE INCREASE

Leaving employment because of employer’s unfulfilled promise of a wage increase is without good cause where business conditions did not warrant an increase and claimant had received several increases in the past to the employer’s maximum for the position, such final salary being not substantially less favorable than that prevailing for similar services in the locality.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective February 16, 1955 on the ground that she voluntarily left her employment without good cause is overruled.

Appealed By: Industrial Commissioner

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

* * *

Claimant, a secretary, filed effective February 16, 1955. By initial determination effective that date, she was disqualified for 42 days for voluntary leaving of employment without good cause. Claimant was employed by an insurance firm for about three years up to February 15, 1955, at a starting salary of $50 and terminal salary of $70. She contended, and her contention was corroborated by the employer, that she received a promise of an increase in January beyond that amount. According to the employer, the increase could not be given because business conditions did not warrant it. Because of this claimant gave two weeks’ notice of intention to quit and did.

We make the following additional findings of fact: With her last increase, claimant had reached her employer’s maximum for the position. Claimant had no prospect of other employment at the time of her leaving. The referee overruled the initial determination of the local office and the Industrial Commissioner now appeals to this Board.

Appeal Board Opinion and Decision: We do not agree with the conclusion of the referee that claimant had good cause to leave her employment. The referee based his decision on the premise that the employer was committed to give claimant an increase and failed to do so. An analysis of the evidence leads us to a different conclusion. We have repeatedly held that although a desire for a raise in salary is understandable, leaving one’s employment when a raise is not given does not, by itself, constitute good cause for leaving within the meaning of the Unemployment Insurance Law. This is particularly true when we take into consideration the fact that claimant had no immediate prospect of employment when she left her position; that she had had her salary increased from $50 to $70 per week in the first two years of her employment; that the employer advised her that business conditions did not warrant an increase at that time, that claimant had reached the employer’s maximum for the position and that the remuneration received by claimant was not substantially less favorable to her than that prevailing for similar services in her locality. Under the circumstances herein, claimant was properly disqualified for having voluntarily left her employment without good cause. The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective February 16, 1955 on the ground that she voluntarily left her employment without god cause, is sustained. The decision of the referee is reversed. (June 10, 1955)




A-750-1376
Index No. 1480A-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 20, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Public Service Officials

Appeal Board Case Number 48,967-55

TOTAL UNEMPLOYMENT, QUESTION OF; ELECTED JUSTICE OF PEACE

An elected member of the Town Board and Justice of the Peace, who receives an annual salary of $850 but whose services are not of a continuing nature, is ineligible for benefits because of "employment" only on those specific days when he attended meetings of the Town Board or performed functions as Justice of the Peace.

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective November 8, 1954 on the ground that he was not totally unemployed is sustained.

Appealed By: Claimant

Findings of Fact: Claimant resides in Mayfield, New York and worked for a contractor for one and a half years as an oiler on the New York State Thruway. Prior thereto he worked as a glove cutter for 15 years. He was laid off for lack of work on November 4, 1954. He filed an original claim for benefits effective November 8, 1954 and registered for employment. Claimant was elected Justice of the Peace for the Town of Mayfield in November 1951 for a four-year term commencing January 1952. The town elects two justices. Claimant is a member of the Town Board, which meets at 8 p.m. on the first Monday of each month. Other than to attend meetings and assist with the budget, he has no duties as a member of the Town Board. He receives an annual salary of $850 which is paid to him on a monthly basis. In addition, the justices have civil and criminal jurisdiction. The justices fix the hours during which they perform duties, most of which are performed during the evenings. When one justice is not available, the other can be called upon to serve. While employed, claimant’s duties as a justice of the peace never interfered with his full-time employment. Only on one occasion was claimant contacted at his place of employment in connection with his duties as a justice. During his tenure as a justice, claimant has never conducted either a civil or a criminal trial, with or without a jury. His work as a justice consists largely of pleas and dispositions in connection with traffic violations. In the entire year of 1954, claimant had 33 cases involving such violations and he estimated that the entire time consumed in that year in disposing of them approximated 40 hours. Court cases were conducted in claimant’s home and he bore all necessary expenses in connection therewith. The local office issued an initial determination holding claimant ineligible to receive benefits effective November 8, 1954 on the ground that he was not totally unemployed. The basis of such determination was that claimant was holding a salaried public office as a justice of the peace and as such was continuously employed. Claimant protested and requested a hearing. The referee sustained the initial determination from which decision claimant appealed to the Board.

Appeal Board Opinion and Decision: The referee’s ruling that claimant was not totally unemployed because throughout the period in issue his duties as a justice of the peace required him to hold himself available for call whenever the occasion should arise, was based on the authority of prior decisions of the Board. In a recent decision involving a justice of the peace of the Town of Hague who received an annual salary of $400, we distinguished and ruled inapplicable the cases relied on by the referee. The following portion of our opinion in Appeal Board, 47,338-54 is equally applicable to the facts in the instant case:

* * *

The Appeal Board decisions, involving the councilman, the ward supervisor, the town clerk and the truant officer, relied on by the referee, are distinguishable from the instant case. There was evidence in those cases that the claimants were performing services of a continuous nature, in that they were called upon to perform their official duties from day to day. Such does not appear to be the situation here, and consequently those decisions are not determinative of the issue in the instant case. Reference to Section 45 of the Justice Court Act and Section 164 of the Code of Criminal Procedure, cited by the claimant, shows that in the case of any civil action commenced by a summons before a justice of the peace, the date and time of the hearing is fixed at a time agreeable to the justice of the peace and that in the case of any criminal proceeding provision is made, in the event the justice is absent or unable to act, for the transfer of the case to the nearest or most accessible magistrate in the town or in the same county. The record now before us shows that whatever official duties were performed by claimant took place at the times fixed by claimant and that never during the 15 years of his employment has there been any interference with his work or his availability for other employment. We conclude, therefore, that only on those days when claimant attended meetings of the Town Board or attended to actual trial of cases was he not totally unemployed. Since the record does not disclose the number of meetings attended by claimant or the actual trials conducted by him during the period in question, this case is returned to the local office for further inquiry and a new determination in accordance with this decision.

