A-750-1501
Index No. 730.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 16,1959

INTERPRETATION SERVICE- BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY

Appeal Board Case No. 67-211-58 et al

AVAILABILITY OF NATIONAL GUARD MEMBER WHILE ON TRAINING DUTY

A member of the National Guard is not available for employment during his annual active duty for field training at a military camp for a period such as two weeks, regardless of whether release from such duty to accept employment is permitted and obtainable.

Referee's Decision: The referee overruled the separate initial determinations of the respective local offices holding each claimant ineligible to receive benefits effective for varying periods in each case from August 14 through August 31, 1956, on the ground that he was not available for employment.

Appealed By: Industrial Commissioner

Findings of Fact: Claimants, factory workers, are members of various units of the New York National Guard. During the periods in issue they attended at summer camp and participated in the required field training. They were at all times subject to military discipline and were not permitted to be absent from their assigned places of duty without first obtaining official permission, which may be granted or denied as a matter of discretion. Claimants could not Look for work during the periods in issue, but might have been excused from further training had employment been offered to them. It is the policy of the National Guard to permit such releases from further training in the individual case, provided that no detriment to the training program is expected to result on account thereof. Applications to be excused require the approval of various unit commanders within the military establishment, any one of whom may deny the request.

Claimants received payments of cash based upon rank and grade in addition to board and lodging in return for the time and effort spent in training. Deductions from cash payments were made for Federal income and Social Security taxes. Claimant CJS. received a gross cash total of $62, prior to deductions, during the training period.

Appeal Board Opinion and Decision: We do not agree with the referee's conclusion, that claimants were available for employment, which was based on the premise that they would have been released from military training had employment been offered to them, according to statements from their, respective company commanders. The evidence shows that approval of the battalion commander, as well, was required, and in some cases even that of the Division commander. Since approval was more than a mere formality, resting within the sound discretion of the commander concerned, it is idle to speculate as to what the decision would have been in any particular case if a job had been offered to a guardsman applying for release from further training.

There is, however, a more serious and fundamental objection to the referee's decision, which erroneously assumes that availability for employment exists merely because a claimant is willing to work.

Prior to 1953, there was no statutory definition of availability for employment. What constituted availability was decisional law on an ad hoc case by case basis. By Laws of 1953, Ch. 720, effective May 4, 1953, Section 591.2 of the Unemployment Insurance Law was enacted. This Section reads as follows:

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. (Underscoring supplied. )

Conceding that claimants were willing and able to work, there is no doubt that they were not ready to work during their period of military training. The Law requires readiness to work, not only in the event a job is offered, but at all reasonable times. Claimants' military training precluded them from being ready at all times; the availability requirement was not satisfied merely because there was a possibility that they might be available on specified occasions when jobs might be offered to them. Since claimants were at the summer camp for the purpose of military training, rather than to look for work, they were withdrawn from the labor market, no matter how praiseworthy or compelling their motives. Besides, the requirement that a claimant be available for work includes the obligation to make an independent search, the extent of which will vary with circumstances; it is not sufficient merely to wait until employment is offered. Claimants did not, indeed they could not, make an independent search for work during the period in issue. The foregoing makes it clear that the cases cited in the Industrial Commissioner's brief (Appeal Board #2387-40, #19,077-49 and #21,025-49), insofar as they are based on the assumption that claimants engaged in active military duty are available during such period if their releases may be effected tor the purpose or accepting an offer of employment, are erroneous in principle.

The basic precedent was established in Appeal Board, 2387-40 prior to any statutory definition of availability. There, the Board found that an enlisted man in the National Guard was ordered to camp for a two-week training period for which he received maintenance and one dollar per day for incidental expenses and that the established policy of the National Guard was to release men promptly in all cases where an offer of employment was made to an enlisted man unemployed at the time of entering training duties in camp. On those facts, mindful of the then precedents which did not require an active search for work. the Board found such claimant available.

Appeal Board, 52,319-55 was decided after the enactment of Section 591.2 of the Law and after numerous Board decisions requiring independent search for work in many cases as an overt act to establish availability. There the Board held that:

* * * The claimant in the instant case is an officer. His release from active duty was not established to exist as a matter of right, pursuant to a predetermined policy prescribed for the benefit of unemployed officers constituting the officers corps of which claimant was a member. Whether or not claimant would have been able to effectuate his release from active duty was dependent upon the approval first obtained from his commanding officer, whose decision, as to whether an interview for possible job placement constituted a valid and sufficient reason to relieve claimant from the obligations of his orders, admittedly was a matter resting solely within the commanding officer's discretion. Under such circumstances, the availability of claimant for a timely interview, in the event a job referral were offered to him, becomes highly speculative, since his application for a release from duty was subject to the judgment of the person upon whose discretion he was compelled to rely for a decision, and also to the possible contingency of delay. This lack of a definite assurance of either an immediate release or ultimate favorable action on his application makes the question of claimant's availability at the time in issue highly doubtful. (underscoring supplied )

* * *

We can perceive no factual distinction between the instant case and Appeal Board, 52,319-55. Since claimant's release for employment herein depended on the discretion of not only the commanding officer but in some instances on that of the battalion commander and regimental commander, there is no definite assurance of either immediate release or ultimate favorable action. Claimants must be ruled unavailable to the extent that the cases cited may be in conflict with this opinion, they are hereby overruled.

Although there is no initial determination to that effect and although the Industrial Commissioner's supplemental memorandum on appeal urges, for reasons of policy, that claimants be found to be unavailable for employment, rather than not totally unemployed, there is grave doubt whether they were in fact totally unemployed. They received substantial payments in return for the services which they performed. They were treated, both by National Guard and Federal government authorities, for whose account taxes were deducted from their earnings, in a similar fashion, as employees. Absent the fact that such moneys were derived from military service, there is no doubt that an initial determination of lack of total unemployment would ordinarily issue. Decision on such question would appear to be unnecessary, however, since claimants, by initial determinations of the local offices were properly found to be not available for employment. (See Appeal Board, 52,319-55 wherein the Board found lack of total unemployment in similar circumstances).

The several initial determinations of the respective local offices holding each claimant ineligible to receive benefits effective for varying periods in each case, from August 14 through August 31, 1958, on the ground that he was not available for employment, are sustained. The decision of the referee is reversed. (May 4, 1959)

COMMENTS

  1. Cases of this kind should be handled exclusively on the issue of availability and as set forth in the release on "Reservists on Active Duty" (A-710-36).
  2. The principle is not limited to members of the National Guard but applies also to members of other Reserve components.
  3. Release A-750-851; is now obsolete and should be so marked. It will be deleted from the Service at the time of the next revision.



A-750-1503
Index 1580B-3
STATE OF NEW YORK DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 29, 1959

INTERPRETATION SERVICES- BENEFIT CLAIMS
MISREPRESENATIONS AND RECOVERY
OF OVERPAYMENTS

Appeal Board Case Number 68,774-59

Misrepresentation as to Employment in Two Weeks at Same Interview

Falsely certifying at one interview to total unemployment during two statutory weeks constitutes a single offense.

Referee's Findings of Fact:: A hearing was held at which claimant and representatives of the Industrial Commissioner and of the employer appeared and testified. Claimant, a taxi driver, filed for benefits effective December 15, 1958, and refiled effective February 16, 1959. By initial determination effective December 6, 1958, he was disqualified for 42 consecutive calendar days for voluntary leaving of employment without good cause. Effective December 22, 1958 through February 15, 1959, he was ruled ineligible for failure to comply with reporting requirements. By initial determination amended at the hearing, effective February 21, 28 and March 1, he was ruled ineligible for lack of total unemployment on those days. His benefits were ruled to be forfeited for 40 effective days because of a willful false statement to obtain benefits. Claimant was employed as a taxi driver for about three or four months to December 5,1958, on a commission basis. He resigned because he did not believe he was getting sufficient work. He was required to shape up daily and he was given work whenever there was a taxi available. He could have remained at his job had he so desired. He had no immediate and definite prospect of employment elsewhere at the time he left. Claimant reported to the lnsurance office on December 16 and filed an original claim for benefits. At that time he was informed by a representative of the insurance office that he did not have sufficient weeks of employment during his base period to qualify for unemployment insurance. On December 29 a notice of determination was mailed to him advising him of his nonentitlement to benefits because of lack of sufficient weeks of employment in his base period. This notice informed him that he was to continue to report to the insurance office as directed in the event he disagrees with the initial determination. Claimant did not report to the insurance office thereafter until February 16, at which time he established his entitlement to benefits. He was not misled or misdirected by any representative of the insurance office. Claimant worked on February 21 during the statutory week ending February 22. During the statutory week ending March 1 he worked on February 28 and March 1, earning approximately $21.30. He reported to the insurance office on March 3 and on that date certified that he was totally unemployed during the statutory week ending February 22 and March 1. The insert to his insurance booklet was marked with letter "N" for the days on which he worked. He made one certification on March 3 for the two statutory weeks ending February 22 and March 1. The initial determination of wilful misrepresentation is based upon the falsity of this certification.

Referee's Opinion and Decision: Claimant advanced no meritorious reason for leaving his job on December 5. Although he was not getting steady work, he was permitted to work when there was a cab available for him. The Unemployment Insurance Law makes no distinction between part-time and full-time employment. Since he had no immediate prospect of employment elsewhere at the time he left, he was correctly disqualified for voluntary leaving of employment without good cause under the law. Claimant advanced no meritorious reason for not reporting to the insurance office between December 22 and February 15. The notice of initial determination which was mailed to him advised him to continue to report as directed wile he was attempting to establish the validity of his claim. His failure to report to the insurance office as required during the period in issue was due to his negligence. Accordingly, he was correctly ruled ineligible for failure to comply with reporting requirements during the period. Since claimant conceded he worked on February 21, 28 and March 1, he was correctly ruled ineligible for lack of total unemployment on those days. I reject his contention that he erroneously reported total unemployment on those days because of a "mistake". The credible evidence establishes that he knowingly made a false statement for the purpose of obtaining benefits. I reject the contention of the Industrial Commissioner's representative that claimant's wilful misrepresentation must be treated as two separate false statements, since he certified incorrectly to two weeks of unemployment. Claimant made one false statement and his benefits should be forfeited on the basis of one false certification and not of two certifications. The initial determinations of voluntary leaving of employment and of failure to comply with reporting requirements are sustained. The initial determination of lack of total unemployment, as amended is sustained. The initial determination of wilful misrepresentation is modified to the extent that the forfeiture is reduced from 40 to 20 effective days, and as modified is sustained. (April 2, 1959).

Appeal Board Opinion and Decision: These are cross appeals from the decision of the referee filed April 2, 1959. The Industrial Commissioner appeals from the said decision insofar as it modifies the initial determination of the local office holding that claimant, a taxi driver, wilfully made false statements to obtain benefits by reason of which a forfeiture of 40 effective days was imposed as a penalty in reduction of claimant's future benefit rights, by reducing the number of effective days to be forfeited as a penalty from 40 to 20. The claimant appeals from said decision insofar as it sustains the initial determinations of the local office (1) holding claimant ineligible to receive benefits effective December 22, 1958 through February 15, 1959, on the ground that he failed to comply with reporting requirements, (2) disqualifying claimant from receiving benefits for 42 consecutive calendar days effective December 6, 1958 on the ground that he voluntarily left his employment without good cause and (3) holding that claimant wilfully made false statements to obtain benefits, by reason of which a forfeiture of 40 effective days was imposed as a penalty in reduction of claimant's future benefit rights, as modified by the referee to reduce the number of effective days to be forfeited as a penalty from 40 to 20 days, on the ground that claimant's wilful misrepresentation to obtain benefits was a single offense. A hearing was held before the referee at which all parties appeared and were accorded a full opportunity to be heard. The Board considered the brief submitted on behalf of the Industrial Commissioner and the written statement submitted by claimant on appeal. After a review of the record including testimony and evidence adduced before the referee and deliberation having been had thereon, and having found that the referee's findings of fact and conclusions of law are fully supported by the record 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 the Board. The Board is of the opinion that the referee made proper findings of fact and correctly determined the issues involved in this case. The decision of the referee is affirmed. (May 29, 1959).




A-750-1505
Index No. 1460A-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 20, 1959

INTERPRETATION SERVICE-BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without Work
Vacation Period

Appeal Board Case Number 68,256-59

Verbal Designation of Vacation Period

A specific agreement between the employer and an employee on the time for vacation although not in writing, satisfies one of the conditions of Section 591.3 so that there may be a "vacation period" during which a claimant is ineligible for benefits.

Appeal Board Decision: The Board affirmed the decision of the referee filed October 31,1958, overruling the initial determination of the local office holding claimant ineligible to receive benefits effective August 4 through August 17, 1958 on the ground that such interval, as to claimant, constituted a vacation period during which no benefits were payable to claimant pursuant to Section 591.3 of the Unemployment Insurance Law

Application to Reopen : By Industrial Commissioner

Findings of Fact: Claimant worked as a piece worker in the material sales department of a watch manufacturing firm for about 10 years. Soon after claimant was hired, she was advised that the employer granted annual vacations to its employees and that vacation pay would be paid in amounts depending upon seniority. The establishment was not unionized. In the two years preceding 1958, claimant took her vacation during the first two weeks of July and received vacation pay in accordance with the foregoing arrangements.

In June 1958, claimant's supervisor asked her to submit her preference for a vacation period. Shortly, thereafter, claimant advised her supervisor that she had selected the two weeks commencing August 4, 1958. Claimant had been working on an intermittent basis at this time and that fact, among other reasons, prompted claimant to advise her supervisor at that time that she preferred not to take any time off for vacation but preferred to continue working and to receive the :vacation monies due to her on the basis of her seniority. The employer refused to grant claimants request and insisted that she take her vacation during the two weeks previously designated.

In the week immediately preceding August 4th claimant worked the full week. She then went on vacation leave for the two designated weeks. She returned to work on August 18th and in the week ensuing she worked a full week. On August 1st, the last payday before the vacation period, she received her pay for the preceding week and received the sum of $171.48 designated as vacation pay. There was some discrepancy as to the exact amount of vacation pay and this error was later corrected but these facts have no bearing on the issue herein.

There was no collective bargaining agreement in existence at the establishment. There was no written contract of hire between the employer and claimant. The hiring and the arrangements and practices flowing therefrom were made orally. The employer did not designate in writing the claimant's two week vacation period.

Claimant refiled for benefits effective Monday, August 4, 1958, the first day of her vacation period. The local office issued an initial determination holding that claimant was ineligible to receive benefits beginning August 4, 1958 and ending August 17, 1958 on the ground that this was a "vacation period with pay." It was indicated on the initial determination that the basis therefor was that "during this period you were on a scheduled vacation paid by your employer and were substantially fully employed in the week before and in the week after the vacation." Claimant maintained at the local office and before the referee that her vacation money was an accrual as a result of her prior employment and had nothing to do with the abstention from work from August 4 through August 17. She further maintained that due to her lack of full employment in the five months preceding this vacation period she was en titled to receive benefits for the two week period.

Appeal Board Opinion and Decision: The referee overruled the initial determination on the ground that "One of the conditions enumerated in Section 591.3(f) had not been met, and that, therefore, the period at issue was not to be considered a "vacation period." That provision is as follows:

(f) The term "vacation period, " as used in this subdivision, means the time designated for vacation purposes in accordance with the collective bargaining agreement or the employment contract or by the employer and the claimant, his union, or his representative. If either the collective bargaining agreement or the employment contract is silent as to such time, or if there be no collective bargaining agreement or employment contract, then the time so designated in writing and announced to the employees in advance by the employer is to be considered such vacation period.

The referee reasoned that since there was no collective bargaining agreement, that the employment contract did not designate any time for vacation purposes and that the vacation period was not designated in writing and announced by the employer to the employees in general or to the claimant in particular, either in advance of the vacation period or at any time by the employer, the time taken by the claimant did not constitute a vacation period as defined by Section 591.3(f), and consequently claimant was entitled to benefits for the two week period.

The referee's interpretation of the provisions of Section 591.3 and particularly subdivision (f) thereof, nullifies the very purposes of this section of the Law as applied to this case. The essence of what is deemed to be a vacation period during which no benefits shall be payable to a claimant is found in Section 591.3(a) (1), (2) and (3) which reads as follows:

(a) A "vacation period" during which no benefits shall be payable to a claimant is a period

  1. during which a claimant has a temporary respite from work; and
  2. for which entire period such claimant is given a vacation payment or allowance by his employer directly even if such payment or allowance be deemed to be remuneration for prior services rendered as an accrued contractual right; and

  3. where such claimant is substantially fully employed by such employer both during the last work week before and the worst week immediately following such period.

The undisputed facts establish conclusively the application of the provisions above quoted. Claimant had a temporary respite from work. For this entire period, claimant was given vacation pay by her employer directly, even if the claimant regarded such payment as remuneration for prior services rendered as an accrued contractual right. Claimant was substantially fully employed by the employer both during the last work week before and the work week immediately following such period.

Section 591.3(f) encompasses a number of situations some of which do not apply to the facts, herein. Straining from such provision the language which is inapplicable on the facts herein, the pertinent words are:

The term "vacation period, " as used in this subdivision, means the time designated for vacation purposes… by the employer and the claimant….

The foregoing clear definition governs the situation here. Claimant's vacation period was the time designated for vacation purposes by the employer and the claimant. The employer asked claimant to designate her preferred vacation period. She selected the two weeks commencing August 4, 1958. Thus there was a mutual designation of time for vacation purposes by both employer and claimant, which resulted in a mutual agreement to that effect. Claimant' s subsequent request to withdraw her designation and for permission to work during the designated two weeks did not change the original designation and agreement between claimant and her employer particular]y since such request was denied by the employer.

Claimant has sought to negate the force and effect of Section 591.3 by urging that her vacation time was not so designated in writing. The referee accepted this contention and, on the theory that such omission made inapplicable the statutory definition of "vacation period, " he ruled claimant to be eligible for benefits during the precise period which had been mutually agreed upon as the time during which she would have a paid temporary respite from work.

We hold that such a construction and interpretation of the statute does violence to its intent and purpose. The statute is designed specifically to prevent the payment of unemployment insurance benefits during the period for which the employee receives vacation monies for the very purpose of refraining from work and obtaining a temporary respite therefrom.

Section 591.3 was added to the statute by Chapter 387 of the Laws of 1958 and became effective March 26, 1958. The enactment followed a long period of controversy on the subject of vacation pay. Thousands of disputes respecting eligibility during so-called vacation periods were adjudicated and since there was no statutory guide as to the policy of the State, the varying facts in each case produced different results. (See e.g Matter of Naylor 306 N.Y. 794 rev'g Appeal Board, 30,727-52; Matter of Chichipas 3 App. Div. 2d 880 aff'g UCV217-55 and Matter of Dresher, 286 App.Div.591 rev'g Appeal Board 47,603-54.) After considerable study and consultation with representatives of labor and management and the Unemployment Insurance Advisory Council, the Legislature enacted Section 591.3 to systematize and regulate the eligibility status of unemployment insurance applicants during so-called vacation periods and to reduce to a minimum the controversies on this subject.

We feel it would do violence to the purpose and intent of the Law as well as to the public policy of the State to construe the vacation period provisions of the Law in such manner as to justify the referee's decision. It is common knowledge that the vast majority of employing establishments throughout the State, especially the smaller ones, do not designate vacation periods in writing. Such arrangements are frequently made orally between supervisors and workers. Typical of these situations is the usual vacation arrangements for the vast majority of clerical and executive employees. Rarely is there a written formal designation of the annual vacation period. If the referee's construction of Section 591.3 of the Law were accepted such employees would be deemed to suffer "unemployment for which benefits are payable". It is obvious that the Legislature never contemplated such a result.

We interpret that part of Section 591.3(f) which requires a written designation to apply only in those instances where a contemplated plant shut down or a mass lay off for vacation purposes makes it reasonable to expect the employer to communicate that fact to the entire staff in writing in advance. We believe that the Legislature did not intend to create an escape hatch to allow payment of unemployment insurance benefits simultaneously with vacation pay in situations as in this case. We deem it sufficient that the vacation period herein was so designated by the employer and the claimant in advance and we further hold that the omission of the writing does not render the section ineffectual. We hold that claimant is not entitled to receive benefits for the period August 4 through August 17, 1958 on the ground that such interval constituted a paid vacation period and consequently she was not totally unemployed.

The application to reopen and reconsider the decision of Isidore Schechter, a member of the Board, dated January 7, 1959 (Appeal Board, 66,931-58) is hereby granted and the said decision is hereby rescinded. The initial determination of the local office is sustained. The decision of the referee is reversed. (August 5, 1959)




A-750-1506
Index No 1610-5
NEW YORK STATE DEPARTMENT LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 2, 1959

Interpretation Service- Benefit Claims
Voluntary Leaving of Employment
Misconduct cases

Appeal Board Case Number 69,737-59

REVOCATION OF LICENSE PRIVATE AUTOMOOBILE

Discharge from employment requiring the operation of a motor vehicle, because claimant's drivers license was revoked, is considered a voluntary leaving of employment without good cause when the claimant should have known that his action (speeding) could result in such revocation of license, even though he committed the offense while operating his own automobile in personal business

Referee's Decision: The referee overruled the initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days effective March 4, 1959 on the ground that he voluntarily left his employment without good cause by provoking his discharge.