The initial determination of the local office holding claimant ineligible to receive benefits effective November 8, 1954 on the ground that he was not totally unemployed is modified to the extent that claimant was not totally unemployed only on those specific days when he attended meetings of the Town Board or conducted trials of cases. This case is returned to the local office for a new determination in accordance with the foregoing. The decision of the referee is modified accordingly and, as so modified, is affirmed. (June 27, 1955)

COMMENTS

It is suggested that this decision be carefully reviewed in order to assure uniform and consistent application of the principle.




A-750-1379
Index No. 1580-A2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 20, 1955

INTERPRETATION SERVICE – BENEFIT CLAIM
CLAIMS, REGISTRATION, ETC.
Misrepresentation – Penalty period

Appeal Board Case number 50,318-55

QUESTION OF PENALTY PERIOD WHERE WAITING WEEK IS CANCELLED

A forfeit penalty of 20 effective days rather than 24 days is to be imposed for a wilful misrepresentation which affects a waiting period, even though an overpayment subsequently results because of a benefit payment made for a following week.

Referee’s Findings of Fact: A hearing was held at which claimant and representatives of her union, of the employer, and of the Industrial Commissioner appeared and testimony was taken. Claimant, a finisher, filed effective November 8, 1954. By initial determinations she was ruled ineligible for benefits in the week ending November 14 on the ground that she was not totally unemployed, and she was charged with an overpayment of $30 and with having wilfully made a false statement on November 23 thereby reducing her rights to future benefits by 24 effective days to be forfeited. Claimant worked on three days in the week ending November 14. Her earnings, as a result thereof, were in excess of $30. Notwithstanding that fact, on November 23 claimant certified that she had worked on only two days of the week in issue and that she was unemployed on each of the other days in that week and that her earnings were only $26. On the basis of such certification claimant was credited with two effective days, but since that was the week in which she had filed an original claim, she received no cash benefits but the two effective days with which she was credited were applied toward her waiting period. Subsequently, after she had accumulated two additional effective days in weeks to which she subsequently certified, she then commenced to receive benefit payments at the rate of $30 weekly. Claimant does not dispute the correctness of the initial determination ruling her ineligible due to lack of total unemployment, but she disputes the correctness of the initial determinations establishing the overpayment and charging her with a wilful misrepresentation. She contends that she carelessly certified incorrectly for the week in issue.

Referee’s Opinion and Decision: In view of claimant’s concession with respect to the correctness of the ruling that she lacked total unemployment in the week ending November 14 such initial determination remains in effect. In view of claimant’s lack of total unemployment in that week, claimant was not entitled to the credit of two effective days which was granted on the basis of her certification, and hence she was overpaid all benefits subsequently paid to her on the premise that she had actually accumulated two effective days in the week ending November 14. Claimant has shown no valid reason for having certified to earnings in a lesser amount than her actual earnings and to unemployment on five days of the week, rather than only four days of the week. Her claim that the erroneous certification came about as a result of her carelessness cannot be accepted since it is presumed that she knew when she certified that she had actually worked on three days in the week in issue and that her earnings were in excess of $30. She therefore wilfully made a false statement to receive benefits as contemplated by the provisions of Section 594 of the Unemployment Insurance Law. In view of the fact that the week in issue was not a compensable week, and that claimant was credited only with effective days toward a waiting period, the correct penalty to be applied as a result of such wilful misrepresentation is 20 effective days to be forfeited rather than 24 effective days to be forfeited. The Appeal Board has so ruled in Appeal Board, 48,695-55 in a case involving identical facts, and the referee is bound by such decision. The initial determination ruling claimant ineligible for the week ending November 14 due to lack of total unemployment, is sustained. The initial determinations charging claimant with an overpayment and with having wilfully made a false statement to receive benefits are modified to the extent that it is held that claimant was overpaid all benefits received by her as a result of having been credited with two effective days in the week ending November 14 and the penalty for the wilful misrepresentation is reduced to 20 effective days to be forfeited and, as so modified, the initial determination is sustained.

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. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case. The claimant did not receive any cash benefits for the week ending November 14, 1954, which was the waiting week, as a result of her misrepresentation on November 23, 1954. Accordingly, the referee properly ruled that the number of effective days forfeited should be reduced to 20 days. (See Appeal Board, 48,695-55.) The decision of the referee is affirmed. July 1, 1955)




A-750-1384
Index No. 910-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 6, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETETERMINATION OF BENEFITS
Base Year Earnings & Employment
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous Employments

Appeal Board Case Number 51,115-55

TUG BOAT EMPLOYEE EMPLOYED BI-WEEKLY WITH THIRD WEEK OFF

A tug boat deckhand whose customary employment pattern is to work and be paid for 144 hours with respect to each three weeks unit, who performs this work within two weeks by working 12 hours daily so as to be off every third week, and who cannot accept employment aboard any vessel during that third week, is entitled to be credited with such third week as a "week of employment".