Appealed by : Industrial Commissioner

Findings of Fact: Claimant, a truck driver and auto-parts clerk, filed a claim for benefits effective March 9, 1959. Claimant was primarily employed as a chauffeur and was discharged by his employer on March 3, 1959 because claimants license to operate a motor vehicle had been revoked. After claimant had been convicted of several traffic violations, he was warned by the Motor Vehicle Bureau that further infraction of the Motor Vehicle Law might result in a revocation of his license. Nevertheless, claimant thereafter operated his own automobile while engaged in personal business at a rate of speed in excess of that permitted by law. As a result, he was convicted of that offense and his license was revoked.

By initial determination effective March 4, 1959, claimant was disqualified from receiving benefits for 42 days for voluntarily leaving his employment without good cause in that he provoked his discharge. At the time of claimant's discharge his employer had no work for him other than chauffeur.

Appeal Board Opinion and Decision: We do not agree with the conclusion of the referee that the termination of claimant's employment was not equivalent to a voluntary leaving of employment without good cause.

The referee relied upon Appeal Board, 59,224-57 wherein a claimant lost his license to operate a motor vehicle as a result of a violation of the Motor vehicle law while not on employer's business. In that case the Board did not pass upon the question as to whether or not such conduct was a provoked discharge, but found that claimant was unavailable for employment during the period at issue.

Here, the proximate cause of claimant's discharge was the loss of his license due to an unlawful and improper operation of a motor vehicle. The claimant had been warned by the authorities that further infraction of the Motor Vehicle law might result in a revocation of his license. Nevertheless, claimant thereafter operated a motor vehicle at an excessive rate of' speed, was convicted and his license was revoked. Claimant was fully aware that his employment was dependent upon his right; to operate a motor vehicle and his action, despite the warning, was a deliberate act of commission with foreseeable consequences. Claimant knew or should have known that as a condition for the retention of his job, it was incumbent. upon him to retain his license to operate a motor vehicle. He knew or should have known that the operation of his motor vehicle at an unlawful rate of speed was likely to result in the loss of his license and would thus produce his failure to comply with a reasonable condition of his employment.

Claimant must be deemed to have voluntarily left his employment without good cause. (Matter of Malaspina, 309, NY 413, revg. Appeal Board, 42,606-54)

The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days on the ground that he voluntarily left his employment without good cause is sustained. The decision of the referee is reversed. (August 10, 1959)




A-750-1507
Index No. 1207B-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 10, 1959

Interpretation Service-Benefit claims
Refusal of Employment
Wages-prevailing

MATTER of MATUEVICH (15 AD 2nd 387)

Appeal Board Case Number UCFE-284-58

REFUSAL - WAGES: SIMILAR OCCUPATIONS - DIFFERENT INDUSTRIES

Refusal or otherwise suitable employment as a pipe coverer at a shipyard is without good cause when the offered wages are those which prevail for such occupation in the marine industry even though the prevailing wages for pipe coverer in the building and construction industry are substantially higher and even though the occupational code classification is the same for pipe coverer in both these industries, when it can be found as a fact, that the work of a pipe coverer in the marine industry is different from that in the building and construction industry

Referee Decision: The referee sustained the initial determination of local office disqualifying claimant from receiving benefits effective May 28, 1958, on the ground that claimant, without good cause refused employment for which he is reasonably fitted by training and experience as modified by the referee to make same effective June 2, 1959.

Appealed by: Claimant

Findings of Fact: Claimant a pipe coverer, refiled for benefits effective April 2, 1958, and registered for Employment. By an initial determination he was disqualified from receiving benefits effective May 28, 1958 on the ground that without good cause he refused employment for which he reasonably fitted by training and experience. He was charged with an overpayment of benefits in the sum of $45 for the statutory week ending June 1, 1958. Claimant requested a hearing. The referee modified the initial determination by making the effective date of the disqualification June 2, 1958, having found that the refusal of employment occurred on that date rather than on May 28. The referee held accordingly that claimant was not overpaid. Claimant appealed to the Board from the adverse portion of the referee's decision.

Claimant is a fully qualified pipe coverer, having been employed in that occupation for at least 20 years. In that period claimant worked about 50 percent of the time in marine work at various shipyards and, during the balance of the time he worked in the building and construction industry. Claimant is not a member of any union. When he worked in the building and construction industry he worked under a permit card issued to non-members by the dominant union having jurisdiction over persons employed in the building and construction industry. During claimant's base period and from about December, 1956 to October, 1957, claimant was engaged in marine work at a shipyard operated by the United States government.

Although the duties of a pipe coverer in the marine industry are substantially similar to duties of a pipe coverer employed in the building and construction industry, the two are recognized as separate and distinct. Separate unions have jurisdiction over persons employed in the marine industry and those employed in the building and construction industry. Both industries are heavily unionized. The wage rates paid to persons working in the marine industry are established by the agreements between the operators of the shipyards and the union having jurisdiction over workers in the shipyards. The wages paid to persons employed in the building and construction industry are established by agreement between the dominant union in the building and construction industry and firms engaged in that industry.

The prevailing wage during the period in issue for persons employed as pipe coverers in the building and construction industry was $4.20 an hour. The prevailing wage during the period in issue for pipe coverers employed in the marine industry was no more than $2.75 an hour. Collective bargaining agreements fixed the terms and conditions of employment of marine pipe coverers employed at the various privately owned shipyards in the locality. The wages paid to pipe coverers employed at the shipyard owned and operated by the United States government although not fixed by the terms of any collective bargaining agreement, were within 10 per cent of. the wages paid to persons employed at the privately operated shipyards. During emergency periods, the operators of the various shipyards occasionally engaged contracting firms to perform pipe covering services at the shipyards. Pipe coverers employed by such contracting firms are usually paid a wage which is higher than the prevailing wage for the marine pipe coverer but lower than the prevailing wage of pipe coverers employed in the building and construction industry. Only a small minority of pipe coverers employed in the marine industry are employed by contracting firms. In the past, claimant has worked at times for such contracting firms and when he was assigned by them to marine work he received the wage usually paid to pipe coverers employed by such contracting firms.

Skilled pipe coverers employed at the government owned shipyards are paid $2.53 an hour at the start of employment and are advanced by successive steps to an ultimate wage of $2.75 an hour. The second step is $2.64 an hour and is usually paid after the worker has been in the employ of the government for six months. Based on the seniority which claimant had acquired as a result of his employment at the government owned shipyard during his base period, he became entitled to a wage of $2.64 an hour.

On May 28, 1958 claimant was referred to the government owned shipyard at which he was employed as aforesaid for re-employment as a pipe coverer. He accepted the referral and reported to the New York Naval Shipyard on May 28, but no offer of employment was then made. He was directed to return to the shipyard on Monday June 2. Claimant complied with such direction and when he returned on June 2, he was offered re-employment as a first class pipe coverer at the second wage step, namely, $2.64 an hour. Claimant refused the employment because he was denied the top rate of $2.75 an hour which he believed he merited. He subsequently maintained that he was justified in refusing any employment as pipe coverer at a wage less than the prevailing wage in the building and construction industry, namely $4.20 an hour.

Appeal Board Opinion and Decision: It is contended on behalf of claimant that the prevailing wage for the work refused by him was that which prevails in the building and construction industry and that consequently the wages offered to claimant were substantially less favorable to him than those prevailing for similar work in the locality. It is contended on behalf of the claimant that notwithstanding the conditions which actually exist in the marine industry, no legal recognition may be given to any difference between the marine industry and the building and construction industry. In effect, it is contended by the claimant that the referee's decision implies that there may be two prevailing wage rates for the identical work.

The contentions so advanced by the claimant lack validity. If the work of a pipe coverer in the marine industry constituted the same occupation as that performed by a pipe coverer in the building and construction industry, there might be merit to the contention advanced by claimant. However, recognition must be given to the facts that the industries are separate and distinct and, despite the similarity of the work performed by a pipe coverer in each of the industries, they are , in truth, separate occupations. This Board has been called upon previously to determine whether work in the marine industry was different work from that performed in the building and construction industry and in Appeal Board, 9,576-43 we answered the query by stating:

A building and construction electrician is employed in a distinct and well-recognized trade, namely, the building and construction trade. A marine electrician is employed in a different and separate trade, that is, the shipbuilding trade. The two industries are wholly independent of each other. It is true that many of the skills possessed by building and construction electricians may be utilized in jobs as marine electricians. However, this fact alone does not destroy the essential differences between the two occupations. Each occupation, for long past, has been and still is designated by the United States Employment Service under separate occupational code classifications to wit: for building and construction electricians the code is 4-97.010, while; for marine electricians, it is 4-97.210. The modes and methods of operation and the types of locale for the performance of the work in the building and construction field are different from those in the ship building field. Each trade has its own union. Each has a different union rate of pay, the difference being a very substantial one, seventy-five cents per hour greater for building and construction electricians. The difference between the two occupations is further revealed by the fact that two separate stabilization agreements were executed between the representatives of the United States Government, management and labor, one for building and construction defense projects and the other confined to exclusively to shipbuilding. We believe that when a building and construction electrician is referred to a job as a marine electrician, he is being referred to a job in a "different occupation" within the intendment of said procedure….

To the same effect see also Appeal Board 9,077-43.

From the foregoing it is apparent that the work offered to claimant in the marine industry must be deemed to be different work from that performed in the building and construction industry. We are not unmindful that unlike the occupation of electrician the marine pipe coverer is not separate occupationally classified from the building and construction asbestos worker or pipe coverer. We do not deem that fact to be significant in or controlling in view of the realities of the situation as evinced by the practices in the trades and the distinctions recognized by the unions having jurisdiction over the affected workers. Consequently, the test with regard to the adequacy of the wage offered to claimant is that which prevails for similar work in the marine industry. The record establishes conclusively that the wage offered to the claimant was not substantially less favorable to him than that prevailing for work similar to that which was offered him.

We have previously held that there can only be one prevailing rate for an industry and that such rate must be determined on the basis of the entire industry (Appeal Board 6,624-41 and Appeal Board 20,872-49). Our conclusion set forth above is not in conflict with that rule. The fallacy in claimant's argument is that he overlooks the difference between the two industries and seeks to justify his refusal of the offered employment on the ground that the wages offered to him are lower than those prevailing in a different industry, notwithstanding the fact that such wages compare favorably with the wages paid in the industry in which he was offered employment.

In view of the fact that the two industries are separate and distinct, there might be justification for claimant's refusal of the offered employment on the ground that he was not reasonably fitted by training and experience for the work offered if he had had no prior experience in marine work, (see Appeal Board, 9,576-43 and Appeal Board, 9,077-43 supra). In the instant case however, claimant has experience in both industries. He, therefore; is reasonably fitted by training and experience for work in either of the industries. Under these circumstances the following language of the Appellate Division in the Matter of Delgado" 278 App. 237, reversing Appeal Board, 23,119-50 is applicable:

"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", also see Matter of Tucker, 8 App. Div. 2d 859 reversing Appeal Board, 60,507-57

We therefore, hold that claimant was offered employment for which he was reasonably fitted by training and experience and that the wages offered to him where not substantially less favorable to him than the wages prevailing for similar work in the locality. Claimant's objection to the wage rate offered, therefore, lacks validity and his refusal of employment was without good cause.

Since the record establishes that the offer of employment was not actually completed until June 2, claimant' s refusal thereof had not occurred until that day and consequently, the referee correctly modified the initial determination by changing the effective date thereof, to June 2 and by ruling that there was no overpayment.

The final argument raised on claimant's behalf to the effect that the payment of benefits to claimant for the-week ending June 1, constituted an initial determination that there had been no refusal of employment by claimant without good cause and that the Industrial Commissioner is bound thereby, is entirely without merit. Section 597.3 of the law specifically authorizes the Commissioner to review determinations and issue new determinations in accordance with the provisions of Article 18 of the Law. The initial determination as modified by the referee to be effective June 2, 1958 is sustained. Claimant was not overpaid. The decision of the referee is affirmed. (October 16, 1959)

Dissenting Opinion

We respectfully dissent from the majority decision of our colleagues. We take the position that there is only a single prevailing wage for pipe coverers whether or not they work in building construction work or in shipyards. We do not accept the distinction draw in the majority decision that work as a pipe coverer in a shipyard is in one industry and that work as a pipe coverer in the building and construction field is in a separate and distinct industry.

The Dictionary of Occupational Titles, Volume I, which is concerned with definitions of titles, published by the United States Department of Labor, Bureau of Employment Security, has only one occupational listing for pipe coverer under Code No. 5-33.110. This definition includes work as a pipe coverer in ship building and boat building and repairs. Under the listing of pipe coverer there is a cross reference to asbestos worker, general. In Volume II of the Dictionary of occupational Titles, which is concerned with occupational classifications, lists Code No. 5-33.110 for asbestos worker, general (construction). Under the same heading and code number is listed pipe coverer (ship and boat building and repairs). This latter listing has an asterisk in front of it which is explained in the introduction of Volume II as follows: "A few titles contained in the group arrangement are preceded by an asterisk. The asterisk signifies that such a title receives the same code as the coded title appearing above it; … All asterisk titles are of the same occupational significance as the coded titles which they are associated". The foregoing listings demonstrate conclusively that the official definition of the title of pipe coverer or asbestos worker, general, and the occupational classification of pipe coverers makes no distinction between coverers in construction work and in ship work.

Convincing proof that there is absolutely no difference between a pipe coverer working in the construction field and one who works in the ship field is demonstrated by claimant's own work experience over a period of 20 years. He worked both in construction and ship work without any change in the application of his skills. He moved from one field to the other freely and did exactly the same work whether he worked in a shipyard or in building construction. It is conclusive to us that a pipe coverer is in a single occupation regardless of the particular industry in which his services are employed. This is a common situation in many occupations, notably in the clerical field. Stenographers, typist, clerks, messengers, or office boys although constituting distinct and separate occupations, may be employed in many varied industries. Yet, for unemployment insurance purposes, refusals of job offers are generally considered with relations to such occupations rather than to the industries in which offers are made. The Appellate Division has rejected the industry concept in cases of refusal of employment and held that a stenographer must accept suitable work in any industry (Matter of Greaser, 279 App. Div. 702, reversing Appeal Board 26,862-50; that an Italian baker refuses employment without good cause if he will not accept an offer to bake bread in an American bakery, Matter of Strazza, 278 App. Div. 1036 reversing Appeal Board, 26,077-50, and that a glassware shipping clerk refused employment without good cause when he would not accept a shipping clerks job in another industry with a jewelry concern, Matter of Hinds, 274 App. Div. 959 reversing Appeal Board, 16,842-47).

The majority decision relies on Appeal Board, 9576-43 to support a conclusion herein that we may consider the prevailing rate in the ship industry separate and distinct from the prevailing rate in the building and construction industry. We respectfully submit that this citation is not in point and does not apply to the facts in this case.

In Appeal Board, 9576-43, the facts were markedly different. There, the claimant who lived in The Bronx City of New York had 20 years experience as a building and construction electrician. He never had performed any ship work. He was offered jobs in shipyards in Kearney and Port Newark, New Jersey , at a rate of pay about one-half the union rate in his industry. The Board found that the travel time from his home to the prospective employers was at least two hours each way and that the increased travel fare was more than 100 per cent greater than in his previous job. The electricians in the building and construction industry belonged to a union separate from the union to which ship electricians belonged. The Board based its decision in justifying the claimant's refusal of the offered jobs on many grounds. It found that there was good cause for refusal because of excessive travel time and excessive travel expense. It also concluded that the Industrial Commissioner's wartime policy of allowing at least 30 days for construction workers to find employment in their own occupation before being subjected to disqualification for refusing work in a different occupation, had not been followed in that case when the shipyard offers were made 13 days after claimant filed for benefits. The Board also concluded that electrical work in building and construction was a distinct and different trade from that of electrical work in shipyards; that each trade was independent of the other; that although there were some similarities common to both there were essential differences between the two occupations; that both occupations had different classifications in the Dictionary of Occupational Titles; that the modes and methods of operation and the locale of performance in each occupation was different and that the wartime stabilization agreements were made to apply to the ship industry and the building and construction industry separately.

In Appeal Board, 9077-43, cited in the majority decision which also involved a situation where a building and construction electrician was offered ship work, the Board arrived at the same conclusion on the same ground, except the issues of excess travel and excessive travel expenses were not involved.

Factually and legally, Appeal Board 9576-43 and 9077-43 are not controlling here. Here, unlike the claimants in the cited cases, this claimant had extensive experience in ship work as well as in building and construction work. The job offer herein was not in a different line of work but called for exactly the same skills which claimant had used in all of his work as a pipe coverer whether it was in a shipyard or in a building under construction. In this case, unlike the electricians in the cited cases a pipe coverer is not employed in a different separate trade when he works interchangeably in shipyards and in buildings. While the ship industry may be different from the building and construction industry, the skills of a pipe coverer are exercised in exactly the same fashion in both of them. Unlike the occupational classifications in the cited cases pipe coverers whether they work in shipyards or in building construction, are coded under the identical listing of 5-33.110. Unlike the facts in the cited cases, the method of operation for the performance of work in the building and construction field are the same as those in the ship field. The factor of separate unions in the respective fields is of no consequence in this case because claimant is not a member of any union.

Although claimant is not a union member, he is entitled to refuse employment where the wages offered are less favorable than those prevailing for similar work in the locality. We said so in Appeal Board, 20,872-49. That claimant did not belong to a union. She refused employment in a non-union establishment at the prevailing rate of pay. However, the referee erroneously based his decision in sustaining the initial determination on the ground that the pay offered was the usual rate in non-union establishments. While affirming the referee, we rejected the reasoning and said:

…There is no such test in the law. The test is whether or not the rate offered to the claimant is prevailing for similar services in claimant's locality. ( Section 593.2 of the Labor Law) In Appeal Board, 11,354-44 we defined prevailing rate as follows:

We are of the opinion that, for the purpose of unemployment insurance, "wages. ..prevailing for similar work in the locality are determined by the rate being paid to employees of comparable skill actually engaged in similar work. In other words, "wages prevailing for similar work in the locality" are not the wages employers may be willing to pay to new employees, but are the wages being paid to employees actually engaged in work of a like nature in the locality. Webster defines "prevailing" as "prevalent; most frequent; widespread; generally current; applies especially to that which is predominant or which generally or commonly obtains."

Nor is there any basis in the Unemployment Insurance Law for creating two prevailing rates; one for the unionized portion of the industry and the other for the non-unionized. The prevailing rate must be determined on the basis of the entire industry. Where the industry is substantially unionized, the union rate becomes the prevailing rate. (Appeal Board; 6624-41). (Underscoring supplied)

There is no question in this case that the overwhelming majority of pipe coverers work in the building and construction industry wherein the prevailing wage during the period in issue was $4.20 an hour. Within our definition of prevailing wages in Appeal Board, 20,872-49 there can be no doubt that the prevailing wage for pipe coverers was $4.20 an hour, and that an offer of $2.64 an hour made to claimant was rejected by him with good cause as being substantially less favorable to him.

The majority decision, by dividing the occupation of pipe coverers into two separate industries herein, effectually establishes two prevailing rates of pay. We respectfully submit that not only is this in conflict with Appeal Board precedents but disregards the specific language of Section 593.2(d), which provides that a refusal to accept employment is deemed to be with good cause if the wages are substantially less favorable to the claimant than those prevailing for similar work in the locality. There can be no doubt that the work of a pipe coverer in a shipyard is not only similar but identical with the work with a pipe coverer in the building and construction field. Moreover, it is patent that the statute speaks of a single prevailing rate and not multiple ones.

Section 593.2(d) is in conformity with the requirements of the Federal Unemployment Tax Act wherein it is provided in Section 3304 thereof that the United States Secretary of labor shall approve any state law submitted to him which he finds provides, among other things, that compensation shall not be denied to any otherwise eligible individual for refusing to accept any work if the wages of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality. Again the clear intent of this Federal provision is to set up a single standard or prevailing wages involving similar work and not to encompass multiple standards of prevailing wages for identical work.

We regard the departure from the well established concept of a single standard of prevailing wages to be dangerous. It will tear down the bulwarks erected by the state and federal statutes to protect claimants from job offers which tend to depress wages.

Although not controlling, Section 220 of the Labor Law is enlightening here. By this statute, the state has established a policy that persons employed in public work shall be entitled among other benefits, to be paid not less than the prevailing rate of wages as specifically defined and spelled out in the statute (subdivision 3). In subdivision 5, the "prevailing rate of wage for the intents arid purposes of that article (Article 8 - public work) shall be the same rate of wage paid in the locality to the majority of workmen, laborers or mechanics in the same trade or occupation. Certainly, under Section 220 of the labor law, no one would argue that a mechanic working interchangeably in the same trade or occupation in ship work of a municipality field would be paid a different rate of pay than that paid to a mechanic in another city department.

We respectfully submit that the citations of the Matter of Delgado; 278 App. Div. 237 reversing Appeal Board, 23,119-50 and Matter of Tucker; 8 App. Div. 2d, 859 reversing Appeal Board, 60,507-57 are not applicable. There, the Court ruled that a person reasonably fitted for more than one kind of employment may not refuse one kind merely because he prefers the other. This case does not involve two kinds of employment as was involved in the two cited cases where each claimant had experience in two separate distinct occupations. Here, the claimant is skilled in but one occupation as a pipe coverer and he is reasonably fitted by his training and experience for any kind of pipe coverer's job. The focal point here is that he is entitled to be offered a pipe coverer's job at the prevailing rate of wage. Since the vast majority of pipe coverers receive: $4.20 an hour, that is the prevailing wage upon which claimant can insist and any offer of employment at a substantially less rate of pay is one which the claimant can refuse with impunity and not suffer disqualification.

In our opinion, the initial determination disqualifying claimant for refusal of employment without good cause should be overruled and the referee's decision reversed. (October 16, 1959)

COMMENT

The principle in this case (that different prevailing wages may exist for apparently similar occupations in separate and distinct industries) should be applied restrictively and only when it can be shown that the occupations are, in fact, different.




A-750-1508
Index No. 1205F-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 13, 1959

INTERPRETATION SERVICE- BENEFIT CLAIMS
Refusal of Employment
Disqualification

Appeal Board Case Nos. 67,153-58 and 68,640-59

REFUSAL - SUCCESIVE DISQUALIFICATIONS

A claimant who has been disqualified for refusal of employment without good cause is not subject, to additional disqualifications for refusing subsequent offers of the identical job.

Referee's Decision: The referee sustained the initial determinations of the local office (1) disqualifying claimant from receiving benefits for 42 consecutive calendar days effective August 9, 1958 on the ground that she voluntarily left her employment without good cause, (2) disqualifying her from receiving benefits for 42 consecutive calendar days effective September 24, 1958 on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience and (3), disqualifying her from receiving benefits for 42 consecutive calendar days effective October 6, on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience, and the initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days effective December 1, 1958 on the ground that without good cause she refused employment for which she was reasonably fitted by training and experience.

Appealed by: Claimant

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

Claimant a laundry worker, filed a claim effective September 1, 1958. By initial determinations respectively effective August 9, September 24 and October 6, she was, in each instance, disqualified for 42 consecutive calendar days, the first initial determination being by reason of voluntary leaving of employment without good cause, and the others, because of refusal of employment without good cause. Claimant is 44 years old. She was employed for approximately one year in a union shop. She was a member of the union. She was paid on a piece work basis with a minimum of 97-1/2 cents an hour.

Claimant was employed until August 8. She informed the employer that she was remaining away from work because of illness. She came for her pay on Monday , August 11, and was instructed to report back for work when able to do so. Claimant thereafter, did not report back to work. She was offered re-employment when she was physically able to work with the same employer, by the insurance office on September 24 and October 6 when that office ascertained from the employer that it was willing to re-employ claimant. Claimant, in each instance, refused to return to work for the employer.

Claimant's explanation for leaving her job and refusing to continue working for the employer was that a co-worker approximately one month before August 8, had threatened her with physical violence. Claimant made no complaint to the employer or to the union. Had she made complaints, the employer would have called in the two workers in order to adjust any misunderstanding between them.

The Board makes the following additional findings of fact: Claimant was re-offered the same job with her former employer on December 1, 1958 and January 28, 1959 respectively and on each of the said occasions she refused the offer for the identical reason which caused her to refuse the earlier offers. Additional initial determinations were issued disqualifying claimant for 42 days beginning with December 1 and for 42 days beginning with January 28, 1959 for refusal of employment without good cause. Claimant protested the initial determination effective December 1, 1958 and the said initial determination was sustained by the referee in Case 538-550-58R (Appeal Board 68,640-59).The initial determination with respect to the refusal of January 28 was rescinded as a result of a policy promulgated by the Commissioner subsequent to the refusal of December 1, 1958 because she erroneously believed that her pending appeal from the decision in Case 538-452-58R (Appeal Board, 67,153-58) would review the adverse decisions of both referees. The Board on its own motion, in accordance with the provisions of Section 620.3 of the Unemployment Insurance Law, decided to review the decision in Case 538-550-58R.

The Commissioner's representatives have advised that, subsequent to the refusal of December 1, but prior to the refusal of January 8, 1959 the employment office representatives were instructed to avoid making successive referrals of specific jobs previously refused by a claimant for the reason that it was concluded that to do so would be contrary to sound employment and employment service practices. It was pointed out, however, that notwithstanding such instructions in the event such successive offers are actually made by the employer to a claimant, the disqualification provided for in Section 593.2 of the Law must be imposed separately each time that the offer is refused.

Appeal Board Opinion and Decision: We agree with the conclusions of the referee that claimant lack good cause for leaving her employment and for refusing to accept re-employment. The reasons for such conclusions as set forth in the decisions of the referees are valid and are adopted by the Board. However we do not agree that the disqualification provided for in Section 593.2 of the Law applies to any of the refusals which occurred subsequent to the first refusal of the offer of re-employment on September 24, 1958.

The penalty resulting from a refusal of employment without good cause has been fixed and established as a result of the amendment to the Law which became effective June 30, 1958 (Laws of 1958, Chapter 387). As a result of such amendment, the disqualification is no longer a continuing one which can be terminated only by subsequent employment, but is for a specific period of 42 days commencing with the day on which the refusal occurred. It was made clear by the inclusion of subdivision 4 in the amended statute that the disqualification period is measured by the calendar and is not affected by subsequent employment. It is obvious that by such amendment the Legislature intended to provide for a standard penalty which would be applied against an applicant for benefits who without good cause, refused employment and that it was never contemplated that the penalty could be made more severe or more extensive by the medium of re-offering the same employment to the claimant repeatedly. If there were any other construction of the statute in its amended form, the very purpose thereof would be rendered nugatory, since a claimant could be disqualified permanently merely by the device of re-offering one specific job to which the claimant has objection even though such objection be without legal basis.

Prior to the amendment of Section 593 of the Law, we held that separate disqualifications were applicable in the instance of successive refusals of the same job offer. However, the reason which formed the basis for our decision to that effect in appeal Board, 43,382-54, has no application under the present section of the Law. We pointed out in our decision that there was no prohibition on the imposition of successive disqualifications because under the then existing statute, each of the earlier disqualifications had necessarily become terminated by intervening employment before the re-offer was made. It was a facile thing under the prior statute for claimants to engage in work of short duration and then immediately refile, thus overcoming the disqualification which resulted from an earlier refusal of employment. This is no longer possible and consequently, it is our present view that a re-offer of the same employment followed by a similar refusal thereof is merely a repetition of the single prior act involving the identical offer and refusal. In such circumstance the logic we adopted with regard to the repetition of wilful misrepresentations on separate occasions is applicable. In such instances, we held that there was but a single offense which warranted the imposition of only a single penalty rather than successive penalties. Our holding to that effect in Appeal Board, 9691-43 was affirmed in the Matter of Roberts, 276 App. Div. 845.

Our conclusion is not in conflict with Matter of Crowe, 305 N.Y. 699 reversing Appeal Board 28,204-51 wherein it was held that the statute authorized a separate disqualification for the refusal of the identical job which the claimant had voluntarily left without good cause and for which a disqualification had been imposed. In accord with the principle enunciated in the Matter of Crowe, supra, we have here concluded that the disqualification imposed for claimant's first refusal of the re-offer of employment on September 24, 1958 is proper since her refusal was an act separate and distinct from her leaving of the employment in the first instance. However, the principle which requires the application of the disqualifications under Sections 593.1 and 593.2 are not applicable where the successive disqualifications are issued under the provisions of Section 593.2 based on successive refusals of the identical job. In the latter event there would clearly be a double or triple or even greater penalty for the same act. The acts of refusal are not separable in the statutory scheme.

It is significant that the Commissioner has recognized that it is contrary to sound employment practices to refer a claimant repeatedly to the same employment in the instance where one refusal of such offer has occurred. It would be a harsh rule that would require the imposition of successive penalties based on acts which are acknowledged to be contrary to sound employment practices.

We, therefore, conclude that claimant voluntarily left her employment without good cause and that she refused employment without good cause and that as a result thereof, she should be disqualified for 42 days effective August 9, 1958 the day after she left her job and effective September 24, 1958 the day on which she first refused the offer of employment, but that she is not subject to any further or additional disqualifications.

The initial determinations of the local office disqualifying the claimant from receiving benefits for 42 consecutive calendar days effective August 9, 1958 on the ground that she voluntarily left her employment without good cause and disqualifying her from receiving benefits for 42 consecutive calendar days effective September 24, 1958 on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience is sustained.

The initial determinations disqualifying claimant from receiving benefits for 42 consecutive calendar days effective October 6, 1958 and the initial determination disqualifying her from receiving benefits for 42 consecutive calendar days effective December 1, 1958 on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience are overruled. The decisions of the referees are modified accordingly and, as so modified are affirmed. (October 29, 1959)

COMMENTS

This decision is of importance because it departs from prior practices leading to multiple disqualifications for repeated refusals of the same job where claimant had already been disqualified because of the first refusal.

The Appeal Board makes it clear that the decision is distinguishable from the principle established in Matter of Crowe (A750-1101). That case dealt with a refusal which followed a quit. This differentiation implies that there may still be a disqualification for the refusal of a job which claimant had quit notwithstanding a disqualification already imposed because of a quit.




A-750-1509
Index 1205 E-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 17, 1959

INTERPRETATION SERVICE- BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Prior to Registration

Appeal Board Case Number 70,207-59

EFFECTIVE DATE OF CLAIM FILED AFTER REFUSAL OF EMPLOYMENT

An original or additional claim filed in a week after the day of refusal without good cause in the same week cannot be predated to a date earlier than the first day of unemployment following the refusal.

Referee's Decision: The referee overruled the initial determination or the local office disqualifying the claimant from receiving benefits for 42 consecutive calendar days effective May 5, 1959 on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a secretary, was referred to employment by the employment service on Monday 4, 1959. She accepted the referral and commenced work on Tuesday morning, May 5. After working for about two hours she was discharged by the employer because it deemed claimant's qualifications insufficient for its purposes. After being discharged at about 11 a.m. she telephoned the employment service and was given a referral to employment as a secretary with an employer located on 58th street in Manhattan. Claimant had no objection to any of the terms and conditions of this offered employment except its location. She is a resident of Brooklyn and preferred employment in the lower downtown area.

Claimant appeared at the local office on Thursday, May 7, 1959, which is her regular reporting day and refiled for benefits. Pursuant to Industrial Commissioner's regulation 40a, claimant's claim was made effective as of the first day of the statutory week; namely, Monday, May 4, 1959. On May 21, the local office issued an initial determination disqualifying claimant from receiving benefits effective May 5, 1959 on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience and further ruled that claimant was overpaid $15.50 in benefits. Claimant protested and requested a hearing. The referee overruled the initial determination as to a refusal of employment on the sole ground that the case was governed by the ruling of the Court in Matter of Foscarinis, 284 App. Div. 476 affirming Appeal Board, 35,617-53. The Industrial Commissioner appealed from the decision of the referee solely on the ground that the referee's decision should be modified so as to disallow benefits to claimant for the days of May 4 and 5, 1959.

Appeal Board Opinion and Decision: It is unnecessary on the facts of this case to decide whether the tryout period during the morning of May 5, when claimant worked for two hours without remuneration constituted such employment as would render claimant ineligible to receive benefits on that day due to lack of total unemployment. The controlling fact is that claimant did refuse employment without good cause later on May 5. The lack of good cause for such refusal was virtually conceded by claimant at the referee and Board hearings.

The problem presented here arises out of the application of Industrial Commissioner's Regulation 40a which reads as follows:

Filing of benefit claim. a. A claimant shall file an original claim and register for employment on any day from Monday. through Friday. Any such claim filed in accordance with this section shall be deemed filed as of the first day of claimant's unemployment in the statutory week in which filed, excluding, however, any prior days on which a disqualifying condition would have existed if he had actual]y filed on such day.

Under this regulation, claimant's filing of Thursday, May 7, 1959 was automatically made effective as of the commencement of the statutory week on, Monday, May 4, which was in fact a day of unemployment for claimant. At the time claimant refiled her claim on May 7, the local office had not yet processed the initial determination disqualifying her from receiving benefits for refusal of employment on Tuesday, May 5, 1959.

The referee was technically correct in applying the principle enunciated in Matter of Foscarinis wherein it was held that a refusal of employment without good cause which precedes the filing or refiling of a claim for benefits does not result in disqualification for benefits because the language of Section 593.2 is in the present tense and is intended to refer to refusals of employment made after the filing for benefits. The Court ruled that the disqualification cannot antedate the date of filing.

The Industrial Commissioner argues that the effect of the referee's decision is to negate the intent and effect of the Matter of Foscarinis decision. It is pointed out that if the claim is made effective on Monday, May 4, 1959 in pursuance of Regulation 40a, this would antedate the refusal the refusal of employment on Tuesday, May 5, and would subject claimant to a 42 day disqualification.

The regulation of the Industrial Commissioner providing for the establishment of a claim on an earlier day in the week than that on which the filing actually occurs is not intended to, nor should it be so construed, as to negate or nullify the principle of the Foscarinis case. In view of the fact that a disqualifying condition had occurred on a day prior to the day on which claimant actually became an applicant for benefits, it would be contrary to the purpose an intent of the Law and regulations to predate the filing and cause claimant to become, in effect, an involuntary applicant for benefits for days which include the day on which the refusal of employment occurred. The Commissioner's representatives so concede and urge that a reasonable interpretation of the provisions of Regulation 40a, under the circumstances of this case, requires that the filing be made effective Wednesday, May 6, the first day of the week following that on which the refusal occurred. Claimant, therefore, is entitled to credit for two effective days during the statutory week ending May 10, she was not overpaid.

The initial determination of the local office to the effect that claimant refiled her claim effective May 4, 1959 and was disqualified from receiving benefits for 42 consecutive calendar days effective May 5 and that she was overpaid $15.50 in benefits is modified to the extent that it is held that claimant refiled her claim for benefits effective May 6 and was, therefore, ineligible to receive credit for May 4 and May 5 and except as so modified, the initial determination is overruled. The decision of the referee is unanimously affirmed, but only on the grounds herein above set forth. (October 30, 1959)




A-750-1510
Index No. 795.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

December 9, 1959

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY Restriction – Work

Appeal Board Case Number 66,229-58

AVAILABILITY OF TUGBOAT CREWMEN – PATTERN OF EMPLOYMENT

Tug boat workers who participate in an arrangement designed to enable them to accumulate their normal 120 hours of work for a 3 week period in a period of 2 weeks, so that no work was performed in the 3rd week, are ineligible for benefits during the 3rd week because of a temporary withdrawal from the labor market.

Referee’s Decision: The referee overruled the employer’s objections to the payment of benefits to claimant and sustained the initial determination of the local office holding claimant eligible to receive benefits effective June 16 through June 22, 1958 without disqualifying conditions, and ruled that the employer is not entitled to the return of its statutory deposit made in connection with its request for a hearing before the referee.

Appealed By: Employer

Findings of Fact: Claimant, a deckhand, works aboard a tugboat owned by the employer. The employer is a member of an association which is in contractual relations with a union of which claimant is a member. The contract provides for an eight-hour workday.

Tugboats are usually in operation on a 24-hour basis. Consequently, each tugboat is manned by three separate crews, each of which is required to be on duty during eight hours of each workday. Because of the nature of their work, tugboat workers are usually away from home throughout the workweek. To enable them to return to their respective homes at intervals, the tugboat workers, by agreement among themselves and with the acquiescence of the tugboat operators, have developed the practice which prevails in the industry whereby each of the workers is on duty 12 hours on each work day for two successive weeks and is relieved from duty during the following week. Thus, in each three-week cycle the worker is on duty an aggregate of 120 working hours on ten workdays. This practice prevails notwithstanding the contractual provision fixing an eight-hour workday and without regard to the activity of the employer’s business. No overtime or premium compensation is paid for the hours of work in excess of eight hours on any day in those instances where the additional hours of duty are undertaken by the worker in pursuance of the practice mentioned, but, in accordance with the terms of the collective bargaining agreement, workers are compensated at premium rates for work in excess of eight hours on any day when such work is demanded by the employer because of illness or absence of a crew member, shortage of staff or other emergency. Some employers whose employees work in accordance with this practice pay their employees remuneration for 40 hours of work in each week, including the week in which the employee is relieved from duty. In other instances, the employees receive straight hourly wages for the total work time of 60 hours in each of the weeks during which they are on duty and receive no wages during the weeks in which they are relieved from duty. In the instant case, the claimant was paid according to the latter method and hence, he received no wage payment for the week in issue.

Under the terms of the collective bargaining agreement, the employer is required to make certain weekly payments for each of its employees into specific funds to provide death benefits, non-occupational accident and sickness benefits, hospital and surgical expense reimbursements and benefits of a pension plan. The employer is obliged to make such weekly payments only for each employee in its employ during the week for which the payment is made. Such payments are actually made by the employer for those of its employees who are relieved from duty in accordance with the practice herein above mentioned, in the weeks in which such employees are off duty and perform no services. Additionally, in determining the vacation credits accrued by employees, the weeks in which they are off duty are computed as periods of employment.

Crew members who work in pursuance of the above arrangement are responsible for the proper manning of the vessel to the extent, at least, of holding themselves in readiness to resume work immediately during the off duty week in the event that their opposite number, i.e., the crew member due to perform the work of the absent member, is unable or unwilling to work in that week. In that event, if the absent employee is summoned to return to work and fails to make an immediate return, he is subject to discharge. In the event, however, that an employee is on a lay off status due to lack of work, he is allowed one week after receiving notice of recall to report for the resumption of work. If an employee is recalled to work during his off week because of the absence of his opposite number, he is paid wages at straight time but the opposite number forfeits those wages. If, during an employee’s off week, a vacancy occurs on a vessel other than that to which the employee is regularly assigned, the employer may provide the employee with the opportunity to work as a replacement so that he can earn the additional wages, but the employee is under no obligation to accept that assignment. He may not, during the off week, enter the employment of any other tugboat operator who is a party to the collective bargaining agreement, but he is free to accept temporary work otherwise, so long as he holds himself in readiness to respond to immediate recall should the need therefor arise.

The foregoing pattern of employment is permitted by the employer only if there is unanimous consent among the crew members. Such arrangement was in effect on the vessel to which claimant was assigned with the result that he was off duty from June 16 through June 22, 1958. He performed no services whatever in that week. He was not recalled by the employer nor was he offered assignment by it to any other vessel. The claimant was at his home during that week and although he made no search for work, he alleged he was ready, willing and able to accept any other assignment aboard any of his employer’s vessels if it were offered to him.

Claimant refiled a claim for benefits effective June 16, 1958. Based on an interview with claimant and on a report from the employer, the local office issued an initial determination holding claimant eligible to receive benefits for the week ending June 22, without disqualifying conditions. The employer objected to the payment of benefits to claimant, made the statutory deposit and requested a hearing. The referee overruled the objections, sustained the initial determination of the local office holding claimant eligible to receive benefits and ruled that the employer was not entitled to the return of its statutory deposit. The employer upon making a further statutory deposit appealed to the Board from the referee’s decision.

Appeal Board Opinion and Decision: In overruling the objections of the employer and sustaining the initial determination holding the claimant eligible for benefits without disqualifying conditions, the referee followed our decision in Appeal Board, 61,641-57 and ruled that the facts were distinguishable from Appeal Board, 51,115-55 (affirming Referee Case 531-68-55R) for the reason that unlike the referee’s finding in the instant case, the claimant in the last cited case "could not accept employment during the week off on any other vessel subject to the union contract."

We have found in the instant case that the identical restraint which was placed upon the claimant involved in Appeal Board, 51,115-55 applied to the claimant herein, so that the basis for the distinction is absent. However, we have previously considered the status of tugboat workers during the off week and except for our decision in Appeal Board, 51,115-55, we have consistently held that the claimants were eligible for benefits. (See Appeal Board, 38,516-53, 43,058-54 and 61,641-57). The evidence before us in the earlier cases was not as clear as has now been presented to indicate the true nature of the arrangement which results in the pattern of off weeks for tugboat workers. We believe that in view of our present understanding of the situation gleaned from the evidence adduced herein, a review of our disposition of these matters is in order. Significantly, the Commissioner’s view is that the circumstances of claimant’s unemployment during the off weeks indicate claimant’s ineligibility for such periods, but, nevertheless, a contrary initial determination was issued only because the Commissioner deemed himself bound by our decision in Appeal Board, 61,641-57.

We are now convinced that the tugboat worker who participates in an arrangement whereby, for his own convenience, he is enabled to accumulate his normal 120 hours of work for a three-week period in a period of two weeks and thus be relieved of the necessity for performing work in the third weeks, is not eligible for benefits within the purview of the provisions of the Unemployment Insurance Law for the reason that he has temporarily withdrawn from the labor market.

The collective bargaining agreement between claimant’s union and his employer contemplates that in each three-week period claimant’s full employment would consist of work for 120 hours and that his wages would consist of 120 times his basic hourly rate. Since claimant was provided with work for 120 hours and was paid 120 times his basic hourly rate during the three-week period which included his off week, it would not be within the spirit of the Unemployment Insurance Law to award to him unemployment insurance benefits to supplement his earnings in the week during which he was idle, only because his arrangements with his fellow workers enabled him to accumulate his hours of work and remuneration in a shorter time so that he could enjoy a respite from work during each third week. In so stating, we emphasize that this conclusion is dictated by the arrangement which is peculiar to this occupation.

Claimant’s unemployment during the period here in issue stemmed solely from his participation in the arrangement designed to enable him to voluntarily temporarily withdraw from the labor market for that week. Under such circumstances, claimant is ineligible for benefits.

The worker’s readiness to respond to recall by his employer and to resume work in that week in the event of such recall does not alter the result. The restrains placed upon him by virtue of the arrangement effectively foreclose him from opportunities for temporary reemployment elsewhere. The pattern of returning home during the off weeks indicates that the true purpose of the arrangement is to provide those who participate in the arrangement with a respite from work for their personal convenience.