Referee’s Findings of Fact: A hearing was held at which claimant and representatives of his union, the employer, and of the Industrial Commissioner appeared. Testimony was taken. Claimant, a deckhand, filed a claim effective March 21, 1955, thereby establishing a base period from March 22, 1954 to March 20, 1955, thereby establishing a base period from March 22, 1954 to March 20, 1955. An initial determination was issued ruling him ineligible because he did not file a valid original claim, in that he did not have 20 weeks of employment in his base period. He was credited with 19 weeks of employment and earnings of $2269.08, with six employers. In regard to the employer herein he was credited with 11 weeks of employment and earnings of $1880.50. He claimed 16 weeks of employment with this employer. Claimant was employed on the "Samuel J. Dark" from November 26, 1954 to March 13, 1955. The pattern of his employment was to work for two weeks, 144 hours bi-weekly, 12 hours a day, instead of eight hours a day and to be off one week. The employer, by letter dated January 19, 1955, sent to the Division of Employment in regard to another claimant, Case 550-36-55R, in opposing payment of benefits to that claimant for the "off week," stated:

"We are enclosing your form L.O. 550 dated January 17, 1955, which he have executed. We think that the employee, Mr. W.S., is under a misapprehension in having filed an application for unemployment compensation benefits. The facts are these: Mr. S. is a deckhand on our tug "SAMUEL J. DARK". He is employed under a Collective Bargaining agreement, which fixes his daily rate of pay at $14.12. The daily rate of pay is compensation for an eight hour work day. In order to have more time ashore, for their own convenience, the crew members of the tug, by arrangement with the tug master, spend one third of the days during which the tug is in operation ashore, and this is accomplished by those of their fellow crew members who are aboard the tug working, in addition to their own eight-hour shifts, four hours for the benefit of the men ashore. As a matter of our bookkeeping convenience merely, we pay the men only for the days that they are actually aboard the tug, and on those days we pay them not eight, but twelve hours, or a day and a half's pay. The period during which Mr. S. is claiming to have been unemployed represents the time that he was ashore under the arrangement before-mentioned, and for which he has been paid by the method just outlined. We, therefore, believe that there is no basis for the claim."

In the above-cited case an initial determination had been issued ruling that claimant was not totally unemployed during the week that he was off. The case of S. was closed upon notification to the Referee Section that he could not appear because he was then employed. A similar initial determination was issued in the case of E.V.W., Case 12-117-53R. The claimant in that case withdrew his request for a hearing. The Industrial Commissioner's representative relies on Appeal Board, 43,058-54, affirming Case 3-115-53R, wherein the referee ruled that a seaman, whose work period during the month was two-thirds of the month and who was off one-third of the month, was totally unemployed during the third of the month he was off. The referee in that case made a finding of fact that during the ten days such claimant was off the boat, he performed no service for the employer and that he was ready, willing and able to accept other employment. Claimant herein, could not accept employment during the week off on any other vessel subject to the union contract. Claimant had earnings in covered employment with the employer herein as follows:

Great lakes Dredging Co.,
17 Batery Place,
New York, New York
E.R. Number 16-70571
Total No. Weeks in
Base Period
Total Earnings in
Base Period
16
$1880.50
Number of Weeks with Earnings
Less than $15
5

Referee’s Opinion and Decision: Section 524 of the Unemployment Insurance Law states as one of the definitions of a week of employment that it is a week in which a claimant does some work in employment for an employer liable for contributions. The Industrial Commissioner’s regulation 2(2)(g) amplifies the definition by providing that a week of employment includes any statutory week during any part of which an employee is on paid vacation or other paid leave of absence even if no actual work is performed. By this Regulation the definition of a week of employment has been extended to vacation weeks during which no work is done for the employer. Any other conclusion in regard to vacation weeks would be repugnant to the intent of the law. The contract of hire existing between the employer and claimant was a continuing one for consecutive three week periods. By contract the parties have accomplished the same result which was accomplished by the above Regulation. Regardless of the days on which services were actually performed, the respective three week units constituted weeks of employment. The issues in the cases cited above are in regard to whether the respective claimants were or were not totally unemployed. The issue in this case is in regard to whether the "off weeks" were weeks of employment as defined in the statute. The union and employers in the Harbor of New York who operate in the same manner regard such employees as having been employed during the off weeks. They do not contemplate that such employees shall be eligible for benefits during the off weeks. Consideration must be given to an industry practice which is widespread. Further, the facts in this case are substantially different from the facts found in the case upon which the Appeal Board decision is based. It was found therein that claimant was ready, able and willing to accept employment. Claimant herein could not obtain any employment aboard a vessel during his off weeks similar to the employment which he had. Based upon these several reasons, it is found that claimant had 16 weeks of employment including the weeks when he was not on the vessel. He should be credited with the filing of a valid original claim since he had at least 20 weeks of employment in his base period. He is eligible for benefits, subject to the other provisions of the Law. The employer is liable for contributions accordingly.

Appealed By: Industrial Commissioner

Appeal Board Decision: After a careful review of the record, testimony and evidence adduced before the referee, and due deliberation having been and 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 during the period in issue claimant worked 144 hours bi-weekly, not weekly, as inadvertently stated in the decision of the referee. After each bi-weekly work period claimant was off one week. During such week he was not free to accept other employment in his occupation. 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. (August 19, 1955)

COMMENTS

Although this decision relates to the question whether the "off" weeks were weeks of employment as defined in the statute, it follows that the claimant would have to be considered as employed and, therefore, not totally unemployed during the "off" weeks.




A-750-1385
Index No. 1505B-1
1535.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 6, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION & REPORTING
Misrepresentation or Misstatement
Evidence of – Miscellaneous

Appeal Board Case Number 51,489-55

FALSE INFORMATION RECORDED ON CLAIM FORM BY CLAIMANT’S AGENT

Where a claim form signed by the claimant contains false information, the penalty for wilful misrepresentation applies even though the blanks on that form calling for relevant information had been filled in by another person at claimant’s direction but without attempt at verification by claimant as to the accuracy of the information as recorded and even though the claimant alleges that the recorded information does not correspond to instruction given to that person.

Referee’s Decision: The initial determination of the local office holding that claimant M.R. wilfully made a false statement for the purpose of obtaining benefits and imposing a forfeiture of 20 effective days against her future benefit rights as a penalty therefore is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant M.R., a sewing-machine operator, worked for a dress manufacturer on May 23, 1955 and quit her job at the end of the day because she felt that the shop was inadequately lighted. The shop is not in fact inadequately lighted, having a number of large windows, fluorescent lights and individual lamps on each machine. Claimant refiled a claim for benefits effective May 24, 1955. She signed the claim form in her own handwriting. Blanks on the form calling for relevant information were filled in by another claimant for benefits at claimant’s direction. The reason stated for termination of employment was "no work." There was work available for claimant at the time she left her employment. Based on an interview with claimant and an investigation conducted by the local office, the local office issued initial determinations disqualifying claimant from receiving benefits for 42 consecutive days effective May 24, 1955 on the ground that she voluntarily left her employment without good cause and holding that she wilfully made a false statement for the purpose of obtaining benefits for which a forfeiture of 20 effective days was imposed. Claimant protested the determinations and requested a hearing. The referee sustained the determination as to voluntary leaving and overruled the determination as to misrepresentation. The Industrial Commissioner has appealed to the Board from such decision insofar as adverse to him.

Appeal Board Opinion and Decision: The referee overruled the initial determination of wilful misrepresentation on the premise that the person who filled out the form for claimant, in entering the words "no work" thereon, disregarded claimant’s instructions since he found that claimant had informed that person that she had quit the job because of the inadequate lighting in the shop. We do not agree with the referee’s conclusion because it is contrary to the weight of the credible evidence in the record. There appears to be no reason why the person who volunteered to assist claimant would deliberately violate claimant’s instructions as to the information to be recorded on the form. A person is ordinarily chargeable with the acts of another whom he appoints to act in his place and there appears to be no good reason for making an exception thereto under the facts herein. Even if it be true that claimant does not read English very well and that the information on the form was incorrectly recorded contrary to her instructions, it does not appear that claimant made any effort to verify the accuracy of the information as recorded by having one of the local office personnel read back to her the information contained thereon after the form was completed. This casts serious doubt on her good faith in the matter. An analysis of the testimony in the record discloses that claimant’s answers to questions were responsive, and a careful examination of her handwritten signature discloses that her ignorance of the English language is not perhaps as extensive as she claims. The determination of wilful misrepresentation was correctly issued by the local office. The initial determinations of the local office disqualifying claimant, M.R. from receiving benefits for 42 consecutive days effective May 24, 1955 for voluntary leaving of employment without good cause and holding that she wilfully made a false statement for the purpose of obtaining benefits for which a forfeiture of 20 effective days was imposed as a penalty are sustained. The decision of the referee is modified in accordance with the foregoing and, as so modified, is affirmed. (September 2, 1955)




A-750-1391
Index No. 1020-11
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 7, 1955

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

Appeal Board Case Number 52,272-55

QUESTION OF WHETHER EMPLOYER NOT SUBJECT TO LAW IS ENTITLED TO HEARING

An out-of-state employer, not subject to the New York Unemployment Insurance Law, is not entitled to a hearing on its objection to an initial determination allowing benefits to a former employee since he is not a "party affected" by such determination (Section 620.1(a)).

Referee’s Decision: The initial determination holding claimant eligible to receive benefits effective May 16, 1955, without disqualifying conditions, and overruling the employer’s objection to the initial determination on the ground that the claimant voluntarily left his employment without good cause at a time when work was available for him is sustained.

Appealed By: Employer

Findings of Fact: The employer, a Louisiana corporation, is engaged in the business of operating vessels out of New Orleans, where it maintains it office. It is subject to the Louisiana Unemployment Insurance Law. The claimant, a seaman, was employed from February 17 through May 8, 1955 aboard one of the employer’s vessels, which he left upon the completion of its voyage. Claimant filed an original interstate claim for benefits in Louisiana as the agent State against New York as the liable State effective May 16, 1955 and registered for employment. Predicated on his New York earnings in covered employment during his base period and information received from the employer herein, as claimant’s last employer, the Out-of-State Resident Office issued an initial determination holding claimant eligible to receive benefits effective May 16, 1955, without disqualifying conditions. The employer disputed the payment of benefits to claimant, objected to the aforementioned initial determination of the Out-of-State Resident Office, requested a hearing before a referee purportedly pursuant to Section 520.1(a) of the Unemployment Insurance Law and made the statutory deposit of $10. The referee sustained the initial determination of the Out-of-State Resident Office, overruled the employer’s objection and ruled that the employer was not entitled to the return of its statutory deposit. Thereupon, the employer appealed to the Board purportedly pursuant to Section 621.1 of the Law and made the statutory deposit of $25.

Appeal Board Opinion and Decision: Section 620.1(a) of the Unemployment Insurance Law reads 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. (Underscoring supplied).

Appellant is a Louisiana employer. It is not subject to the Unemployment Insurance Law of New York. Accordingly, it cannot be a "party affected" by the initial determination in this case, made by the Out-of-State Resident Office of this State within the meaning of that term as used in Section 620.1(a) of the Law. Therefore, the employer is not entitled to a hearing on its objection to the instant initial determination, and the referee was without jurisdiction to rule on the merits of the issue raised by the employer. The decision of the referee is modified in accordance with the foregoing. The initial determination of the Out-of-State resident Office holding claimant eligible to receive benefits effective May 16, 1955, without disqualifying conditions, remains in effect. (October 28, 1955).