It is unnecessary to consider whether claimant was in fact totally unemployed since his unavailability produced by his voluntary temporary withdrawal from the labor market rendered him ineligible.

The initial determination of the local office holding claimant eligible to receive benefits effective June 16 through June 22, 1958 without disqualifying conditions is overruled. The employer’s objection to the payment of benefits to claimant is sustained. The employer is entitled to a return of its statutory deposits. The decision of the referee is unanimously reversed. (November 23, 1959).

COMMENTS

  1. This decision, in effect, overrules A.B. 61,641-57 reported in the Interpretation Service under A-750-1480; which must now be considered obsolete. The Board points out that their decision in the earlier case was based upon evidence which was not sufficiently clear to indicate the true nature of the off-week pattern for tug boat work.


  2. Somewhat similar facts were involved in A.B. 51,115-55. The claimant in that case was held entitled to credit for the third week as a "week of employment" under the authority of Industrial Commissioner’s Regulation 2(g), as a week of paid leave of absence. That principle should be applied in determining weeks of employment in the base period.



A-750-1512 (Revised)
Index No. 1540-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 28, 1960

INTERPRETATION SERVICE – BENEFIT CLAIMS
RECOVERY OF OVERPAYMENT

Appeal Board Case Number 73,553-60

OVERPAYMENT – CERTIFICATION AS TO JOB OFFERS

Failure by a claimant to mention a job offer orally when certifying that "he has notified this office of all job offers" is not a false statement or concealment when an entry in the identification booklet which the claimant presented reflects the referral to the job and an overpayment is non-recoverable under such circumstances if there are no other facts showing a lack of good faith in accepting benefits.

APPEAL BOARD DECISION

An initial determination was issued by the local office on July 7, 1959 disqualifying the claimant for 42 consecutive calendar days for refusal of employment without good cause and charging claimant with having wilfully made a false statement to obtain benefits thereby reducing her right to future benefits by 24 effective days to be forfeited and further charging claimant with an overpayment of benefits in the sum of $66 which was held to be recoverable. The claimant objected thereto and requested a hearing. A hearing was thereafter held before the referee on September 17, 1959. The referee rendered a decision dated September 28, 1959 sustaining those portions of the initial determination which charged claimant with having wilfully made a false statement to obtain benefits and which ruled that the overpayment was recoverable. The Industrial Commissioner thereupon appealed to the Board from the decision of the referee insofar as it overruled the initial determination of the local office that the overpayment of $66 in benefits was recoverable, and a decision was rendered in Appeal Board, 71,085-59 dated December 8, 1959 reversing the decision of the referee.

Pursuant to the provisions of Section 534 of the Law, the Board thereafter, on its own motion, decided to reopen and reconsider its said decision in appeal Board, 71,085-59. The Industrial Commissioner, by written consent, waived a hearing before the Board in accordance with Rule 18 of the Rules and Regulations Governing Practice and Procedure Before Referees and Appeal Board.

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

FINDINGS OF FACT: On June 15, 1959, the employment office referred claimant to employment in her usual occupation at prevailing wages and conditions. Claimant accepted the referral, reported to the employer on June 16, 1959 but refused the employment because she was not satisfied with the condition of the premises and for other personal reasons which do not constitute good cause under the Law. The employment interviewer who referred claimant to the employment made an entry in claimant’s identification booklet, in the appropriate space provided therefor, indicating that the referral had after, on claimant’s regularly assigned reporting date in the two succeeding weeks, claimant reported to the insurance office and certified for benefits for the week in which the referral had occurred and for the following week. When she so certified in each instance, claimant presented to the claims clerk, as part of her certification for benefits, her identification booklet, containing the entry with regard to the referral as aforesaid. The established procedure requires a claims clerk to examine the placement section of claimant’s identification booklets to become aware of all entries therein. Notwithstanding the entry with respect to the referral of June 16, claimant was not specifically interrogated until July 7 about the outcome of the referral and the initial determination disqualifying her for the refusal of employment was not issued until that day. In the meantime, based on claimant’s certifications on June 23 and June 30, benefits aggregating $66 were paid to her for the weeks ending June 21 and June 28. Accordingly, such payments constituted an overpayment on the basis of the retroactive initial determination issued on July 7.

When claimant certified on June 23 and June 30, she signed the usual certification forms which, among other things, contained printed thereon the statement "I notified this office of all job offers I received." Claimant had not orally made any mention of the referral above set forth.

OPINION: In our previous decision we ruled that the overpayment was recoverable on the theory that since claimant had made no oral mention of the referral of June 16, her signature on the printed form indicating that she had notified the office of all job offers, constituted a false statement which precluded a waiver of the recovery of the overpayment. Upon consideration we arrive at a conclusion contrary to that previously made.

Our review satisfies us that the entry with regard to the referral which appeared in claimant’s identification booklet when she presented it to the claims clerk at the times of her certifications, was in fact a notification of the job offer made by the employment office on the date so indicated. Inasmuch as such entry constituted an integral part of claimant’s certifications, the entry was notification to the insurance office of such job offer. Viewed in this light, it is apparent that since claimant did, in effect, give notification of the job offer of June 16 by the presentation of the booklet, she did in truth notify the local office of the job offer which she had received. Consequently, the certification contained on the printed form was not false.

There is nothing in the record purporting to indicate that when claimant certified between the date of the referral and her certifications on June 23 and June 30 respectively, she knew that a disqualification would result from her refusal of the employment or that as a result thereof she would be disqualified from receiving benefits for the weeks ending June 21 and June 28. It follows that there has been no showing that claimant lacked good faith in the acceptance of such payments. Similarly, since as we have found, she affirmatively indicated by the presentation of her booklet that the offer of employment had been made on June 16, it is apparent that there was no wilful concealment of that fact. Under these circumstances, the issuance of the initial determination retroactively does not affect claimant’s rights to the benefits theretofore paid to her. (Section 597.4 of the Law)

DECISION: The Board’s decision dated December 8, 1959 (Appeal Board, 71,085-59) is reopened and reconsidered and upon such reopening and reconsideration, the same hereby is rescinded.

The initial determination of the local office ruling the overpayment of $66 in benefits is recoverable is overruled.

The decision of the referee insofar as appealed from is unanimously affirmed. (March 31, 1960)




A-750-1513
Index No. 1520-10
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 22, 1959

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous Employments

Appeal Board Case Number 67,996-59

TOTAL UNEMPLOYMENT – NOT CONTINUOUS SELF-EMPLOYMENT

Claimant, a full-time factory worker, who during hours when not so employed performs occasional work as a beautician at home by appointments, is self-employed but only on those specific days when actually engaged in such work.

Referee’s Decision: The referee modified the initial determination of the local office holding claimant, a factory laborer, ineligible to receive benefits effective December 8, 1958 on the ground that she was not totally unemployed by holding that claimant was ineligible for benefits only on three days in each of the weeks ending December 14, 21 and 28, 1958, and on four days in the week ending January 4, 1959.

Appealed By: Industrial Commissioner

Findings of Fact: After a review of the record including testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee’s findings of fact and conclusions of law are fully supported by the record 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 the Board, except that the Board makes the additional finding of fact that claimant’s activities in connection with her beauty parlor were confined to work by appointments only.

Claimant, a factory laborer, filed effective December 8, 1958. By initial determination effective the same date, she was ruled ineligible because of lack of total unemployment.

Claimant 58 years of age, self-supporting, was employed from 1957 through November 18, 1958, by a manufacturer of coffee at Newport. She worked an 8 a.m. to 4 p.m. shift, five days a week, up to the winter of 1957, and thereafter worked on the night shift, 4 p.m. to 12 midnight. Previous thereto, she had been employed for many years in a shoe factory at Newport and with a manufacturer of underwear at Herkimer. For many years, claimant, while so employed, operated a beauty shop in her home and performed the work during hours she was not working and on Saturdays. Her husband was the original owner of the establishment and a certificate of Madame Du Barry Beauty Shop was filed by him previous to 1938, when claimant was separated from her husband.

Following her layoff on November 18, claimant, at her first interview at the insurance office, notified it that she was doing her beauty work in her home and, when she certified for benefits for the weeks ending December 14, 21 and 28, she placed a check in the box on three days in each of the weeks and reported that she had earnings on three days in the respective weeks of $13.50, $10.50 and $15.25. During the week ending January 4, 1959, she worked four days and had receipts of $40. Claimant had at all times been ready, willing and able to accept employment and has actively sought employment.

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, except as supplemented herein. The facts in this case do not differ substantially from those in Appeal Board, 67,201-58 in which we reached a similar result. In that case we said:

We cannot accept the referee’s conclusion that claimant’s activities in connection with his repair shop constituted self-employment and barred him indefinitely from receiving benefits, within the principle of Matter of Emery, 281 App. Div. 425, affirming Appeal Board, 30,879-52. Claimant did not operate a steady business venture requiring the daily rendition of services. Unlike the retail liquor store operated by the claimant in Matter of Emery supra. Or the bar and grill operated by the claimant in Matter of Schreiber, 5 App. Div. 2nd 745, reversing Appeal Board, 55,345-56, claimant only did repair work when and if such jobs were brought to him. He was idle between such orders. He openly revealed to the local office that he had performed such repair work on specific dates and marked his booklet accordingly. We conclude that claimant was self-employed and ineligible for benefits only on those specific days on which he performed such work as set forth herein in the findings of fact.

The decision of the referee is affirmed. (April 10,1959)

COMMENTS

This decision points out "self-employment" may be limited to specific periods and that activities in self-employment, not of a continuous nature, may not completely bar a claimant from receiving benefits. Thus, claimants, in accordance with the facts in a given case, may be "not totally unemployed" only on those days when actually engaged in self-employment.




A-750-1514
Index No. 910-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 17, 1960

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

Appeal Board Case Number 69,783-59, et al

ENTITLEMENT – ILLEGAL EMPLOYMENT

Employment in an illegal enterprise will not establish rights to unemployment insurance benefits if the specific services which the claimant renders are in violation of the law.

Referee’s Decision: The referee sustained the initial determinations of the local office holding claimants ineligible to receive benefits effective various dates in March 1958 and March 1959 on the ground that they did not file valid original claims for benefits in that they did not have at least 20 weeks of covered employment in their respective base period.

Appealed By: Claimants

Findings of Fact: Claimant M.A.P. and N.H.G. filed claims for benefits effective March 10 and March 17, 1958 respectively. Claimants A.J.A. and M.K.M. filed claims for benefits effective March 2, 1959. Claimant N.E.D. filed a claim for benefits effective March 16, 1959. All of the claimants were employed during their respective base periods by the employer who operated an establishment in which he conducted bingo games exclusively. Claimants worked at the bingo hall primarily as cashiers, callers, checkers and manager. Each of them did some incidental work such as cleaning and preparing and serving refreshments.

The bingo games operated by the employer consisted of placing markers on cards as numbers were drawn and called. Winners received cash prizes varying in amounts between $5 and $750 or articles of merchandise. Chairs were rented to those who participated in the game. The amount of games in which a patron was entitled to participate varied in accordance with the amount of rental paid for the chair. It was not compulsory for a person to rent a chair in order to play.

The services performed by each of the claimants constituted an integral part of the operation of the bingo games. The employment of each of the claimants occurred prior to the recent constitutional amendment authorizing the operation of bingo games under specified conditions and prior to the effective date of the State Lottery Control Law. (Constitution Article I, Section 9; Executive Law, Section 430.)

In February 1956, the employer filed a report to determine liability under the Unemployment Insurance Law. The employer indicated thereon that it had employed three or more persons in 1956 commencing with January 27. He gave no indication on the report that his business consisted of the operation of bingo games but set forth that his principal activity was "amusement Center." On the basis of such report, the Commissioner’s representatives ruled that the employer had become subject to the provisions of the Law effective January 27, 1956 and an employer registration number was assigned to him. In due course thereafter, the employer filed wage reports and paid contributions. Such contributions were accepted by the Commissioner’s representatives. The employer had not indicated on any of his contribution reports that the wages paid by him on which the contributions were based represented wages paid to persons who were actively participating in the operation of bingo games.

Appeal Board Opinion and Decision: Section 137 of the Penal Law prohibited the operation of a lottery within the State of New York during the period here at issue. In People vs. Kiefer, 173 Misc. 300, an indictment against one who was accused of a violation of the lottery statutes because he had acted as an officer, master of ceremonies and treasurer for a bingo game operated under substantially similar conditions to those here involved, was sustained on the theory that, irrespective of the name assigned to the game and notwithstanding that it may have been conducted for the benefit of a non-profit charitable organization, it, nevertheless, constituted a "lottery" and was, therefore, an illegal pursuit. To the same effect, since People vs. Williams, 202 Misc. 420, and People vs. Cadle, 7 App. Div. 2d 65. In People vs. Cadle, supra, it was held that a violation of the lottery statute occurred even though it was possible for persons to participate in the game without payment of any consideration. Similarly, in Italian Community Home Federation, Inc. vs. Kelly, 12 Misc. 2d 33, it was held that bingo games could not be legally conducted even though such games were "free" following an entertainment program for which an admission fee was charged.

It is thus amply clear that the employment with which the claimants herein seek to be credited was illegal. The nature of the services rendered by each of the claimants was such that each of them was an active participant in the actual operation of the illegal lottery. Under these circumstances, there is no merit to the argument advanced by claimants that the illegality of their employment should be overlooked because the local enforcement authorities had not disturbed the operation of the bingo game. Significantly, each of the claimants became unemployed because in their community "commercial bingo halls" were closed at the time when charitable organizations were licensed to operate such games in pursuance of the provisions of the State Lottery Control Law.

Having concluded that the employment with which claimants seek to be credited was, by its very nature, illegal, it necessarily follows that the claimants may not be credited therewith for the purpose of establishing eligibility for unemployment insurance benefits. Under another social statute, namely, the Workmen’s Compensation Law, the Courts have held that one who is injured in the course of illegal employment may not receive the protection afforded to those who are employed in legal activities. Thus, in Herbold vs. Neff, 200 App. Div. 244 workmen’s compensation benefits were denied to a bartender who was injured while employed in a saloon during prohibition. The court said:

"It is a fact familiar to all that at the time of accident the sale of liquor was unlawful. The deceased and his employer were, therefore, engaged in an unlawful occupation. This court cannot lend its aid to the enforcement of any claim growing out of a contract of employment one of the purposes of which is the violation of the Law of the land making the sale of intoxicating liquors a criminal offense."

To the same effect, see Swihura vs. Horowitz, 242 N.Y. 523, affirming 215 App. Div. 740.

The recent decision in Matter of Albertson, 8 App. Div. 2d 918, reversing Appeal Board, 60,971-57 is not in conflict with the views hereinabove set forth. Although unemployment insurance benefits were allowed to the claimant in the cited case, the Court pointed out that there was no evidence in the record establishing that all of the employer’s activities were outlawed or that claimant had engaged in any personal criminal activity. The Court specifically stated:

* * * nor do we hold that if a particular hiring is itself shown to be criminal in the actual employment, that the employee is then entitled to benefits for the period of such employment.

The Court further stated:

If it were demonstrated that a specific employment were criminal as distinguished from a status attaching to the employer itself, a different result might become permissible as to the claim for benefits arising from such an employment, * * *

In the instant case, the record amply establishes that the specific services rendered by each of the claimants were criminal, in that such services were in clear violation of the provisions of the Penal Law. Consequently, we hold that the claimants may not be credited with such employment or the remuneration resulting therefrom.

We deem it not significant that the employer paid contributions. Such contributions were accepted by the Commissioner’s representatives in reliance upon the employer’s representation that he was engaged in a legal venture. There is no evidence purporting to indicate that the contributions were accepted with knowledge that the remuneration upon which such contributions were based resulted from illegal employment.

The initial determinations of the local office are sustained. The decision of the referee is unanimously affirmed. (February 3, 1960)

COMMENTS

The principle applied in the here reported case is identical with that stated in Special Bulletin A-710-18.




A-750-1515
Index No. 1285-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 3, 1960

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Union Relations

Appeal Board Case Number 69,980-59

REFUSAL – LOSS OF RETIREMENT RIGHTS

If a claimant who has reached the retirement age would be eligible for a pension under a union retirement plan in a few months by having completed two years of continuous employment exclusively within the jurisdiction of the local union or its affiliates, the claimant has god cause for the refusal of employment which would have broken this condition and required another two years of employment in compliance with the condition in order to reinstate retirement eligibility.

(Use restrictively — see Comments)

Referee’s Decision: The referee sustained the initial determination of the local office disqualifying claimant, a sewing-machine operator, from receiving benefits for 42 consecutive calendar days effective April 17, 1959 on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience and charging her with an overpayment of $33 in benefits which was deemed not recoverable.

Appealed By: Claimant

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

* * *

Claimant, a sewing-machine operator, filed a claim effective April 6, 1959. By initial determination effective April 17, she was disqualified for 42 consecutive calendar days for refusal of employment without good cause. She was charged with an overpayment of $33 which was ruled not to be recoverable.

Claimant has had 20 years experience as a lining maker. She was employed for approximately one year to February 7. She worked in a shop associated with Local 20 of her union. Claimant is a member of Local 117. On April 17 the employment office offered claimant a job as a lining maker, five days, 35 hours weekly, to work on a piecework basis in a shop affiliated with Local 98 of her union. She was instructed to go to the employer on April 20. She accepted the referral. She went to the employer. She stated she would return and failed to return back for work.

Claimant is 63 years old. She became re-employed on May 25 as a lining sewer in a shop affiliated with Local 20.

Claimant takes the position that after she was interviewed by the prospective employer, she called the office of Local 20 to ascertain the effect of accepting employment with an employer affiliated with another local and that she was told that if she did so, it would make it necessary for her, after such employment terminated, to continue working for two additional years in a Local 20 shop in order to be able to apply for a union retirement pension.

An official of Local 20 appeared at the hearing. He submitted that Local 98 as yet did not have a retirement fund so that reciprocity of employment with that local could not be granted. It was his opinion that if claimant applied for a pension and the pension committee ascertained that claimant had worked in a Local 98 shop in the two-year period prior to the application, her application for retirement might not be granted.

We make the following additional findings of fact: Claimant’s retirement rights are governed by "The Rules and Regulations of Local 20 – Local 10 ILGWU (International Ladies Garment Workers Union) Retirement Benefits Fund." Under Article IV, Section 1B thereof, claimant would be entitled to reciprocity retirement, if employed in her industry for at least two years prior to retirement and for 18 years in other industries covered by the ILGWU which have retirement funds and reciprocity provisions. Under Article IV Section 1A of said rules, it is provided that females between the ages of 62 and 65 who meet the employment requirements may retire and receive reduced benefits. The only interruption of employment which would not deprive claimant of credit as periods of employment are interruptions due to disability, lack of work or military service. Claimant elected to file her application for retirement in September 1959, at which time she would have had two years continuous employment. She could not obtain retirement through Local 98 had she accepted the job offer, because Local 98 has no retirement plan. Had claimant accepted the job offer, her two years’ continuous employment prior to her retirement would have been broken and claimant would be required to work for two more continuous years in a shop governed by Local 20.

Appeal Board Opinion and Decision: In his opinion sustaining the initial determination, the referee relied upon our decision in Appeal Board, 42,766-54 and concluded that since acceptance of the employment would not have interfered with claimant’s membership in her union, it necessarily follows that her refusal of the employment was without good cause. We do not accept this conclusion.

It is true that acceptance of the offered employment would not interfere with the retention of claimant’s membership in her union and she cannot rely upon subdivision (a) of Section 593.2 of the Law to spell out statutory good cause for her refusal of the employment. However, the Law does not limit good cause for refusal of employment to the specific circumstances recited in the several subdivisions of the above section. On the contrary, it is clearly provided in the statute that the disqualification shall apply on if the refusal is "without good cause." There are no limitations in the statute on the particular circumstances or situations which may be deemed to constitute "good cause." The Law merely delineates four separate conditions which shall, as a matter of law, be deemed to constitute "good cause." If the reasons relied upon by the claimant for the refusal of employment are not such as to preclude a finding of lack of good cause as a matter of law, the reasons so advanced must be considered to determine whether, in the particular case, good cause existed as a matter of fact. We have held that among many other reasons there is good cause to refuse employment if acceptance thereof would affect adversely a claimant’s health (Appeal Board, 10,062-43) or would endanger a claimant’s safety and would be hazardous to a claimant on account of age (Appeal Board, 10,152-43; 13,221-46) or handicap (Appeal Board, 16,936-48) or would be in violation of a claimant’s religious scruples (Appeal Board, 34,048-52). Such conclusions are founded upon findings of fact supported by credible and convincing evidence. In substance, the test in such circumstances is whether a reasonably prudent person, genuinely attached to the labor market, would be impelled to reject the employment under the conditions which confronted the claimant.

Applying that test to the facts herein, the conclusion is compelled that claimant’s refusal of the offer was with good cause because of the substantial detriment which would have resulted otherwise. In view of claimant’s advanced age, the fact that by her past labors she had earned the right to retire and receive a pension within five months after the date of the offer herein, and the fact that she had already elected to avail herself of that right, claimant had sound and valid reasons constituting "good cause" to avoid any act which would have produced a forfeiture of that right or would have interfered with her exercise thereof. Since acceptance of the offered employment would have immediately deprived claimant of the right to receive her pension at the time she was due to retire and would have made it necessary for her to either forfeit the pension entirely or else postpone her retirement until she could again procure employment in her industry and continue therein for at least two additional years, she acted reasonably and with good cause when she refused the offer.

The facts here are distinguishable from those found in our decision in Appeal Board, 42,766-54, relied upon by the referee. In the cited case, we specifically pointed out that there would have been no loss of retirement benefits unless the claimant worked outside of the industry for a consecutive period of 24 months and that material prejudice to claimant was unlikely since his retirement benefits remained unaffected so long as he had 26 weeks of employment with an employer who was a contributor to the pension fund. Moreover, in the cited case claimant’s retirement was not imminent and acceptance of the offered employment would not have compelled the claimant either to forfeit the pension or postpone his retirement.

Under all of the circumstances herein, we conclude that claimant’s refusal of the offered employment with good cause.

The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days effective April 17, 1959 on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience and charging her with an overpayment of $33 in benefits deemed to be not recoverable, is overruled. The decision of the referee is unanimously reversed. (February 16, 1960)

COMMENTS

The principle in this decision should be applied restrictively. The Appeal Board has intimated that a different result might obtain if the claimant was not of advanced age and retirement was not imminent. Furthermore, it must be clearly established that the specific employment would have resulted in a forfeiture of the retirement eligibility. The offered position in this case was of indefinite duration and it is doubtful whether a temporary job, for instance, would have the same consequences.



A-750-1516
Index No. 1460H-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 5, 1960

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Availability – Union Considerations

Appeal Board Case Number 72,802-60 et al

PAYMENT OF STRIKE BENEFITS FROM UNION FUND

The receipt of strike benefits from a union fund does not render a claimant ineligible for benefits when the payments are not contingent upon the rendition of services during the strike.

Referee’s Decision: The referee sustained the initial determinations of the local office holding claimants eligible to receive benefits effective August 10, 1959 without disqualifying conditions and overruling the employer’s objections thereto.

Appealed By: Employer

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:

* * *

Claimants, machinists, toolmakers and pattern makers, filed clams for benefits effective August 10, 1959. By initial determinations, they were ruled eligible for benefits, in that they filed valid original claims. The employer requested a hearing and duly made the statutory deposits therefore, contending that claimants were not available for employment, were not totally unemployed, and that payment of benefits to these claimants would constitute an unreasonable and arbitrary taking of property without due process.

The employer operates a factory for the production of iron and brass valves at Binghamton. It was in contractual relations with a local of the International Association of Machinists and with the Patternmakers League of North America, both labor unions. Effective June 22, 1959, the local of the International Association of Machinists commenced a strike at this plant and established a picket line. The strike continued until August 26, 1959, at which time the employees returned to work. The claims herein followed the seven-week suspension period set forth in the Unemployment Insurance Law for loss of employment due to strike; 183 of the employees of the employer herein filed claims for benefits. All of these employees were also required to file applications for employment at the employment office. One of these employees was referred by the employment office to a job and was thereafter disqualified for refusal of employment. That is not in issue herein.

The constitution of the International Association of Machinists provides (Article 19) for the method of declaring a strike and for the payment of strike benefits to members of a local union. After describing therein the method of payment of such strike benefits, it further provides, in part: (section 7 of Article 19), "No benefits shall be paid to members who refuse to do the duties assigned to them by those in charge of the strike." The union strike fund from which payments are made is accumulated by a per capita tax. Payments from their fund were made to the strikers commencing with the second week of the strike. The first payment was $35 and thereafter, $10 weekly. Most of the workers picketed several hours a week. Pursuant to the constitution only those employees who were members of the union for six months could qualify for the strike-benefit payment from the union. Although the union sought to have all the members picket during the strike, payments were made to some of the members who did not picket. Several members of the union who were ill received strike benefits. One member was on parole and he received strike benefits, although he did not picket the employer’s establishment.

Between June 22 and August 26, the employment office referred five of these strikers to other employment. Three workers accepted referrals for temporary work.

Two officers of the local of the International Association of Machinists ordinarily receive a monthly allowance for duties performed by them on behalf of the local, but, during the period in question, did not receive such payments. Seven employees of the employer herein were members of the Patternmakers League. Their agreement with the employer provided that they were not required to cross a picket line in the event of an industrial controversy. Their local did not call a strike at this establishment. They received a $20 weekly payment from the Union for subsistence. The patternmakers were not required to do anything to receive such payments. Although there are employers in Binghamton and its vicinity that employ machinists and tool makers, there is apparently no other employer there employing patternmakers.

From 1956 to 1959, the employer’s contribution rate established pursuant to the experienced rating formula of Section 581 of the Unemployment Insurance Law was less than one percent of all wages paid by the employer under this Law.

It was stipulated by all parties that the facts herein apply to all employees and claimants similarly situated, and that the decisions in the cases chosen for the hearing would likewise apply to the others so similarly situated.

Appeal Board Opinion and Decision: Since the referee has rendered a well-reasoned opinion, we adopt it as the opinion of the Board:

Claimants herein were available for employment within the meaning of the Unemployment Insurance Law and were totally unemployed. A voluntary picket line does not establish that a claimant is unavailable for employment or that he is not totally unemployed. (Appeal Board, 46,075-54.) In that case, the Board stated that

***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.

In the cited case, the workers were on strike, spent considerable time picketing employer’s premises, and received $25 a week from a fund. The time spent on the picket line there was arranged among the strikers. The Board in ruling these claimants eligible for benefits, also stated,

***claimants were willing and ready to accept work without unreasonable restrictions. ***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. ***Their inability to find work cannot be used as a basis to establish that they were unavailable for work.

A similar situation prevailed herein.

In Appeal Board, 58,900-57, it was held that picketing for two hours a day was not sufficient to establish unavailability for employment.

The payments to the strikers herein from a fund created by the members of the union were in the nature of subsistence and did not constitute wages. These claimants were not hired by the union to picket. No proof was interposed to establish that weekly payments to the strikers were made pursuant to a contract of hire, either expressed or implied, or that these payments were contingent upon the rendition of services by the claimants. Some of the strikers who did not picket received these payments. Therefore, these payments were in the nature of strike benefits designed to assist the strikers financially. The Industrial Commissioner’s interpretation has promulgated a regulation with respect to the status of pickets. The interpretation provides as follows:

2. Status of Pickets (Section 511, 12, 517, 592, Unemployment Insurance Law).

    1. A. All persons engaged by a labor union for the purpose of picketing are employees of the union provided remuneration is paid for such services. The fact that a person so engaged for the purpose of picketing is a member of the union, is on strike, or is or was an employee of the employer whose business is picketed does not affect his status as an employee of the union.

B. Payments made by labor union to persons performing picket services are not ‘remuneration’ within the meaning of the unemployment insurance law.

    1. if they represent reimbursement for expenses which are either separately accounted for to the union by the person performing picket services or fixed in a reasonable amount by agreement between the parties before the services as a picket are rendered or
    2. If they represent strike benefits. "strike benefits’ are payments made by a labor union, pursuant to union rules and regulations, because of a strike to its members participating in the strike, to assist them financially during the strike, provided such benefits are not conditioned in fact or in amount upon the rendering of services during the strike.

In citing that interpretation, the Appeal Board, in 32,350-52, held that a $35 weekly payment paid by a union to strikers did not establish that such strikers were employed during a claim for benefits. Further support for this position is found in Radice et al v. Department of Labor and Industry, Division of unemployment Compensation, Board of Review and Trenton Times Corporation, decided in the Superior Court, New Jersey, and reported in the Unemployment Compensation Interpretation Service, Benefit Series, Vol. 12, No. 10, page 124 (13,786 N.J. Ct. ), wherein the Court in passing upon payments made to striking newspaper workers by a union held (p. 126):

We do no believe that the strike benefits were in any real sense in payment of the services to the Trentonian, (A newspaper established by the strikers). They came from a fund to which the appellants had contributed and might be analogized to savings funds or to private insurance for which they had paid the premiums. The amount of benefits, although dependent on marital status, had no relation to the nature or extent of their Trentonian services. If they were at home sick or were fulfilling other strike duties, such as picketing, they received the same benefits. ***It is true, as the Board indicated, that the strikers were required to perform assigned duties and would not receive their benefits if they declined without reason. That, however, would appear to be simply an exercise of union discipline rather than an indication that the benefits were paid as wages or remuneration for services rendered. ***This construction is fully consonant with the broad remedial objectives of the statute which have been frequently recognized by our courts. See Bergen Point Iron Works v. Board of Review, 137 N.J. L. 685 (E.& A. 1948)

Strike benefits are not regarded as wages under the taxing provisions of the Federal Social Security Act. Cf. Israelite House of David v. United States, 58 Fed. Supp. 862 (D. Mich. 1945), cited in Matter of Radice, supra.

The employer contends that during the period in question, there was a steady demand in the community for machinists and tool makers, and that these claimants did not "accept" new employment. It has not been established that such jobs were offered to these claimants, and while they did not accept such employment, neither did they refuse it. A realistic appraisal of the situation indicates that the other employers in the locality may have been reluctant to engage these strikers. The fact that they were out of work was known to the community. The employment office, where these claimants had registered for work, apparently did not receive orders from employers in the community for these machinists and toolmakers.

With respect to the employer’s contention that payment of benefits to these claimants is unconstitutional, in that it would increase its contribution rate and thereby constitute an unreasonable and arbitrary taking of property without due process, it is sufficient, at this point, to cite Appeal Board, 12,116-45, wherein it stated,

We are not competent to pass upon appellant’s contentions that part of section 516-B *** is unconstitutional because it is discriminatory. The Unemployment Insurance Appeal Board is not a court of general jurisdiction. It is an administrative body charged with the adjudication of disputes arising under the Unemployment Insurance Law. It is well settled that an administrative body may not question the constitutionality of legislation under which it operates; it must obey the mandate of the statute. (Mortgage Commission of the State of New York v. Harmon, 249 App. Div. 25, affirmed 274 N.Y. 598.)

See also Niagara Falls Power Company v. Halpin, 267 App. Div. 236, affirmed 292 .Y. 472.

We add the following: In answer to the employer’s contention that the payment of benefits to claimants after the expiration of the seven-week suspension is in violation of constitutional guarantees of due process, we point out that such contention was expressly rejected by the Court of Appeals in Chamberlin v. Andrews, 271 N.Y. 1, which upheld the constitutionality of the Unemployment Insurance Law (affirmed 299 U.S. 515, reargument denied 301 U.S. 714).

The initial determinations of the local office are sustained. The employer’s objections are overruled. The employer is not entitled to the return of its appeal deposits. The decision of the referee is unanimously affirmed. (March 3, 1960)

COMMENTS

This is an employer’s appeal and the decision is in accordance with Administrative Interpretation No. 2, quoted in the decision.




A-750-1517
Index No. 1290B-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 18, 1960

INTERPRETATION SERVICE – BENEFIT CLAIMS
PREVAILING WAGES
General

APPELLATE DIVISION DECISION

Berta Shotkin (1960); 10 AD 2d 738

Appeal Board Case No. 63,045-58

PREVAILING WAGES: UTILIZATION OF WAGES IN ALL INDUSTRIES

Generally, in determining the prevailing wage of an occupation common to all industries (Ass’t. Bookkeeper), surveys of wages paid to such workers in the various industries should be taken into account rather than considering only wage surveys in a particular segment of industry (utility establishments).

Appeal Board Decision

A decision was rendered by this Board on April 20, 1956, (Appeal Board, 53,998-56) affirming the decision of the referee dated December 29, 1955, overruling the initial determination of the local office disqualifying claimant from receiving benefits effective November 23, 1955 on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience. The Industrial Commissioner appealed from the Board’s decision to the Appellate Division handed down its decision reversing the decision of the appeal Board, and directed that the matter be remanded to the Appeal Board for further proceedings in accordance with the opinion of the Appellate Division (4 App. Div. 2d 924). On October 22, 1957 an order was entered in the office of the clerk of the Appellate Division of the Supreme Court for the Third Department reversing the decision of the Appeal Board and remanding the matter to the Appeal Board for further proceedings in accordance with the opinion of the Court.

The opinion of the Court, insofar as is herein material, reads as follows:

* * *

Per Curiam:

Furthermore, the classification of the claimant was a matter of controversy and the Board should have given the Industrial Commissioner full opportunity to present proof on that subject. It is true that the claimant’s skills were somewhat above those required for an assistant bookkeeper, as that position is defined in the Industrial Commissioner’s survey, but, as the Board recognized in its opinion, the claimant did not "possess all of the stated experience or various qualifications" for the position of Accounting Clerk, Senior, which the Board thought "more nearly match(ed)" the claimant’s previous experience and qualifications. The Commissioner offered additional proof on the question of the proper job classification but the Board declined to hear it.

Pursuant to the provisions of 624 of the Law, the Appeal Board on January 3, 1958 entered an order dated December 27, 1957, making the order of the Appellate Division, the order of the Appeal Board. In compliance with the provisions of the said order, the Appeal Board after giving due notice to all parties, placed this matter on its hearing calendar for disposition in accordance with the directions contained in the order of the Court.

A hearing was held before the Board at which claimant and representatives of the Industrial Commissioner appeared and were accorded a full opportunity to be heard.

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

Findings of Fact: Claimant has had more than 13 years experience maintaining the records and books of her employers’ businesses. Prior to filing for benefits, she was employed in her last job by a public utility concern for two years and seven months to September 30, 1955, at a terminal salary of $73 a week. Claimant lost this job when the firm was reorganized.

Claimant filed an original claim for benefits effective October 3, 1955 and was registered for employment. She was classified by the employment service as a bookkeeper III. On November 23, 1955 the employment office offered claimant referral to employment as an assistant bookkeeper (bookkeeper III) at a salary of $65 a week. She refused on the ground that the salary was too low. She desired at least $70 per week.

Claimant’s prior experience involved working independently. Her work was in accordance with standardized accounting practices and procedures. Her duties were those customarily performed by an accounting clerk, class A, entailing a minimum of supervision. Claimant prepared reports, both regular and special. Specifically, she prepared quarterly payroll reports for tax purposes, sales reports, accounts payable and accounts receivable. Claimant also analyzed and adjusted involved utility company reports dealing with rates and schedules. She audited all accounts payable, invoices and prepared payrolls in her last employment at the public utility establishment.

A survey made by the Bureau of Labor Statistics of the United States Department of Labor, of wages and salaries paid in various occupations in New York City in March 1955, covering manufacturing and non-manufacturing establishments employing 3057 workers in the category of clerks, (female) accounting, class A, reveals that the average weekly earnings in the claimant’s locality for public utility establishments was $76.50.

We find that the prevailing wage for similar work in the locality at the time of the offer was $76.50 per week as indicated in the Federal survey. On December 16, 1955 claimant, through her independent efforts, obtained employment at an initial salary of $75 per week.

Appeal Board Opinion and Decision: On the basis of claimant’s previous work record she was classified incorrectly as an assistant bookkeeper (bookkeeper III). In our opinion claimant’s experience and duties which she performed in her previous employments indicate that she should be classified as a clerk, accounting, class A (public utility). In any even claimant’s skills gained by wide experience are higher than those used as a standard in determining the occupational classification of assistant bookkeeper, (bookkeeper III). The employment service’s representative conceded at the last hearing before the Board that claimant’s skills gained by wide experience could fit the occupational classification of clerk, accounting, Class A, as set forth in the wage survey made by the Bureau of Labor Statistics of the United States Department of Labor in which the standard weekly earnings in public utility establishments were found to be $76.50. It is significant to note that the Industrial Commissioner contended (through the testimony of the Employment Service representative) that the classifications of bookkeeper III and clerk, accounting, class A are comparable. The Federal survey covers a much wider field as to the number of employees involved than does an occupational wage survey used by the insurance office as a guide made in October 1955. It covers 2072 employees and indicates that the median salary for bookkeeper III was $65 per week. We choose to rely on the Federal survey as our guide in determining the prevailing wage in the locality for a person with claimant’s training and experience. Had claimant accepted the offered employment, the maximum wage she could have expected to receive was $65 per week. This is at least 15 percent less than the rate prevailing in the locality for similar work, according to the Federal survey. In our opinion, the salary offered was substantially less than the prevailing rate. (Appeal Board 37,695-53)

Appellate Division Opinion and Decision: Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance appeals Board which affirmed the decision of an unemployment insurance referee, overruling an initial determination by the Industrial Commissioner, disqualifying the claimant from receiving benefits on the ground that she had, without just cause, refused employment for which she was reasonably fitted by training and experience.

The facts appear in our memorandum decision on an appeal (4 A.D. 2d 924) from an earlier board decision which held that the claimant had good cause to refuse an offer of employment as an assistant bookkeeper at $65 per week since, on the basis of her training and experience, she was entitled to classification as an accounting clerk, senior, the prevailing wage for which the board found to be $76.50 to $80 per week. We held that the "position of assistant bookkeeper tendered to the claimant was not unreasonably remote from the highest position for which her training and experience fitted her"; that the board should have received certain additional proof offered by the Industrial Commissioner on the question of the proper job classification; and we thereupon reversed the decision and remitted the matter to the board for further proceedings.

Upon remittal, additional proof was taken upon which the board found that claimant "should be classified as a clerk, accounting, class A (public utility)" for which the prevailing wage was found to be $76.50. This classification was of a grade lower than the classification of "accounting clerk, senior" to which the board’s previous decision had assigned her. The decision now appealed from overruled the initial determination of disqualification from benefits on the ground that the $65 salary offered "was substantially less than the prevailing rate." Clearly the board intended to quote the statute but there the prevailing rate referred to is that of "the wages *** offered", that is, in the new position; and a claimant may properly refuse if the wages are "substantially less favorable *** than those prevailing for similar work in the locality". (Labor Law §593, subd. 2, d.) The board seems to have reached the conclusion that the wages for the position offered were less than those prevailing for similar work on grounds which seem to us tenuous at best. First, it cites and finds "significant" certain testimony that the classification of assistant bookkeeper and of clerk, accounting, class A (without the addition "[public utility]") are "comparable" and then refers to a Federal survey indicating earnings in the latter position of $76.50 in public utility establishments, while ignoring the fact that the same survey indicated a prevailing wage of $66.50 for Class A accounting clerks in service institutions (such as the hospital in which the disputed position was offered) and an average of $69.50 for such clerks generally. While claimant had indeed been employed by a utility and had been paid $73, certainly in a case such as this, involving work of a nature utilized in all industries, the determination of prevailing rate under subdivision "d" is not to be reached upon the application of so narrow a test as that afforded by a particular industry; absent proof of some unusual or exceptional factor or condition.

Our conclusion on the prior appeal that the position tendered claimant "was not unreasonably remote from the highest position for which her training and experience fitted her" applies with even greater force to the slightly down-graded classification found by the present board decision; and is fortified, rather than the contrary, by the testimony cited by the board to the effect that the positions are "comparable".

We find no substantial evidence supportive of the decision.

Decision reversed and the initial determination of the Industrial Commissioner reinstated, without costs. (March 18, 1960)




A-750-1520
Index No. 810-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 25, 1960

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

APPELLATE DIVISION DECISION

(MATTER OF JOHN OMOLINO; 11 AD 2d 553

Appeal Board Case Number 67,648-58

FILING ADDITIONAL CLAIM – "OFF DAY" APPEARANCE

Reporting at the insurance office on a day of the week which precedes his regular assigned day and in which his additional claim is not accepted does not entitle a claimant to any credit for benefits in that week when he was instructed to return on his regular day but because of negligence, failed to do so.

Referee’s Decision: The referee sustained the initial determination of the local office holding claimant ineligible to receive benefits effective September 29, though October 5, 1958 on the ground that he failed to comply with registration requirements.

Appealed By: Claimant

Appeal Board Findings of Fact: Claimant, a setup man, filed a claim for benefits effective December 30, 1957. He returned to work on January 5, 1958 and worked to Friday, September 26, 1958 when he was laid off for one week. Claimant appeared in the local office on Monday, September 29, 1958 for the purpose of filing an additional claim for benefits His claim was not accepted and he was instructed to return on Friday, October 3 because that had been his assigned reporting day on his original filing. Claimant did not report at the local office on October 3. Claimant reported at the local office Monday, October 6. He returned to work that evening.

An initial determination was issued holding claimant ineligible for benefits effective September 29 through October 5, 1958 on the ground that he failed to comply with registration requirements.

Appeal Board Opinion and Decision: Our decision in Appeal Board, 65,918-58 is decisive of the issue in this case. There also the claimant’s attempted refiling on a day of the week preceding his regular reporting day was not accepted and the claimant failed to return to the local office in the week in question. The Board’s decision holding that claimant was entitled to have his claim made effective as of the date of the attempted fling reads in part as follows:

* * *In the instant case, it is undisputed that in the week for which claimant seeks to be credited with a refiling of his claim, he did visit the insurance office and applied for such refiling. He was at the insurance office on Tuesday, April 29, for that specific purpose. Notwithstanding the fact that claimant did not again report to the insurance office in that same week in accordance with the instructions given to him when he visited the insurance office on April 29, claimant may not be denied the right to refile his claim, nor may he be deprived of credit for his registered days of unemployment in that week. Under the provisions of the statute (Section 596), the Commissioner’s representatives are required to credit an applicant for benefits with the filing of his claim when application therefore is made. The Commissioner is authorized to promulgate regulations with respect to registration and reporting requirements but such regulations are valid only insofar as they implement the statutory provision. The regulations may not be so construed as to deprive an applicant for benefits of a right conferred upon him by statute. In pursuance of his authority, the Industrial Commissioner promulgated Regulation 40 pertaining to the filing of claims. It is provided in such regulation that an applicant for benefits shall file an additional claim "in the week for which he expects benefits if his claim has lapsed because of intervention of any week in which he accrued no effective days.* * *" It is further provided that such additional claim should be filed on the regular report day assigned to the applicant and that a claim so filed shall be deemed filed as of the first day of his unemployment occurring in that week and that if he is employed on his regular reporting day, the additional claim shall be filed on the next day of unemployment occurring in that week. The regulation specifically provides that a claim so filed "shall be deemed filed as of the first day of his unemployment occurring in such week," and that "if such requirement is not met, but an additional claim is filed subsequently in the same week, the claimant may not be credited with any days of total unemployment preceding the day on which such additional claim was filed." It is obvious from the language used in the quoted regulation that a claimant’s failure to file an additional claim on his regularly assigned reporting day does not result in his ineligibility to claim credit for all effective days in that week. The only effect of the regulation is that his failure to file on his regularly assigned reporting day deprives him of credit for the days of the week which precede his actual visit to the insurance office. The regulation makes reference to the filing of an additional claim on a day "subsequent" to the reporting day, but makes no reference to the effect of a report on a day prior to the assigned reporting day. Under these circumstances, there is not authority to deny to the claimant the refiling to which he was entitled when he reported to the insurance office on Tuesday, April 29. Since that was not his regularly assigned reporting day, he is not entitled to have his claim made effective on any day prior to the day of his actual visit. His visit on April 29 entitled him to a refiling effective April 29. (Underscoring supplied).