A-750-1392
Index No. 1525A-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 21, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION & REPORTING
Filing and Certifying Requirements

Referee’s Case Number 546-859-55R

FAILURE TO KEEP PLACEMENT DATE ON INVALIDATED ORIGINAL CLAIM, FOLLOWING REFILING

If a reporting date to the placement office had been assigned upon the filing of an original claim which was subsequently invalidated, a failure to report on such date does not result in a disqualification if it has not been reassigned upon the filing of a later valid claim. (Similarly A.B. #49,872-55)

Referee’s Findings of Fact: A hearing was held at which claimant appeared and testified. A statement submitted on behalf of the Industrial Commissioner was considered. Claimant, classified as a clerk I, filed a valid original claim for benefits effective August 1, 1955. He was deemed to have refiled constructively effective October 10 at which time an initial determination was issued ruling him ineligible from October 7 to October 9 inclusive, for failure to comply with reporting requirements. Claimant tried to file for benefits on July 8. At that time, his claim was accepted as a matter of form in the first instance and he was instructed to report to the employment office the same day, which he did. The date to report to the employment office was entered in the appropriate column in claimant’s insurance book insert. At the employment office, claimant was given a next day to report there of October 7 and that date also was entered in the same column of his insurance book insert. On July 18 however, claimant’s claim was invalidated, with the result that his next filing of August 1 became his original valid claim. Claimant did not report to the employment office on October 7, a Friday. Previously, on Monday of that week, he reported, as required, to the insurance office. The reason for his failure to go to the employment office on October 7 was that the insurance office did not instruct him to go there when or after he filed his valid original claim on August 1 and in the absence of such instruction, the October 7 entry in his insurance book insert was meaningless to him.

Referee’s Opinion and Decision: This case is within the purview of the decision of the Appeal Board in its case 49,872-55. The Board there stated, in substance, that when a claim for benefits lapses, there falls with it the obligation of the claimant to comply with previous instructions to report to the employment office, although such reporting date occurs within a subsequent period when claimant is again deemed to be in benefits. The Board declared that under such circumstances

" * * * it was incumbent upon the local office to assign a new reporting date for him at the placement office in accordance with Regulation 42 of the Industrial Commissioner’s regulations. The requirement to report, based upon a prior claim for benefits, was not revived by such additional claim."

In the instant case, claimant was given October 7 as a date to report to the employment office when he was there on July 8 but his original claim effective July 8 was thereafter invalidated and he did not file a valid original claim until August 1. He was not assigned a reporting date to the employment office at any time commencing with August 1; nor was the reporting date of October 7 reassigned to him during the existence of his valid claim. Under the circumstances, claimant may not be deemed to have failed to have complied with reporting requirements. The initial determination is overruled. (November 29, 1955)

COMMENTS

This decision points to the fact that assigned reporting dates cannot be automatically transferred from one spell of registered unemployment into another without positive action having been taken in the form of reassigning the date.

The same principle would obviously also apply whenever two spells of registered unemployment initiated by other types of claims, are involved even though the question of "validity" is not in issue. Reassignment of previously established reporting dates is, therefore, indicated upon the filing of any "new claim, be it an original claim, following the end of a benefit year or the invalidation of an earlier original claim, or be it an additional claim.




A-750-1393
Index No. 1510-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 21, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION & CERTIFICATION
Misrepresentation – Unavailability

Appeal Board Case Number 52,905-55

MISREPRESENTATION – CONCEALMENT OF UNAVAILABILITY

Certifying to availability, on a day when claimant did not respond to a recall to work by the employer and was occupied in personal affairs, constituted wilful misrepresentation, when the supporting evidence shows an entry of the letter "N" instead of the letter "O" for the date when claimant was not available while for subsequent days of unavailability the booklet was so marked as not to claim benefit credits.

Referee’s Findings of Fact: A hearing was held at which claimant and a representative of the Industrial Commissioner appeared and testified. Claimant, a sewing-machine operator, filed for benefits effective June 27, 1955, and August 29, 1955. By an initial determination she was declared ineligible from July 13 through July 17 for unavailability for employment. She was disqualified effective August 29 for 42 days for voluntarily leaving her employment without good cause and, finally, her future benefit rights were reduced by 20 effective days for wilfully misrepresenting to obtain benefits. Claimant marked her booklet with the letter "Y" for July 14 and 15 and certified that she worked those days in her usual occupation. Actually, claimant did not work those days but was occupied painting her house. Claimant did not wish to claim benefits for those days as she was not available for employment, and used the letter "Y" for that purpose. Claimant now realizes that the letter "O" would have been the more correct designation. The job painting claimant’s three-room apartment took more than the two days, July 14 and 15. Actually, she was thus engaged from July 13 through July 17. Claimant was disqualified effective August 29 for voluntary leaving her employment without good cause because she insisted on taking a vacation from August 6 to August 29. The employer told her that if she did not work she would be terminated but claimant took her vacation nevertheless.

Referee’s Opinion and Decision: Claimant was unavailable for employment from July 13 through July 17 because she was occupied with painting her apartment and was not ready, willing and able to work in her usual occupation. Claimant did not wilfully misrepresent. She inserted the wrong letter by mistake in her booklet, but that does not constitute a wilful misrepresentation to obtain benefits. (Matter of Davis, 283 App. Div. 908, affirming Appeal Board, 38,790-53.) Claimant voluntarily left her employment without good cause. She was told that if she took a vacation she would lose her job. Claimant’s unemployment therefore was due to her own fault. The initial determinations of unavailability and voluntary leaving of employment are sustained. The initial determination that she wilfully misrepresented to obtain benefits is overruled.