The initial determination of the local office is overruled. The decision of the referee is reversed. (February 18, 1959)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: Appeal by the Industrial Commissioner from a decision of the Unemployment Insurance Appeal Board which reversed the decision of a referee and overruled the initial determination of the Industrial Commissioner holding claimant ineligible to receive benefits for a six days’ period for failure to file his additional claim on the day assigned by the commissioner.

For the purposes of administering the Unemployment Insurance Law, the commissioner is given "power to make all rules and regulations." (Labor Law §596, subd. 1) and "such time" has been prescribed by the commissioner by regulations 40 and 41. Regulation 41 provides: "each claimant shall report and certify to his unemployment, at specified days and hours established for him by the unemployment insurance office"; and regulation 40 provides that any additional claim by a claimant "shall be filed on his regular reporting day assigned to him in accordance with regulation 41" and further provides that compliance therewith "may" be excused. Respondent does not contest the validity or reasonableness of the regulations which, indeed, and in view of the vast number of claims presented, appear necessary in order to assign times evenly through this week and to avoid the burden and confusion which would attend the appearance of an undue proportion of claimants on one particular day to be received by a staff provided for, and geared to a more equal distribution.

After a claim for benefits effective December 30, 1957, claimant worked from January 5, 1958 to Friday, September 26, 1958 when he was laid off for one week and in order to file his additional claim appeared at the local office on Monday, September 29. His claim was not accepted and he was instructed to return on Friday, October 3, since Friday had been his assigned reporting day upon his original filing. Claimant "forgot" to return on that day (the initial determination later finding this to be "negligence") and did not return on Monday, October 6, before returning to work on that evening. Under regulation 40 any claim timely filed, i.e., "on his regular reporting day", would "be deemed filed as of the first day of his unemployment occurring in such week." It seems clear that claimant’s appearance on Monday, September 29, was of no effect and that his failure to appear and file on Friday, October 3 deprived him of benefits for the otherwise effective days in that week; and that it would, of course, have been pointless for him to have appeared on the next succeeding Friday to file "as of the first day of his unemployment occurring in such week" since he was employed during that week. Decision reversed, without costs, and case remitted. (May 5, 1960)




A-750-1524
Index No. 1580B-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 28, 1960

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISREPRESENTATION
Penalty Period

Appeal Board Case number 74,176-60

ONE OR TWO OFFENSES, QUESTION OF

Wilful misrepresentation at the time of filing as to last day worked and the reason for termination of employment represents two offenses, each carrying a separate forfeiture.

Referee’s Decision: The initial determination of the local office holding that claimant wilfully made false statements to obtain benefits, by reason of which a forfeiture of 48 effective days was imposed as a penalty in reduction of claimant’s future benefit rights is modified by reducing the forfeiture to 24 effective days.

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 sewing-machine operator, refiled effective February 3, 1960. By initial determination, effective February 3 he was ruled ineligible for one day because of lack of total unemployment. Effective February 4 he was disqualified for 42 consecutive calendar days for voluntary leaving of employment without good cause. His rights to future benefits were ruled to be forfeited for 48 effective days because of wilful false statements made for the purpose of obtaining benefits, and he was ruled overpaid $22.50, which was deemed recoverable.

Claimant was employed on a seasonal basis for 27 and a half years by one employer. He has filed claims for unemployment insurance annually since the inception of the Law. He was laid off in December 1959, because of lack of work. He is a union member and customarily works at union piecework rates. He was referred to work by his union to another employer who was in contractual relations with his union at a union piecework rate, pending recall by his regular employer.

Claimant worked on February 1, 2 and for two hours on February 3 and voluntarily left his employment because he did not wish to continue working. He concedes that he could have continued working until the end of that week, through February 5. He anticipated that he would be recalled by his regular employer on February 8. He was not recalled until subsequent to February 18.

On February 4 claimant refiled his claim, at which time he contended that the last day that he had worked was February 2 and that he had left or lost his job on February 2 because of "temporary replacement." Claimant knew that he had last worked on February 3 and he knew that he had quit the job. On February 11 he certified to employment on February 1 and 2 only, and to total unemployment on every other day in the statutory week ending February 7.

Appeal Board Opinion and Decision: Although we have adapted the referee’s findings of fact, we conclude as a matter of law that the reduction of forfeiture days from 48 to 24 was erroneous.

We agree with the conclusion of the referee that claimant worked on February 3 and was, therefore, not totally unemployed on that day. We further agree with the referee’s conclusions that claimant voluntarily left his employment without good cause; that he wilfully made false statements for the purposes of obtaining benefits, when he stated, on February 4 and again on February 11 that the last day that he had worked was February 2; and when he further stated that the termination of that employment was involuntary. However, we do not agree with the referee’s conclusion that although claimant made three false statements on two different occasions, all related to the same offense and only one forfeit penalty of 24 effective days should be imposed.

The claimant made false statements with regard to two different facts. He falsely reported the reason for the termination of his job. He also falsely reported his employment status on February 3. These separate and disassociated acts resulted in two separate offenses committed for two different purposes; one to avoid disqualification for voluntary leaving of employment without good cause and two, to obtain benefits for total unemployment for a day on which claimant was employed. Each offense carried a separate forfeiture. Under the standards established by the Division of Employment and approved by the Board, the forfeiture is 24 effective days in an instance where a benefit payment results from the wilful misrepresentation and 20 effective days where no payment is actually made. In the instant case the two separate offenses resulted in a single benefit payment and therefore, the aggregate forfeiture should be 44 effective days.

The initial determination of the local office holding that claimant wilfully made false statements to obtain benefits, by reason of which a forfeiture of 48 effective days was imposed as a penalty in reduction of claimant’s future benefit rights, is modified by reducing the forfeiture to 44 effective days and, as so modified is sustained. The decision of the referee is modified accordingly and, as so modified is affirmed. (June 29, 1960)




A-750-1525
Index 755D.9
760A.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

JULY 1960

INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Restrictions of Employment
Days - Hours

COLLEGE STUDENT - RESTRICTION TO PART-TIME EMPLOYMENT

Claimant with a prior history of full-time employment who restricts himself to part-time employment because of college attendance is unavailable for employment within the meaning of the law.

A.B. 74,013-60

Referee's Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective February 8, 1960 on the ground that he was not available for employment is overruled.

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant, a laboratory technician and college student, filed for benefits effective December 28, 1959. Claimant had attended a college in 1958 for one year. During his second year, he secured daytime employment and attended college in the evenings. Between January and June, 1959, claimant had worked full-time as a laboratory technician. During the summer of 1959 he had worked as a counselor in a summer camp. Following this employment, he became re-employed as a laboratory technician and worked for two months until December 24, 1959. For three or four months during 1958, claimant had worked as a part-time luncheonette counterman in the evenings while attending college in the daytime.

Claimant re-entered college as a fully matriculated day student commencing with February 8, 1960. His school hours are Mondays and Wednesdays, 10: a.m. to noon, Tuesdays and Thursdays, 9:00 a.m. to 1:00 p.m., and Fridays, 11:00 a.m. to 3:00 p.m. Claimant admits that he cannot accept full-time employment in his usual occupation because it would conflict with his school program. His sole employment since February 8, 1960 was a temporary job as a part-time theatre usher for three days. Claimant's sole efforts to secure employment was to read the ads in the New York Times and to inquire of friends regarding work.

Appeal Board Opinion: We do not agree with the conclusions of the referee that claimant demonstrated a sustained attachment to the labor market by making reasonable and diligent efforts to secure work and that there was no proof that there are no opportunities for employment at hours which would not conflict with claimant's scheduled courses.

Since claimant restricts himself to the hours which will not interfere with his attendance at college, whatever work he may engage in, is subordinate to his purpose of completing his education. His major employment history is in full-time employment. His restriction to less than such full-time employment renders him unavailable for employment within the Unemployment Insurance Law. Our decision in Appeal Board, 12, 627-46 controls here.

The initial determination of the local office holding claimant ineligible to receive benefits effective February 8, 1960 on the ground that he was not available for employment is sustained. The decision of the referee is reversed. (7/8/60)




A-750-1526
Index No. 1320A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 28, 1960

INTERPRETATION SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Employment Subsequent to Dispute

Appeal Board Case Number 73,708-60

LOSS OF EMPLOYMENT DUE TO INDUSTRIAL CONTROVERSY, QUESTION OF

Claimant who has two jobs, one a full-time split shift and the other a daily part-time job, who loses his full-time job because of an industrial controversy and one month later after being laid off from his part-time job files a claim, is not disqualified for loss of employment because of an industrial controversy since claimant was employed daily and ineligible until he filed for benefits after being laid off from his last job.

Referee’s Decision: The initial determination of the local office suspending the accumulation of benefit rights by claimant during a period of seven consecutive weeks effective July 15, 1959 on the ground that he lost his employment due to an industrial controversy in the establishment in which he was employed is sustained.

Appealed By: Claimant

Findings of Fact: Claimant became employed as a porter in a restaurant in January 1959. He worked part-time hours on six days in a week and his wages were $30 weekly. In February 1959, claimant obtained employment in the open-hearth department of a steel manufacturer on a split shift basis. He continued to work at the restaurant six days a week during hours which did not conflict with his other employment. Claimant lost his employment at the steel mill on July 14, 1959 due to the national steel strike. He continued his employment at the restaurant until August 8, 1959 when he was laid off due to lack of work.

Claimant filed a claim for benefits effective August 10, 1959. His benefit rights were suspended for seven weeks effective July 15, 1959 on the ground that he lost his employment at the steel mill due to a strike.

Appeal Board Opinion and Decision: In sustaining the initial determination of the local office, the referee concluded that claimant was employed on July 15, 1959, because of the industrial controversy, and that the fact that he had other employment does not affect the result. We do not agree with the referee’s conclusion.

Despite the loss of his employment as a steelworker on July 14 claimant remained continuously employed through August 8, 1959. Had claimant suffered an ordinary layoff by the steel mill on July 14 his continued employment at the restaurant would bar any claim for unemployment insurance benefits on the ground that under the law he would not be totally unemployed. Had claimant at the time of such lay off left his restaurant employment, he would be chargeable with a disqualification for a voluntary leaving without good cause of the restaurant employment. By the same logic, claimant’s rights as of the date of his filing on August 10, 1959 must be determined on the basis of his employment up to the time of his loss of the restaurant employment. Section 592.1 of the Unemployment Insurance Law provides for a suspension of seven weeks for loss of employment due to a strike. Claimant continued to be employed after the strike began. When he filed for benefits on August 10, he was (totally unemployed) only because he lost his job in the restaurant. We, accordingly, hold that under the circumstances herein claimant did not lose his employment due to the steel strike. The initial determination of the local office is overruled. The decision of the referee is reversed. (July 8, 1960)

COMMENTS

The principle herein stated should be limited in its application to cases containing identical facts. That is, to cases where claimant worked simultaneously on two "every day" jobs and was not eligible for benefits until a layoff from his last employment. Such cases occur infrequently.




A-750-1527
Index No. 1410C-1
1750.3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 28, 1960

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

Appeal Board Case Number 73,779-60

LEAVING EMPLOYMENT ON DAY OF TERMINATION PRIOR TO QUITTING TIME TO KEEP WITHIN STATUTORY REMUNERATION LIMITATION

A claimant who deliberately foregoes the opportunity of earning additional wages during the balance of his last day of employment to keep within the statutory limitation for partial unemployment benefits, places himself without the scope of the provisions authorizing the payment of partial benefits and hence renders himself ineligible for benefits in that week.

Referee’s Decision: The revised initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days effective December 16, 1959 on the ground that he voluntarily left his employment without good cause is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, an automobile worker, worked eight hours on Monday, December 14, 1959 and earned $22.93. He was scheduled to work eight hours on December 15 on the shift which ended at midnight. That evening, claimant was told that he would be laid off temporarily at the end of his shift. Claimant requested and was given permission to leave at 11:42 p.m., 18 minutes before quitting time. As a result, his earnings for December 15 were $22.07, making a total of exactly $45 for the week. Claimant conceded that he would have continued to work until midnight on December 15 but he realized that had he done so, his gross earnings for the week would have been in excess of $45, the weekly limit prescribed for entitlement to benefits under Section 523 of the Unemployment Insurance Law.

Claimant refiled a claim for benefits effective December 16, 1959. His benefit rate was $45 weekly. He returned to work on December 21, 1959. If claimant’s earnings for the statutory week involved would not have exceeded $45, he would have been entitled to credit for two effective days that week, and a check at half his benefit rate.

The local office issued an initial determination disqualifying claimant from receiving benefits effective December 16, 1959 on the ground that he voluntarily left his employment without good cause. This determination was based upon the following:

Your leaving of employment prior to the end of the work shift on December 15, 1959 so that your earnings would not exceed $45 in the week ending December 20, 1959, thereby attempting to make yourself eligible for partial unemployment insurance benefits, is considered a leaving without good cause.

The referee overruled the initial determination. The Industrial Commissioner appealed.

Appeal Board Opinion and Decision: We agree with the referee’s conclusion that since claimant’s employment was definitely due to terminate, in any event, at the close of the work day on December 15, due to lack of work, his failure to complete the work day did not result in a voluntary leaving of employment without good cause within the purview of Section 593.1 of the Law (See Appeal Board, 61,771-59). However, the facts herein compel a modification of the initial determination.

Since it is conceded by the claimant that there was work for him during the balance of his last day of employment, which would have enabled him to earn more than $45 during that week, and that he deliberately refrained from earning such additional wages for the sole purpose of attempting to qualify for benefits for which otherwise he would be ineligible, the issue presented is whether the Law contemplates that a claimant may manipulate his employment and earnings to deliberately bring himself within its benefit provisions. We think not.

Section 501 of the Law to which we turn for guidance in the interpretation of its provisions, specifically provides that the unemployment insurance fund is to be used "for the benefit of persons unemployed through no fault of their own." Section 523, during the period here at issue, provided, in effect, that a person who had partial employment and earned more than $45 in any calendar week was neither totally nor partially unemployed, during that week, within the purview of the Law. Hence, such a person may not be credited with the accumulation of any effective days and is ineligible to receive even a partial benefit check. To countenance that which the claimant herein has attempted would negate and frustrate the entire scheme under which benefits have been provided for involuntary partial unemployment. The amendment of the Law to provide for partial benefits to those who meet the conditions set forth in Section 523 was designed to encourage workers to engage in whatever partial employment was open to them and to earn as much wages as possible. One who deliberately foregoes the opportunity of earning additional wages to keep within the limitation for partial unemployment thereby places himself without the scope of the provisions authorizing the payment of partial benefits and hence renders himself ineligible for benefits in that week.

The revised initial determination of the local office holding that claimant voluntarily left his employment without good cause is modified so as to hold claimant ineligible to receive benefits for the week involved. The decision of the referee is reversed. (July 5, 1960)

COMMENTS

  1. Since claimant left his job with permission 18 minutes before quitting time on the day that he was laid off temporarily, a voluntary leaving disqualification is not proper. Similarly, a claimant cannot be held unavailable for employment on that day.
  2. In every case where claimant voluntarily leaves his employment during the day on which he is to be terminated, local offices should ascertain whether the principle herein stated is applicable.



A-750-1529
Index No. 740.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

August 22, 1960

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Compulsory Retirement

Appeal Board Case No. 71,117-59 et al

AVAILABILITY: COMPULSORY RETIREMENT—UNION AGREEMENT

A union contract requiring compulsory retirement at a specified age does not represent a withdrawal from the labor market of workers "retired" under the contract and does not render them ineligible for benefits if they are ready, willing and able.

Referee’s Decision: The referee sustained the initial determination of the local office ruling claimants eligible to receive benefits effective various dates without disqualifying conditions, except as modified by the referee to make the initial determinations effective July 7, 1959 as to all claimants except claimants Hal, Maione and Peterson, and to that extent overruling the objections of the employer thereto. The employer further appeals from the decision of the referee filed February 3, 1960 sustaining the initial determinations of the local office holding the three claimants there involved, Strawberg, Armeli and Raucci, eligible to receive benefits effective various dates without disqualifying conditions and overruling the objections of the employer thereto. Claimant Gust Johnson appeals from the decision of the referee filed September 17, 1959 insofar as it modifies the initial determination of the local office holding claimant eligible to receive benefits effective June 1, 1959 without disqualifying conditions by making it effective July 7, 1959. Claimant Hitchcock appeals from the decision of the referee filed September 17,1959 insofar as it overrules the initial determination of the local office holding claimant eligible to receive benefits effective June 1, 1959 without disqualifying conditions and sustaining the objections of the employer.

Appealed By: The employer who made the statutory deposits.

Findings of Fact: The employer is a manufacturer of metal products in Jamestown. Claimants were employed at the employer’s factory in various capacities as production workers, metal workers, etc. The employer is in contractual relationship with a union representing claimants.

In June 1958, following negotiations between the employer and the union, an agreement was entered into for the establishment of a retirement plan. The agreement provided that employees were to be eligible for voluntary normal retirement at age 65, but must accept compulsory retirement at age 68. The matter was submitted to a union vote and was ratified by a majority of the members. On May 23,1959, a formal pension and retirement plan was promulgated to be effective June 1, 1959. Section 2, paragraph 3, of such agreement provides, in part, that "an employee must retire no later than the first day of the month following his 68th birthday." On June 1, 1959, when the plan was ready for operation, thirty-three employees who had already attained the age of 68 were compulsorily retired. Included among these were claimant, Falvey, who had last worked for the employer on April 17,1959 and who had been absent thereafter due to illness. Included also were claimants, Hall, Maione and Peterson who had been laid off by the employer for lack of work on March 2, 1959, September 4, 1958 and July 24, 1958, respectively. These layoffs were prior to the effective date of their compulsory retirement.

Twenty-one claimants here involved filed claims for benefits. Each of them receives a company pension. Nine of the claimants receive company pensions at the maximum rate of $30 monthly. The other claimants receive monthly pensions in varying amounts from $9.50 to $29.25.

The claimants who were retired as of June 1, 1959 filed claims for benefits, effective about June 1, 1959. Claimants, Strawberg and Armeli who were retired as of the first day of the month following their 68th birthdays filed claims for benefits, effective October 5, November 2 and November 9, 1959, respectively. Claimant, Raucci, who is 72 years of age had not worked for the employer since 4/24/59, due to illness. He file a claim for benefits, effective November 9, 1959. Initial determinations were issued by the local office holding claimants eligible to receive benefits effective the dates of their filing without disqualifying conditions. The employer protested on the grounds that claimants had voluntarily withdrawn from the labor market and it requested hearings. With respect to claimants, Hall, Maione and Peterson who had filed previous claims and were in benefit status prior to June 1, 1959, the employer protested the payment of further benefits after June 1, 1959 on similar grounds.

After counseling by the employment service, claimants sought employment at various factories and industrial establishments in Jamestown and adjoining areas. They applied for work not only in their usual occupations but for other types of employment, which they were capable of performing. No offers of employment were made to claimants by the employment office except in the case of claimant, Howard, who accepted referral as a paint sprayer but was not hired by the prospective employer. Claimants were unsuccessful in obtaining employment due to the factors of age and local employment conditions, except as stated below.

Claimant, Gust Johnson, obtained employment in the weeks ending September 27,1959 and the weeks ending January 3, January 10, January 17 and March 6, 1960. The last of such employment was in Tuxedo, New York. He receives a monthly pension of $13.

Claimant, Nyman, was employed from January 11 to February 9, 1960 on a temporary job provided by the employer herein on a non-union basis. He was compelled to give up such employment due to a temporary illness. He receives a monthly pension of $30.

Claimant, Falvey, has been employed steadily since March 15, 1960 as an automobile salesman on a commission basis. He receives a monthly pension of $11.75.

Claimant, John E. Anderson, obtained work in the weeks ending September 13 and September 20, 1959 as a carpenter’s helper. He has sought odd carpentry jobs continuously. He receives a monthly pension of $30.

Claimant, Hall, obtained one day’s work painting windows and doors. He continued to seek work until sometime in April 1960 when he was hospitalized due to an accident. He receives a monthly pension of $30.

Claimant, Hitchcock, worked two weeks in July 1959 picking cherries, during four weeks in September and October 1959 picking grapes and apples and one week in November on a farm. This claimant receives a monthly pension of $10.75. Since filing for benefits, he had diligently sought employment on farms and in factories in both the Pennsylvania area where he resides and in the adjacent New York areas.

Appeal Board Opinion and Decision: The referee, in his decision filed September 17, 1959, disposed of the respective claimants’ cases as follows: He modified the initial determinations as to all claimants except Peterson, Maione and Hall, by ruling that such remaining claimants were eligible for benefits effective July 7,1959 instead of effective June 1, 1959. As to claimants Peterson, Maione and Hall, the referee sustained the initial determinations of the local office holding them eligible to receive benefits effective the respective dates of their filing therefor because they had been laid off from employment by the employer prior to their attaining the compulsory retirement age and had manifested their attachment to the labor market upon filing for benefits following such layoffs. In addition to modifying the initial determination affecting the claimant Gould by ruling him eligible for benefits effective July 7, 1959, the referee modified the initial determination of the local office by holding claimant Gould ineligible for benefits from July 27 through August 2, 1959 on the ground that he was not available for employment because he was absent from the area for personal reasons. Finally, the referee overruled the initial determination of the local office which held claimant Hitchcock eligible for benefits effective the date of his filing therefor and ruled that claimant was not available for benefits because he did not seek work diligently. The referee’s conclusion as to the claimant Hitchcock was justified by the testimony given by that claimant before him. However, at the hearing before the Board additional testimony was received from claimant Hitchcock who established that, not only did he seek work diligently, but he actually obtained work outside of his job classification for an appreciable period of time.

The basis of the referee’s modification, changing the effective date of eligibility from June 1 to July 7, 1959, of all of the claimants involved in his decision filed September 17,1959 as recited above was that each of such claimants did not commence to exert efforts to seek employment until after they had been counseled by the local office to do so.

In his decision filed February 3, 1960 the referee ruled that claimants Strawberg, Armeli and Raucci, who reached the compulsory retirement age of 68 after June 1, 1959, and filed claims for benefits effective October 5, November 2, and November 9, 1959, became eligible for benefits upon filing therefor because immediately therewith, they exerted efforts to obtain employment.

The employer appeals from the decision of the referee filed September 17, 1959 insofar as the referee ruled that each claimant, except Hitchcock and Gould, was eligible for benefits effective July 7, 1959 and thereafter. The employer appeals from the decision of the referee filed February 3, 1960 ruling that claimants Strawberg, Armeli and Raucci, were eligible for benefits effective the respective dates of filing therefor on October 5, November 2, and November 9, 1959.

In support of its appeals, the employer maintains that it was required to bargain collectively with is employees under the provisions of the National Labor Relations Act and that pursuant thereto, the pension and retirement plan was effectuated in a written contract after collective bargaining therefor by the employer and the union representing all of the claimants herein. The employer contends that the legal effect of the consummation of this collective bargaining agreement is that the claimants, through their union representatives, agreed, in advance, that upon reaching the age of 68 each would voluntarily withdraw from the labor market and from the employment by the employer. The employer argues that when the several claimants were released from its employ in accordance with the provisions of the collective bargaining agreement, they withdrew from the labor market.

The employer relies upon Matter of Naylor, 306 N.Y. 794 affirming 281 App. Div. 721, reversing Appeal Board, 30,727-52, Matter of Rakowski, 276 App. Div. 625, reversing Appeal Board, 18,773-49, Matter of Gerlach, 284 App. Div. 1081, affirming Appeal Board, 40,803-53, and Matter of Chichipas, 3 App. Div. 2d 880, affirming Appeal Board, UCV217-55. Each of the foregoing cases involved eligibility during a "vacation period," wherein the Courts construed the union’s consent to the shutdown of the respective employers’ plants during a vacation period, as consent in advance by each employee in the bargaining unit to his temporary withdrawal from the labor market, notwithstanding that he might not receive any vacation pay during such shutdown because of the lack of sufficient seniority to qualify for vacation pay.

In each of the cited cases, there was involved, only a limited withdrawal from the labor market during a vacation shutdown, while the employer-employee relationship continued during and after such period. The facts involved in such cases are markedly different from the facts in the instant case, wherein the employer contends that there was a permanent withdrawal from the labor market from the time the employee attained the mandatory retirement age of 68. Here the compulsory retirement had the effect of completely severing the employer-employee relationship. Upon such severance the "retired" employee became eligible to accept immediate employment elsewhere, on a permanent basis. Unlike the instance of temporary unemployment produced by a shutdown for vacation purposes, the claimants herein were not due to resume work for this employer at any subsequent time.

The employer’s contentions, if accepted, would have the effect of adding to the Unemployment Insurance Law, basis for ineligibility or disqualification not now included in the Law. No agreement, even one between a union and an employer can change, modify or add to the statutory provisions. A claimant’s eligibility for benefits is spelled out by the provisions of the Law and cannot be bargained away. Among other requisites to establish eligibility for benefits, a claimant must prove that 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. Section 591.2 of the Law so provides. The employer’s contention that all of these claimants withdrew from the labor market implies that the claimants were not ready, willing and able to work. We have repeatedly ruled that proof of readiness, willingness and ability to work may be manifested by diligent efforts to find work. In these cases, the local office has satisfied itself that each claimant came within the provisions of the Unemployment Insurance Law by demonstrating availability for employment. The evidence herein as to some of these elderly claimants actually obtaining work in a highly competitive labor market is most significant in proving their availability for work. Moreover, the employer’s contention that none of the claimants made a bona fide return to the labor market is negated by the credible and convincing proof adduced herein which establishes that a number of these claimants obtained subsequent employment at various trades and occupations after diligent search therefor. This employer’s rehiring of claimant Nyman to work at a job other than the one at which he previously worked establishes that the employer recognized that this claimant had not withdrawn from the labor market.

It is understandable that these elderly claimants, having worked for a long span of years (Many of them for this very employer for the major portion of their working lives), did not know how to go about seeking employment until they received the counseling which the local office is required to give to elderly workers. See Matter of Bourne, 282 App. Div. 1, affirming Appeal Board, 31,741-52, where the Appellate Division, in its interpretation of availability affecting older workers, said:

This case suggests the rising pressure of an aging population upon public unemployment insurance facilities; but the economic and social questions it raises are somewhat broader than the legal point which brings it here.

It is a matter of growing importance to the community to continue to utilize the skills and experience of its older people; and as the life span expands the problem becomes progressively more pressing. The Unemployment Insurance Law is intended to protect and continue the working activity of all members of the community.

It is not merely for the protection of young workers but also of workers of advanced years who remain in the labor market. We take unusual care in this decision not to suggest or to imply that age alone necessarily results in non-availability in the labor market. Availability is the statutory test; but it must be applied individually to the facts of each case as the administrator sees them.

Age, linked to a lack of physical or mental capacity to work, or age coupled with restrictions which cut down greatly the possibility of employment, may fairly result in a finding of non-availability. But an able aged man is an available man if he has remaining abilities that can be sold on the market. When such a man is willing to meet the market his employment is covered by the statute.

In affirming the determination in this case we hold merely that on this record it was within the power of the Board to find that the restrictions imposed by claimant himself kept him aloof from the market.

In the instant cases, we find that there were no restrictions which kept claimants "aloof from the market" and we further find that each claimant was, in fact, ready, willing and able to work.

To accept the employer’s contention that the pension and retirement plans must be construed as an agreement by claimants, through their union, in advance, to withdraw from the labor market upon reaching the age of 68, would do violence to the purposes of collective bargaining as they affect rights to unemployment insurance. The union cannot, by its act, deprive the individual member thereof of rights granted by social legislation, such as unemployment insurance to which he is entitled upon satisfying the statutory requirements therefor.

The most that can be said in the employer’s behalf is that the claimants agreed through their union to retire from its employ upon reaching 68 years, but the claimants did not agree in their collective bargaining agreement to withdraw forever from the labor market.

We hold that these claimants did not surrender their rights to unemployment insurance by reason of the provisions of the collective bargaining agreement executed on their behalf by their union Section 595 of the Unemployment Law provides that a claimant’s benefit rights are inalienable, that waiver agreements are void, and that no agreement, by an employee, to waive his rights to unemployment insurance shall be valid.

Moreover, we hold that the cases cited by the employer concerning vacation shutdowns are not controlling herein. Significantly, following the rendition of such decisions, the Legislature enacted specific legislation concerning vacation periods in Chapter 387 of the Laws of 1958, effective March 26, 1958. A new subdivision 3 was added to Section 591 of the Unemployment Insurance Law. Paragraph 5(e) of Section 591.3 provides

Any agreement express or implied by a claimant or by his union or other representative to a plant or department shut down for vacation purposes is not of itself to be considered either a withdrawal by such employee from the labor market during the time of such vacation shut down or to render him unavailable for employment during the time of such vacation shut down. (underscoring supplied)

The reasoning underlying this statutory provision affecting vacation shutdown, pursuant to union consent, is applicable to the facts in this case. Paraphrasing the portion of the statute cited, we say that the agreement by claimants or by claimants union, to compulsory retirement at the age of 68 is not, of itself, to be considered either a withdrawal by such claimants from the labor market following their compulsory retirement, or to render them unavailable for employment following such retirement.

In Campbell Soup Co. v. Board of Review (100 A (2d) 287), the New Jersey Supreme Court considered whether a compulsory retirement, pursuant to a union agreement, was a voluntary leaving of employment without good cause for the purposes of unemployment insurance. Judge Brennan (now Justice of the United State Supreme Court) said:

If the inquiry is isolated to the time of termination, plainly none of the claimants left voluntarily in the sense that on his own he willed and intended at the time to leave his job. On the contrary, each claimant resisted his termination and left against his will only upon his employer’s insistence that the contract obligation gave neither of them any alternative but to sever the relationship.

* * *

The Legislature plainly intended that the reach of the subsection was to be limited to separations where the decision whether to go or to stay lay at the time with the worker alone and even then, to bar him only if he left his work without good cause. The claimants here did not choose of their own volition to leave the employ of Campbell Soup Company when they were separated. They left because they had no alternative but to submit to the employer’s retirement policy, however that policy as presently constituted was originated. Their leaving in compliance with the policy was therefore involuntary for the purposes of the statute.

In Warner Co. v. Board of Review and Gianfelice, 153 A (2d) 906, the claimant Gianfelice had been continuously employed by the employer since January 1, 1918. The collective bargaining agreement between the employer and claimant’s union provided an employee retirement plan. Under this plan, when an employee reached the age of 68, he could remain in the service of the company only with the employer’s consent. The claimant became 68 on January 14, 1956. Although he wished to continue working for the employer, the employer refused its consent and he was retired. Both issues of voluntary leaving and availability were involved. The Pennsylvania Supreme Court, in reversing its Superior Court, which by a 3-2 decision had denied benefits to the claimant, said:

The major premise of the Superior Court that an employee is bound by his union’s agreement with his employer as expressed in a collective bargaining agreement, is unexceptionable on its face. However, in the present context the Superior Court has used this premise to disqualify persons for benefits under the Unemployment Compensation Law who otherwise would be eligible. We do not believe that this result is correct.

Were Gianfelice not covered by the collective bargaining agreement involved here, the company could have dismissed him at its pleasure. NLRB v. Jones and Laughlin Steel Corporation, 301 U.S. 1, 45 (1936); Polk v. Steel Workers Organizing Committee, 360 Pa. 631, 634, 62 A 2d 850 (1949). Were he so discharged, however, he would be entitled to unemployment compensation. Conversely, absent the agreement, Gianfelice could have quit at his pleasure but would have been ineligible for unemployment benefits as a "voluntary quit." This latter situation led to a proper denial of benefits in Campbell Unemployment Compensation Case, 180 Pa. Superior Ct. 74, 117 A. 2d 799 (1955).

Does the fact that a collective bargaining agreement is present change these considerations under the Unemployment Compensation Law? Such agreements usually restrict the employer’s right to dismiss at will until the employee reaches a certain age; they thus protect the employee from arbitrary dismissal. It would be anomalous to say that, in gaining this protection against his employer, an

employee has lost a benefit which he otherwise would receive from the State – the right to receive unemployment benefits if dismissed – on the theory that he has voluntarily agreed to quit. The pressures of the collective bargaining process are too complex to permit this over-simplified theory to govern a determination here. They would require and inquiry into each case to determine the position of each side at the bargaining table, and even then a clear cut answer would undoubtedly not be forthcoming.

This is one reason why the collective bargaining agreement should not control in determining the eligibility of a retired employee for unemployment compensation; rather, the factual matrix at the time of separation should govern. This was the position taken by Judge (Now Justice) Brennan in Campbell Soup Co. v. Board of Review, 13 N.J. 431, 100 A 2d 287 (1953) wherein the New Jersey Supreme Court found the claimant eligible for benefits. Viewed in this light, the questions here become simply (1) did Gianfelice cease working voluntarily as a matter of fact, and (2) was Gianfelice available for work thereafter? Since the answers on the record as (1) no, and (2) yes, Gianfelice is entitled to benefits.

The Court then pointed out that similar to our Section 595, the Pennsylvania statute provides that no agreement by an employee to waive, release, or commute his rights to compensation or any other rights thereunder shall be valid and concluded that a statutorily expressed public policy cannot be modified by private agreement. The opinion continues:

These analogous examples illustrate the principle we here apply. Where a statute of the Commonwealth expresses a public policy designed to alleviate a condition of possible distress among the public or a segment thereof and explicitly proscribes waiver of the benefits of the act, no private agreement, however valid between the parties, can operate as such a waiver. The provision of the agreement under which Gianfelice had to retire, while legitimate conditions of employment and binding between Gianfelice and the Warner Company, cannot thwart a clearly expressed state statute under which Gianfelice is entitled to benefits.

These decisions of the highest Courts in New Jersey and Pennsylvania, support our conclusions and reasoning herein. There are no Appeal Board precedents on the precise question involved herein. However, in a parallel situation, we arrived at a conclusion similar to that reached here.

In Appeal Board, 64,956-58, claimant had worked as an inspector for her employer for about five years. She obtained a maternity leave effective July 23, 1957. The contract between the employer and the union, which was the certified bargaining representative of the employees, including claimant, provided that maternity leaves or absences would be granted to women employees who have credited service with the employer and that such leaves are granted for a period not less than nine months or not more than one year. Claimant’s baby was born December 9, 1957. Claimant thereafter requested that she be permitted to return to work before the expiration of the leave fixed in the union agreement. The employer refused to accede to her request and indicated it had no objection to claimant accepting work elsewhere. Claimant did seek work elsewhere following her filing for benefits on February 3, 1958. The local office ruled her eligible for benefits without disqualifying conditions. The employer objected thereto pursuant to the union agreement. The claimant returned to work with the employer on April 23, 1958 which was the earliest date she could do so under the union agreement. The period in issue was that between February 3,1958 when she filed for benefits and her return to work on April 23, 1958. In our opinion affirming the decision of the referee we said:

* * *

The employer urges that the union contract is a condition of the employment and that it precludes claimant’s receipt of unemployment insurance benefits during the period of the maternity leave. This is not a case of vacation shut-down such as occurred in Matter of Naylor, 306 N.Y. 794, aff’g. 281 App. Div. 721 rev’g. appeal Board, 30,727-52. Thus, claimant’s eligibility for benefits must be determined in the light of the statutory provision that "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." (Unemployment Insurance Law, Section 591.2) This section does not bar the payment of benefits to claimant. She was capable of working during the period in issue. She was ready and willing to work in her prior employment, but was prevented from doing so because the employer would not take her back before the expiration of the leave. She was ready, willing and able to work in other employment. She was available for employment.

On appeal, the employer contends that implicit in the granting of the leave of absence to claimant under the union contract, was the understanding that claimant would be replaced on her job. It is argued that by requesting the leave of absence claimant effected her withdrawal from the labor market for a period of at least nine months, the minimum period of the leave and that her attempt to return to its employ prior to the end of her leave was of no avail as it was contrary to the provisions of the union agreement.

We hold that the referee was correct. The fallacy of the employer’s argument is that it seeks to condition claimant’s right to unemployment insurance benefits solely on her employability with it and no other employer. There is no dispute that claimant was willing to work elsewhere and that she sought such work. In the absence of any showing that the bar against working for the employer until April 23, 1958 adversely affected claimant’s availability for employment, the employer’s objection has no validity.

The right to benefits is governed by the Unemployment Insurance Law and not by private agreement. To sustain the employer’s position here would be to violate Section 595 of the Law wherein it is provided that "no agreement by an employee to waive his rights…shall be valid." Claimant left her employment with good cause on July 23, 1957 on maternity leave but withdrew from the labor market. She returned to the labor market and so certified when she filed for benefits, February 3, 1958. She met the statutory tests of capability and availability then and thereafter and was eligible for benefits.

The local office determination that claimant was eligible for benefits, was correct.

Upon their compulsory retirement, the claimants herein were awarded company pensions ranging from $9.50 per month to $30 per month, which is the maximum. While it is immaterial for unemployment insurance purposes to consider the amount a retired employee receives pursuant to a company pension plan, the fact that these claimants were entitled to so little monies upon their retirement must be taken into consideration in determining whether or not claimants would, in fact, withdraw from the labor market in reliance upon the monies they would receive under this pension plan. The answer is obvious. The mere receipt of these meager sums did not convert claimants’ compulsory retirement into a withdrawal from the labor market.

We find the employer’s objections without merit and we hold that the claimants are entitled to unemployment insurance benefits subject to the modifications herein.

The initial determinations of the local office holding claimants, Hall, Maione, Peterson, Hitchcock, Strawberg, Armeli and Raucci eligible to receive benefits, effective the dates of their respective filings, without disqualifying conditions, are sustained. The objections of the employer are overruled.

The initial determinations of the local office holding claimants, Gust Johnson, Gould, Nyman, Gullotti, Shepard, Falvey, Axel C. Carlson, Albert Carlson, Edstrom, Jones, Howard, Adolph Anderson, Nelson, Benson, Lowell, John E. Anderson, and John Anderson eligible to receive benefits, effective dates of their filing, without disqualifying conditions, are modified to make such determinations, effective July 7, 1959, and only to the extent of the period from June 1 to July 6, 1959, the employer’s objections are sustained.

The initial determination of the local office holding claimant, Gould, ineligible to receive benefits effective July 27 to August 2, on the ground that he was not available for employment is sustained.

The employer is not entitled to the return of its appeal deposits.

The decision of the referee fled September 17, 1959 as to the claimant Hitchcock is reversed, otherwise that decision is affirmed and the entire decision is modified accordingly and as so modified is affirmed. The decision of the referee filed February 3, 1960 is affirmed. (July 26, 1960)




A-750-1532
Index No. 1505C-2
1540.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 15, 1960

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISREPRESENTATION
Refusal of Employment

Appeal Board Case Number 74,809-60

WILFUL MISREPRESENTATION, QUESTION OF

Falsely certifying to the Insurance Office that no employment was refused constitutes a wilful misrepresentation even though claimant had previously informed the Placement Office of the refusal.

Referee’s Decision: The initial determination of the local office holding that claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of 24 effective days was imposed as a penalty in reduction of claimant’s future benefit rights is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a general office clerk, filed a claim for benefits effective July 13, 1959. Claimant reported regularly thereafter and certified weekly to total unemployment through the week ending January 17, 1960. On January 4, 1960 the employment office referred claimant to employment. At first claimant indicated her willingness to accept the job but later in the day she telephoned the employment office and advised that she had decided not to pursue the referral because of the travel time involved. A form was prepared on January 4 by the employment office setting forth claimant’s refusal of the employment; the form was forwarded to the local office on January 29.

Claimant next reported at the local office following her refusal on January 15, 1960. Claimant was asked at that time whether she had refused any offer of employment and she replied in the negative. Claimant was aware that such statement was false. She did not reveal her refusal of the January 4 offer because she felt that she had good cause for rejecting the offer on the ground of its location. Claimant contended further that her statement to that effect given to the employment office on January 4 was sufficient notice to the local office.

Appeal Board Opinion and Decision: We do not concur in the conclusion reached by the referee that claimant did not wilfully make a false statement to obtain benefits because the Industrial Commissioner, through the employment office, was in full possession of the information concerning the refusal and because claimant was justified in her belief that she had made a full disclosure.

Claimant was under an obligation to furnish true and correct information to the local office. On January 15, 1960 she knowingly gave false information to such office in connection with her claim. Claimant’s previous notification of her refusal made to the employment office does not excuse the false statement at the insurance office, which statement resulted in the payment to her of benefits to which she was not entitled (Appeal Board, 53,475-55). Claimant thus wilfully made a false statement to obtain benefits.

The initial determination of the local office holding that claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of 24 effective days was imposed as a penalty in reduction of claimant’s future benefit rights, is sustained. The decision of the referee, insofar as appealed from, is reversed. (August 30, 1960)

COMMENTS

This case should be differentiated from cases where an entry in the identification booklet, which the claimant presented, reflects the referral to the job. (A.B. #73,553-60; Serial A-750-1512 (revised)).

In the instant case, the claimant did not submit to the Insurance Office an identification booklet with such an entry. Thus, the Insurance Office was not furnished any information, except the claimant’s oral statement which was false. In the other case it can be said the claimant furnished conflicting information, one false and one correct, and the Insurance Office had the opportunity to resolve that conflict. Failing to have done so, the false statement cannot be seized upon to impose a forfeiture penalty.