Appealed By: Industrial Commissioner

Appeal Board Decision: After 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 was recalled by the employer to commence work on July 13, 1955. She did not return to work on that day because she was busy painting her apartment. We further find that claimant marked her reporting booklet with the letter "N" for July 13 and subsequently certified at the local office that she was ready, willing and able to work on July 13. 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 stated above. In view of our above findings we hold that claimant was properly charged with a wilful misrepresentation to obtain benefits, inasmuch as she certified at the local office that she was ready, willing and able to work on July 13. The local office is entitled to such facts as will enable it to make a proper determination of eligibility for benefits. It is significant that claimant did not attempt to obtain benefits for July 14 and July 15, days on which she was likewise engaged in painting her apartment. It is further noted that the reporting booklet specifies that the letter "O" be used on those days when a claimant is not willing to work. The initial determination of the local office holding claimant ineligible to receive benefits effective July 13 through July 16, 1955 on the ground of unavailability for employment, disqualifying her from receiving benefits for 42 consecutive days effective August 29, 1955 for voluntary leaving of employment without good cause and holding that she wilfully made a false statement for the purpose of obtaining benefits resulting in a forfeit penalty of 20 effective days being imposed are sustained. The decision of the referee is modified accordingly and, as so modified is affirmed. (December 2, 1955)

COMMENTS

This case points to the need of inspecting the identification booklet to ascertain whether a claimant has followed instructions with respect to entering the letter "O" for days of unavailability and to indicate non-compliance as supporting evidence of wilful misrepresentation determinations.




A-750-1394
Index No. 1255-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 21, 1955

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

Appeal Board Case Number 52,597-55

REFUSAL; WEIGHING CHOICE OF TWO REFERRALS

Referral by the Employment Service to two employers at the same time does not give a claimant the choice of refusing suitable employment offered by the employer who interviewed him first, and the claimant is properly disqualified for such refusal even though there was a possibility of obtaining better terms from the other employer.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective July 28, 1955 on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience is overruled.

Appealed By: Industrial Commissioner

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

Claimant, a Secretary II, filed for benefits effective July 11, 1955. An initial determination was issued disqualifying her as of July 28 for refusal of employment without good cause. On July 28 the employment office referred claimant to two employers for work in her classification, one of the employers being located on Seventh Avenue near 31st Street, Manhattan, the other on Ninth Avenue near 35th Street, Manhattan. Claimant went to the first-mentioned employer, who was willing to pay her $75 a week to start. Claimant was told her working hours would be 8:30 a.m. to 5 p.m., five days a week, with some Saturday work every fourth or fifth week, and that she would be required to hand out work to several other girls in the office. Claimant disliked the terms of the job, particularly the starting hour, since in her past employment her workday had never begun prior to 9 a.m. She also was averse to working on Saturdays and to what she assumed would be exercising some degree of supervision over the other girls in the office. Because she had the other referral to go to and hoped the conditions of that job would be more favorable, she did not accept the employer’s offer of employment. She then went to the other employer, where she was told there was an opening at $75, and applied for the job. She was told the employer would let the employment office know. The job had a 9 a.m. starting hour. The employer subsequently informed the employment office that it had hired someone else. On August 17 the employment office referred claimant to another position at $65 a week. And claimant started to work for that employer on August 22.

We make the following additional findings of fact: Claimant had been instructed by the employment service to report for interview to the prospective employer located on Ninth Avenue before reporting for interview to the prospective employer located on Seventh Avenue, but she ignored such instruction and reported first to the Seventh Avenue employer. Claimant also ignored an instruction given her by the employment service to communicate with it by telephone after the conclusion of her interview with the employer located on Ninth Avenue. The referee overruled the initial determination of the local office, from which decision the Industrial Commissioner appealed to the Board.

Appeal Board Opinion: The referee overruled the initial determination of refusal of employment without good cause on the theory that the employment service had given claimant the choice of either of two jobs and that she was justified in refusing one of them, which met the statutory standards, inasmuch as she was unaware at the time that the second employer might be unwilling to hire her. We do not agree with the result reached by the referee.

That claimant was given two referrals to employment at one time by the employment service is no indication that it intended that claimant, without subjecting herself to a disqualification by reason thereof, could refuse employment for which she was reasonably fitted by training and experience and which in all other respects met the statutory requirements, when it was offered to her by the employer here involved. Nor does the statute provide that claimant may avoid a disqualification from receiving benefits for her refusal of such employment on the possibility that she might thereafter obtain other employment on more advantageous terms. That claimant had no knowledge at the time in issue that the prospective employer, not here involved, might be unwilling to hire her is not pertinent. It is clear that the employment service gave claimant two referrals to employment at one time merely to make is unnecessary for her to seek a second referral in the event that one referral did not result in her obtaining employment. The employment service did not, and could not under the statute, give claimant the choice of refusing one of the jobs on the mere chance that she might obtain the other. Inasmuch as claimant did not have the choice of refusing either one of the employments, her refusal of the employment in question subjected her to a disqualification from receiving benefits by reason thereof. Claimant might have avoided such disqualification if she had not ignored the various instructions given her by the employment service. Since the employment refused by claimant was in her usual occupation and the salary, hours and other conditions of employment were not substantially less favorable to her than those prevailing for similar work in the locality, it must be deemed that claimant refused employment without good cause within the meaning of the Unemployment Insurance Law.

Appeal Board Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective July 28, 1955 on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience is sustained. Said disqualification was terminated by claimant’s bona fide employment commencing August 22, 1955.

The decision of the referee is reversed. (December 2, 1955)




A-750-1396
Index No. 1185-11
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 3, 1956

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Violation of Company Rules

Appeal Board Case Number 52,637-55

MISCONDUCT, QUESTION OF – NO APPRECIABLE MONETARY LOSS TO EMPLOYER

Violation of an established company rule for safeguarding employer’s interests (insurance agents falsely certifying to having witnessed applicant’s signature), constitutes misconduct, even though no appreciable monetary loss resulted.

Referee’s Decision: The initial determinations of the local office suspending the accumulation of benefit rights by claimant for seven consecutive weeks effective May 14, 1955 on the ground that he lost his employment through misconduct in connection with his employment and charging him with overpayments of $90 in benefits by reason thereof is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant worked from 1940 to May 13, 1955 as an agent for a life insurance company. His duties consisted of servicing and selling life insurance policies and collecting premiums from policy holders. It was an established company rule that applicants for non-medical life insurance fill out the answers in the application forms concerning the applicant’s past and present occupations, illnesses and health conditions in the presence of the agent and that the agent also witness the applicant’s signature to the application. The purpose of the rule was to make it possible for the agent to detect risks not acceptable to the company and also to make sure that the application was signed by the insured in order to protect the company’s interests. Claimant had knowledge of this company rule. On February 18, 1955, at 6 p.m., claimant called at the home of a prospective applicant for a $1,000 life insurance policy, the premium to be paid in monthly installments. The applicant was not home at that time. After waiting about one hour, claimant left the applicant’s home. Claimant called at the applicant’s home later in the evening but the latter still was not in. In order to expedite matters, claimant then left the application form with the applicant’s mother. He called at the applicant’s home the following morning and received from the applicant’s mother the completed application form bearing the applicant’s signature. Claimant falsely certified to the company that the applicant signed this signature to the application in claimant’s presence. The company accepted the application turned in by claimant and an insurance policy was processed and issued to the applicant. The company later cancelled the policy because it was not regarded as a bona fide contract in that the application was not completed in the presence of the agent and the agent did not witness the applicant’s signature. The only monetary loss sustained by the company was the incidental cost in connection with the processing of the policy. After an investigation, the employer discharged claimant effective May 13, 1955 because he violated company rules. Claimant filed a claim for benefits effective May 16, 1955 and registered for employment. On May 18, 1955 the employer notified the local office on the official form that claimant was discharged for "infraction of company rules." On May 26, 1955 claimant admitted at the local office that he committed an infraction of the company rule by submitting an application for insurance which was witnessed by the applicant’s mother but asserted that the main reason for claimant’s discharge was that his sales production was below par. On June 2, 1955 the local office issued an initial determination holding claimant eligible to receive benefits without disqualifying conditions and thereafter authorized the payment to him of $90 in benefits, which he received. The employer, after making the $10 deposit, interposed objections to the determination on the ground that claimant was discharged for misconduct. Based on additional information received from the employer the local office on July 11, 1955 issued initial determinations suspending the accumulation of claimant’s benefit rights for seven consecutive weeks effective May 14, 1955 on the ground claimant lost his employment through misconduct in connection with his employment and charging him with an overpayment of $90 in benefits. The employer’s deposit was returned to it. The theory of the misconduct determination was that claimant falsely certified to the witnessing of a signature on an insurance application. Claimant contested the initial determination and requested a hearing. The referee overruled the initial determinations of misconduct and overpayment in benefits and the Industrial Commissioner and the employer, after making the $25 statutory deposit, appealed therefrom to the Board.

Appeal Board Opinion and Decision: The referee overruled the initial determination effective May 14, 1955 on the theory that although claimant did not follow prescribed procedures for taking applications for insurance, he had seen the policy holder before and had observed that he was free from physical impairment and there is no evidence that claimant’s conduct resulted in any injury to the company. We are not in accord with the referee’s conclusion. Claimant was discharged by the employer because he violated an established company rule concerning the conduct of its agents with respect to the issuance of non-medical life insurance policies. The purpose of the rule was to safeguard the employer’s interests against bad risks. The fact that there was no appreciable monetary loss to the employer in the instant case does not aid claimant. In falsifying his certification as to the genuineness of the applicant’s signature to the application, claimant had acted in disregard of his obligation to the employer under the contract of hire. We hold that under all the circumstances claimant’s acts were detrimental to an in deliberate disregard of the employer’s interests and constituted misconduct with the meaning of the Unemployment Insurance Law. Since claimant failed to disclose to the local office pertinent facts which could have affected the initial determination as to his filing of a valid original claim, we hold that the benefits claimant received are recoverable. The initial determination of the local office dated July 11, 1955 suspending the accumulation of benefit rights by claimant for seven consecutive weeks effective May 14, 1955 on the ground that he lost his employment through misconduct in connection with his employment and charging claimant with an overpayment of $90 in benefits are sustained. The benefits paid to claimant are recoverable. The appeal deposit of $25 is to be returned to the employer. The decision of the referee is reversed. (12/9/55)




A-750-1397
Index No. 1750-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 16, 1956

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Other Personal Affairs

Appeal Board Case Number UCFE-48-55

VOLUNTARY LEAVING – NON-COMPELLING REASONS

Voluntary leaving of employment by a seaman upon the denial of his request for a leave of absence for one voyage to complete the sale of a business which he owned is without good cause since such leaving was motivated by personal considerations, rather than compelling necessity.

Referee’s Findings of Fact: A hearing was held at which claimant appeared and testified. A statement was submitted on behalf of the Industrial Commissioner in lieu of an appearance. Effective June 20, 1955, claimant, a seaman, filed a claim for Federal employee benefits. By initial determination effective June 20 he was disqualified for 42 days for voluntary leaving of employment without good cause. The disqualification was terminated by intervening employment on June 29. Claimant was employed by the Military Sea Transportation Service from August 1953, until June 15, 1955. He left the job because his request for a leave of absence was denied. He wanted to remain at home for the period of one voyage because he had an appointment on June 22 for the sale of a store which he owned, and which was being operated at a loss by other members of his family. The contract for the sale of the business was executed on June 22 and the bill of sale was executed on June 5. On June 23 or 24 claimant applied for reinstatement with the Military Sea Transportation Service, but was told to file a new application for employment, which he has done. He obtained a temporary job on June 29.

Referee’s Opinion and Decision: The credible evidence establishes that claimant had good cause to leave the job in question. He tried to protect his job by asking for a leave of absence but his request was denied. Upon these circumstances he had no alternative but to leave his job in order to be able to dispose of the store which was being operated at a loss. His actions were in no way arbitrary or unreasonable. The initial determination is overruled.

Appealed By: Industrial Commissioner

Appeal Board 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. The Board is of the opinion that the referee made proper findings of fact in this case. We do not agree however with the referee’s conclusion that claimant left his employment with good cause. Claimant’s leaving of his employment was motivated by personal consideration, rather than compelling necessity, which do not constitute good cause within the meaning of the Law. (Appeal Board, 34,894-52). The revised initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective June 20, 1955 on the ground that he voluntarily left his employment without good cause, is sustained. The decision of the referee is reversed. (December 22, 1955)




A-750-1399
Index No. 735B.5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 23, 1956

INTERPRETATION SERVICE- BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Claims filed from without the State Removal of Residence

Appellate Division Decision Matter of Dunn

Appeal Board case Number 42,559-54

AVAILABILITY-TEMPORARY RESIDENCE IN A RESORT AREA

Where a claimant leaves the State of New York and goes to Florida for the winter months, the submission of convincing evidence of availability for employment may be required in order to sustain a claim for benefits.

Referee's Findings of Fact: Hearings were held in Florida and New York at which claimant and a representative of the Industrial Commissioner respectively appeared and testified. Claimant, a timekeeper, filed effective October 21, 1952, at Miami, Florida. By initial determination, effective December 1, she was ruled ineligible because of unavailability for employment. By initial determination, her benefits were ruled forfeited for 24 effective days because of wilful false statements made to obtain benefits. For six winters, claimant's husband has worked in Florida. Claimant left her New York position on October 26, to accompany him. Claimant's husband had been negotiating for a distributorship in Florida, and thought he had obtained one, but it did not materialize. He started work as a salesman in January. On November 13, claimant wrote that the reason for her coming to Florida was, "to join my husband who obtained employment in Miami." During the period in issue, until January 6, claimant sought work at about one establishment a week, and also answered want-ads. However, beginning January 6, claimant intensified her efforts, and eventually secured a position with her husband's business.

Referee's Opinion and Decision: A claimant who comes into a strange labor market area is expected to make diligent efforts to seek employment. From December 1, through January 5, claimant failed to make such efforts, but made mere token efforts. She was unavailable during that time. However, effective January 6, claimant made more diligent efforts, and eventually secured work. She became available on that date. It is clear that claimant left New York because her husband was going to be occupied in Florida. While he was not actually a party to an employer-employee relationship on November 13, at the time claimant made the allegedly false statement, he was actually engaged negotiating for business opportunities. It does not clearly appear that claimant's statement on November 13 was a wilful misrepresentation. The initial determination of unavailability is modified to be effective from December 1, through January 5, and as modified is sustained. The initial determination of wilful misrepresentation is overruled.

Appealed By: Claimant

Appeal Board Decision: A decision in the above matter having been rendered on May 22, 1953 by a member of this Board affirming the decision of the referee dated March 12, 1953, sustaining the initial determination of the Out-of-State Resident Office holding claimant, a switchboard operator, ineligible to receive benefits effective December 1, 1952 on the ground that she was unavailable for employment, as modified by the referee to be effective December 1, 1952 through January 5, 1953, and such decision having been filed in the Department of Labor on May 28, 1953, (Appeal Board, 37,060-53) and the claimant having made application to the Board requesting a reconsideration and reopening of its decision, and the Board pursuant to the provisions of the Labor Law, having determined to hold a hearing for the purpose of considering such application, and a hearing having been duly held before this Board on February 16, 1954 upon due notice to all parties herein, and additional testimony having been offered on behalf of the claimant, and after due deliberation having been had on the claimant's application to reconsider and reopen the Board's decision as aforesaid, and it appearing to the Board that the claimant has failed to support her contention that she was available for employment during the period in question,

Now, therefore, based on all of the foregoing, it is

ORDERED that the claimant's application to reconsider and reopen the decision of the Board dated May 22, 1953 be and the same hereby is granted and upon such reconsideration the original disposition set forth in the decision of a member of this Board, is adhered to.

Appellate Division Decision: Appeal by claimant from a decision of the Unemployment Insurance Appeal Board which disqualified claimant for benefits from December 1, 1952 through January 5, 1953 because of unavailability. In order to join her husband who expected to obtain permanent employment in Florida where for several years he had spent the winter months, claimant voluntarily left her employment as switchboard operator in Rochester on October 21., 1952. Claimant's husband did not accept possible employment in Jacksonville but continued on to Miami where he expected work with a former employer. This did not materialize and he did not become employed until about January 23, 1953 when he worked as a commission salesman. Claimant solicited orders for him and he paid her from his drawing account.They returned to Rochester at the end of March 1953 and claimant returned to her former employment. Claimant contends that as soon as she arrived in Florida she sought work, that she answered ads, visited employment agencies and went to practical every hotel, but was unsuccessful. But in certifying her claim for benefits in Florida, she listed only one personal contact for employment for the weeks ending December 8th and 15th and two personal contacts for the weeks ending December 22nd and 29th. Section 591 of the Unemployment Insurance Law, entitled "Eligibility for benefits" provides, in part:

"2. Availability and capability. No benefits shall be payable to any claimant Who is not capable of work or who is not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience."

Whether a person is available for employment during a specific period is a question of fact to be determined by the Referee and the Appeal Board. Here there is a finding that claimant was unavailable from December 1, 1952 through January 5, 1953. The evidence sustains this finding. It seems to us that where, as here, a claimant leaves the State of New York and goes to Florida for the winter months the Board may require that convincing evidence of availability for employment be submitted in order to sustain a claim for benefits. The question of availability has been resolved against the claimant and since the record sustains this finding, it must be affirmed. (December 27, 1955)

COMMENTS

The "rule" which prefaces this report paraphrases the significant sentence of the Court's decision. It is significant because the Court sanctions the principle that under circumstances such as those presented in this case, it is proper to require a claimant to "submit" convincing evidence of availability before benefits can be paid.