A-750-1533
Index No. 1715-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 11, 1960

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Attendance at School or Training Course

Appeal Board Case Number 75,953-60

VOLUNTARY LEAVING EMPLOYMENT TO ATTEND SCHOOL

Leaving employment to enter college or school or to otherwise improve one’s education is without good cause within the meaning of the Unemployment Insurance Law.

Referee’s Decision: The referee overruled the initial determination of the Out-of-State Resident Office disqualifying claimant from receiving benefits for 42 consecutive calendar days effective March 31, 1960, on the ground that he voluntarily left his employment without good cause.

Appealed By: Industrial Commissioner

Findings of Fact: We have reviewed the evidence adduced before the referee and find that the following findings of fact made by the referee are amply supported by the evidence and are hereby adopted as the findings of fact of the Board:

* * *

Claimant, classified as a spray painter, filed effective April 11, 1960, in Santurce, Puerto Rico. By determination effective March 31 he was disqualified from receiving benefits for 42 consecutive calendar days because of voluntary leaving of employment without good cause.

Claimant last worked in his customary occupation for a New York employer from February 1958 through March 30, 1960, when he voluntarily left available work to return to Puerto Rico for the purpose of receiving religious training.

Claimant is a believer in a new religious creed founded in Puerto Rico. He was required to return to Puerto Rico if he desired to receive training because there is no available school in New York. Upon arriving in Puerto Rico, claimant commenced his training to become a preacher.

Appeal Board Decision and Opinion: Although we have adopted the findings of fact of the referee, we do not agree with the conclusion reached by him based thereon that claimant left his employment voluntarily with good cause. We have consistently held that the leaving of employment to enter college or school or to otherwise improve one’s education is without good cause within the meaning of the Unemployment Insurance Law (UCV-322-58; UCV-276-57; Appeal Board, 30,538-52 and Appeal Board, 44,915-54). Consequently, notwithstanding that claimant’s purpose in returning to Puerto Rico may have been commendable, he was not provided with good cause to leave his job. The initial determination of the Out-of-State Resident Office disqualifying claimant from receiving benefits for 42 consecutive calendar days effective March 31, 1960, on the ground that he voluntarily left his employment without good cause, is sustained. The decision of the referee is reversed. (September 22, 1960)

COMMENTS

This decision makes it quite clear that as a general principle a claimant who leaves employment to enter school does so without good cause. Some exceptions in the past and reported in the Interpretation Service – leaving to undertake a national defense course; veterans who upon discharge enter a school under the Readjustment program – are now largely a historical interest only.




A-750-1536
Index No. 780A.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

January 19, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
At Time of Unavailability

Appeal Board Case Number 77,331-60

REFUSAL DISQUALIFICATION NOTWITHSTANDING UNAVAILABILITY EFFECTIVE PRIOR THERETO

An unavailability disqualification for self-imposed non-compelling reasons does not preclude the imposition of an additional disqualification for refusal of employment even if the unavailability predates the refusal.

Appeal Board Decision

This is an application by the Industrial Commissioner, pursuant to Section 534 of the Unemployment Insurance Law, to reopen and reconsider the Board’s decision dated October 24, 1960 and filed in the Department of Labor on November 1, 1960 (Appeal Board, 76,101-60), which modified the decision of the referee filed August 17, 1960 sustaining the initial determination of the local office disqualifying claimant from receiving benefits effective June 20, 1960 and on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience.

Findings of Fact: Claimant filed for benefits effective April 11, 1960. Her work history was as follows: For about 15 years she worked as a packer in a candy factory in Hoboken, New Jersey. Her terminal earnings were about $80 per week, on a piecework basis. She decided to give up factory work for reasons of health. She then worked for about five and one-half years in the auditing department of a department store. Performing clerical work. She earned $60 per week for a 40-hour week. Claimant is single. She lives with her married sister. When her sister moved from New York City to Mount Vernon, claimant was compelled to change her residence also. After commuting from Mount Vernon to Manhattan for several months, her employer released her.

On June 2, 160, claimant was offered employment as a laborer doing assembling work in a greeting card establishment in White Plains. The job paid $1.30 per hour, as in her last employment. Finally, she objected to the cost of transportation which was 84 cents per day. Claimant has been and is under medical care for conditions attending a change in life and for a nervous condition.

The evidence at the Board hearing, established that claimant’s physician had advised her to avoid factory work, because it had an adverse affect upon her health and increased her nervousness and tension. Claimant relied upon the advice of her physician and therefore preferred to continue office work. However, she did little to seek such employment in Mount Vernon. She preferred not to seek employment in other areas in Westchester because she was a stranger there. Moreover, she imposed a restriction of a minimum of $60 per week for clerical work in Mount Vernon. The prevailing wages for such work in Mount Vernon are substantially less than $60 per week. Through the employment service, claimant obtained employment on November 27, 1960 as a sales clerk in a department store in Yonkers at $1.10 per hour. However, after one days’ employment she was unable to resume work because of illness

Appeal Board Decision and Opinion: In our original decision (Appeal Board, 76,101-60), we concluded that because claimant was not available for employment from a date prior to her refusal of the job offered to her, she should not be charged with an additional disqualification for refusal of employment without good cause. We therefore modified the referee’s decision by sustaining the initial determination of unavailability and overruling the disqualification for refusal of employment without good cause. We cited Appeal Board, 54,519-56 in support of our position.

The basis of the application by the Industrial Commissioner to reopen and reconsider the Board’s decision is that it was not consistent with precedents of the Appeal Board on the subjects involved.

We believe there is merit to the Commissioner’s contentions. In Appeal Board, 54,519-56 the claimant was a part-time worker who, because of the need for caring for her children, could not commence work before 9:30 a.m. She refused an offer of employment which required her to report to the employer at 9:00 a.m. We modified the initial determination there disqualifying claimant from receiving benefits on the ground that she had refused employment without good cause by holding that the proper determination was that claimant was not available for employment, effective the date of the refusal of employment. This cited case is distinguishable from the present case as will be developed below.

Appeal Board, 72,033-59 is directly in point here. There the claimant refused an offer of employment without good cause. The local office issued two initial determinations on the two separate grounds of unavailability and refusal of employment both effective the date of refusal of employment. We held that claimant’s unavailability stemmed from conditions which were self-imposed in connection with her job-seeking efforts and wage demands. We concluded that under such circumstances, the paramount issue was that of refusal of employment, notwithstanding that the disqualification therefor was made effective simultaneously with the ruling of unavailability.

In an instance where a claimant refuses employment for reasons which indicate unavailability for employment, it is necessary first to examine the facts which produce the condition of unavailability, irrespective of whether a ruling of ineligibility is made effective the date of the refusal or prior thereto. If, as in Appeal Board, 54,519-56, the unavailability arises because of compelling domestic or personal circumstances then, availability is the paramount issue and the refusal of employment provides further evidence of such unavailability.

However, a claimant who refuses employment without good cause may not avoid the disqualification provided for in Section 593.2 of the Law for refusal, merely because the claimant has produced her unavailability by conditions self-imposed by her in connection with seeking and obtaining employment.

Where the unavailability is caused by compelling domestic or personal circumstances, there is a situation over which the claimant may not have complete control. Such claimant may be willing to work in the normal labor market but is not ready or able to work because of such domestic or personal circumstances. Such claimant remains unavailable until the situation which caused her inability to work is cured. But, a claimant who renders herself unavailable by imposing conditions or restrictions, which prevent her obtaining employment cannot with impunity refuse an offer of employment which meets the statutory requirements. Such claimant has control of the situation which produces her unavailability. If it served her purpose, she could avoid work by imposing conditions to produce her unavailability whenever suitable work was offered and then re-establish eligibility for benefits by removing the conditions at times when no specific offers are made. The statute permits no such manipulation. The clear mandate of the statute is that one who refuses employment without good cause shall be disqualified until he meets the specific conditions of subsequent employment set forth in the Law. It is not contemplated that one who refuses suitable employment solely because the offer does not meet his self-imposed, unrealistic or unreasonable conditions shall be eligible to reinstate his claim without the required subsequent employment.

In the instant case, the record clearly establishes that claimant was not available for employment because of the self-imposed restrictions which we regard as unrealistic and unreasonable. This status of unavailability continued from June 20, 1970 until claimant removed her restrictions as to wages and location of employment as evidenced by her acceptance of a job as a sales clerk in Yonkers at $1.10 an hour.

Now, in view of the circumstances which produced claimant’s unavailability, it becomes necessary to determine whether claimant refused employment without good cause. Since claimant left factory work because it had an adverse affect upon her health, and the proof indicates that claimant had received competent medical advice to avoid such work, she had good cause to refuse the offered job. Moreover, the offered work was not similar to claimant’s substantial employment of five and one-half years as a clerical worker. Therefore, we hold that this was not a suitable job offer in the light of claimant’s work history and because of claimant’s physical condition. Under all of the circumstances herein, claimant had good cause to refuse the offer of employment.

The application of the Industrial Commissioner is granted and the decision rendered in Appeal Board, 76,101-60 is rescinded.

The initial determination of the local office holding claimant ineligible to receive benefits on the ground that she was not available for employment effective June 20, 1960 is sustained. The ineligibility continued until claimant removed her restrictions as evidenced by her accepting employment on November 2, 1960.

The initial determination of the local office disqualifying claimant from receiving benefits on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience is overruled. The decision of the referee is modified accordingly. (December 21, 1960)

COMMENTS

  1. This decision is important. It changes concepts regarding refusal disqualifications during unavailability non-compelling reasons. Previously a refusal disqualification was not made while a prior unavailability determination was still in effect on the date of the refusal.
  2. There is no change from prior practices of issuing two primary disqualifications, unavailability and refusal, when both disqualifications are effective the same day.

    This decision, therefore, clarifies the following two points:

    a. It is proper to impose, effective simultaneously, two primary disqualifications one for refusal and another for unavailability when the unavailability results from non-compelling reasons.

    b. A disqualification for refusal of employment is proper under such circumstances, even though the unavailability determination is effective prior to the date of the refusal.

    The new principle reflected in this release renders obsolete special bulletin File No. A-710-40.

  3. There is no change if the unavailability results from compelling reasons. No disqualification can be imposed for a refusal even if it occurs on the first day of unavailability.



A-750-1539
Index No. 1195-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 6, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Criminal Acts

Appeal Board Case Number 76,294-60

QUESTION OF FELONY; EFFECT OF SIGNED STATEMENT IN LOCAL OFFICE

A document prepared by a claims examiner and signed by a claimant in connection with his claim for benefits does not represent a signed "statement admitting that he (claimant) has committed" a felony within the requirement of Subdivision four of Section 593 of the law, and a disqualification as provided in that subdivision can, therefore, not be imposed on the basis of such document.

Referee’s Decision: The referee overruled the initial determination of the local office disqualifying claimant from receiving benefits for a period of 12 months effective May 27, 1960, on the ground that he lost his employment as a result of an act constituting a felony in connection with his employment.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant was employed as a butcher in a meat-packing plant for about 18 months until he was discharged on May 26, 1960. On the day mentioned, some of his fellow workers were making sport of claimant and ridiculing him. He pleaded that they stop teasing him. When they refused to do so, claimant, who was then holding a butcher’s steel hone, became enraged and struck one of his fellow workers with the tool. The co-worker who received the blow suffered a cut on his chin, which required sutures. No criminal charges were preferred against claimant by reason of the aforesaid incident.

Claimant filed a claim for benefits effective May 30, 1960. On June 15, 1960, he signed the following statement at the local office with respect to the circumstances under which his employment was terminated:

The Boss fired me 5/26/60 because I was fighting with another man. This man would always called (sic) me names. I had warned him a number of times to stop before I lost my temper. And the foreman warned us about this. The last day this man (the other worker) started calling me names again. I got angry and I hit him on his face. The foreman heard the commotion, told the boss and he fired me. He did not fire the other man. On 5/31 I put in a complaint to the union – Frank the delegate. I worked there 16 months and never had any arguments before. I hit the man with a steel knife sharpener and he hurt his chin. He was sent to the hospital. The police were called.

The local office construed the above statement as a signed statement by claimant admitting that he had committed a felony.

Appeal Board Opinion and Decision: The referee overruled the initial determination on the theory that the statement signed by claimant did not contain an admission of all of the elements necessary to establish the commission of felonious assault. While we are in accord with the result at which the referee arrived, we do not accept this reasoning.

The question which is here presented is whether a statement prepared by a local office representative, and signed by the claimant, purporting to contain a summary of an insurance interview, with respect to the circumstances surrounding the termination of the employment, is sufficient to subject claimant to the drastic penalty of denying benefits for an entire year. We think not.

As the referee pointed out in his decision, the Governor, in approving the enactment of Section 593.4 of the Law, explained its purpose by stating that:

(4 "provides that a convicted or admitted felon who has lost his employment as a result of a job connected act constituting a felony shall not receive unemployment benefits" (McKinneys’ Session Laws, (1960) page 2040).

In our view, a claimant who has neither been indicted nor convicted should not be characterized as a "felon" solely on the basis of a statement signed by him in connection with his claim for benefits, particularly since there is no provision for, according to the claimant, the usual constitutional safeguards against self-incrimination. To hold otherwise would imply that the Legislature contemplated that unemployment insurance claims examiners who are authorized to issue initial determinations, should be charged with the responsibility of indictment. We believe that such was not the intention of the Legislature and that it was not contemplated that those charged with the responsibility of administering the Unemployment Insurance Law or adjudicating disputes arising thereunder should pass judgment with respect to whether an applicant’s recital of the circumstances surrounding the termination of his employment contains all of the various elements necessary to sustain a charge of a felony under the Penal Law of this State or of any other state in which the claimant may have been employed. The difficulty of determining whether a particular statement is sufficient to establish the commission of a felony as distinguished from another degree of the same crime, which would be merely a misdemeanor, emphasizes the conclusion at which we have arrived.

The initial determination disqualifying claimant from receiving benefits for 12 months effective May 27, 1960, on the ground that he lost his employment as a result of an act constituting a felony in connection with his employment, is overruled. The decision of the referee, insofar as appealed from, is affirmed. (December 16, 1960)

COMMENTS

The rule should be strictly limited to admissions in a "Summary of Insurance Interview" or other document prepared by a Division staff member. The decision does not necessarily hold that other signed statements made by a claimant cannot be considered. It follows that, if the claimant has neither been convicted nor indicted and the Summary of Insurance Interviews the only "admission," the case need not be referred for advice whether the disqualification applies.




A-750-1540
Index No. 1605C-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 1, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Last Employment, Question of

Appeal Board Case Number 77,075-60

VOLUNTARY LEAVING WITHOUT GOOD CAUSE ONE OF TWO SIMULTANEOUS EMPLOYMENTS

Claimant is subject to disqualification when she leaves employment without good cause (to avail herself of pension rights) even though she continued to work at a part-time job two or three nights a week since, under such circumstances, the part-time employment was not her last "terminated" employment for the purpose of a voluntary leaving disqualification.

Referee’s Decision: The referee overruled the initial determination of the local office disqualifying claimant from receiving benefits effective May 23, 1960 on the ground that she voluntarily left her employment without good cause.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, 63 years of age, filed a claim for benefits effective June 13, 1960. She was employed full-time for 36 years until April 29, 1960 as a switchboard operator. For the last 15 years, she had a second job at which she worked two nights a week. On April 29, 1960, claimant voluntarily retired from her full-time employment because she found that her duties had become too difficult. She filed a claim for and is receiving social security benefits. Claimant continued to work at her part-time job for two or three nights a week.

Appeal Board Opinion and Decision: The referee concluded that claimant did not voluntarily leave her last employment because she had other employment (the part-time job) before filing for benefits. However, he concluded, claimant’s leaving her full-time employment to retire indicated a withdrawal from the labor market. We are not in accord with the referee’s disposition of this case.

We have held that a claimant has good cause to leave his employment in order to retire and avail himself of his pension rights or of his social security benefits. However, as we pointed out in Appeal Board, 61,891-57:

* * * where a claimant has not withdrawn fully from the labor market, but has left his job to collect social security benefit or to protect his pension rights and is willing to accept employment which will not jeopardize his rights to such benefits we have held that such leaving of employment was without good cause.

Here, claimant has filed a claim for benefits and indicated that she is available for employment. She has also continued to work at the part-time job subsequent to leaving her full-time employment, all of which may be construed as some proof of claimant’s availability for employment. Accordingly, claimant has not fully withdrawn from the labor market. Under these circumstances and in accordance with our prior rulings, we hold that claimant’s leaving of the full-time employment was without good cause.

The initial determination of the local office disqualifying claimant from receiving benefits effective May 23, 1960 on the ground that she voluntarily left her employment without good cause is sustained. The decision of the referee is reversed. (January 27, 1961)

COMMENTS

In cases covered by this principle a question is presented as to whether the continuing part-time employment may be used in determining whether claimant "has subsequently worked in employment of not less than three days in each of four weeks or earned remuneration of at least two hundred dollars" (Section 593.1). As a matter of policy it has been decided that such continuing work is the type of employment that may be used in terminating the disqualification within the meaning of the law.




A-750-1541
Index No. 1260F-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 13, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Part-time, Offer of

Matter of Scranton, 12 NY 2d 983

PART-TIME WORK YIELDING LESS THAN BENEFIT RATE

Refusal of part-time employment (18 hours) spread over a four-day period in a statutory week is with good cause when claimant’s earnings for such work is less than the benefit rate to which he is entitled for a full statutory week of unemployment.

Appeal Board Decision Case No. 79,057-61

On January 10, 1961, the Board rendered a decision reversing the decision of the referee, which overruled the initial determination of the local office disqualifying claimant from receiving benefits effective August 8, 1960, on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience. The decision of the Board was filed in the Department of Labor on January 17, 1960. (Appeal Board, 76,952-60).

Thereafter the Board, on its own motion, determined to reopen and reconsider its decision pursuant to the provisions of Section 534 of the Labor Law. The Board considered written statements submitted by the claimant and by the Industrial Commissioner.

Findings of Fact. Claimant, a claims clerk, had worked full-time for the Division of Employment from February 17, 1958 to May 18, 1960 in a temporary position. Her final salary was $3,780 per annum. She was released because of a reduction in staff.

Claimant filed a claim for benefits effective May 16, 1960. On August 8, 1960, claimant was offered re-employment on a part-time basis for the same work at $2.11 per hour, for 18 hours a week. She was to work four and one-half hours on each of four days and could select morning or afternoon work. Claimant refused the offered employment. Several other claims clerks were recalled for part-time work in addition to claimant.

Claimant’s net pay for 18 hours of work would have been less than her benefit rate of $35 per week.

Appeal Board Decision and Opinion: In our original decision, we reversed the decision of the referee on the authority of Matter of Krieger, 279 App. Div. 681, reversing Appeal Board, 25,001-50. In that case and in Matter of Gadd, 278 App. Div. 1035, reversing Appeal Board, 23,389-50, it was held that refusal of part-time employment solely because of a desire for full-time work is without good cause. In each of such cases, however, the employment offered would have enabled the claimants to accumulate credit for partial unemployment benefits. Accordingly, in Matter of Krieger, supra, the Court adverted to the provisions for partial benefits.

Upon further review of the matter, we are satisfied that the facts in the instant case, are distinguishable from each of the foregoing cases in that here, claimant could not qualify for any partial unemployment benefits. By working for part of each of four days in a week, claimant could not accumulate any effective days and, therefore, her earnings from the part-time employment would not be supplemented by any unemployment compensation. Moreover, in the absence of any partial benefits, acceptance of the offered employment would result in the receipt by claimant of less money than she would have received if she were totally unemployed. In view thereof, that which we said in Appeal Board, 69,000-59 is here applicable. In that case we held that a claimant had good cause to leave part-time employment which, even when supplemented by partial unemployment insurance benefits, would result in a total weekly income in an amount less than his benefit rate. In so holding, we said:

* * *

Of course, not everyone may, with impunity, quit a job because it is part-time work. Due notice must be taken of the provisions of the Law for partial benefits. (See Matter of Krieger, (supra), but this claimant’s part-time employment, even when supplemented by partial benefits, was not enough to maintain him. He realized less money while keeping his job that he would have received if totally unemployed. In this connection it is noteworthy that in Connecticut the Law provides that:

. . .work or self-employment shall not be deemed suitable unless the administrator finds that it may reasonably be expected to yield remuneration at a rate greater than the individual’s benefit rate for total unemployment. . . (General Statutes Section 7508(1)).

The absence of such a statute in this State does not require disqualification. In appeal Board, 10,242-43, the Board discussed what is now Section 593.2(d) of the Law. This section provides that wages substantially below prevailing furnish good cause for refusing work. The Board called the section "a shield against the unreasonable disqualification of benefit claimants," and quoted with approval from the Social Security Year Book, 1940, Page 42, issued by the U.S. Social Security Board as follows:

. . .It marks an area within which claimant is protected from disqualification and does not operate to disqualify a worker who finds himself beyond its boundaries. Even though a worker cannot find refuge within that area, a tribunal must consider all other relevant factors in determining whether the work refused is suitable work, if, for example, the question is whether the wages are so low as to make the work unsuitable for the claimant, the fact that the rate offered may not be below the rate prevailing for similar work in the locality is not necessarily conclusive against the claimant; there is still a duty upon the tribunal to determine whether other factors, such as the difference between claimant’s prior earnings and the wage offered, caused the work to be unsuitable for the claimant.

In Appeal Board, 60,566-57, a claimant whose hours were cut so that her earnings were reduced to $40-a-week take-home pay was held to have quit with good cause. The Board said:

To have remained in the employment for an indefinite period would have resulted in extreme hardship. The employment was unsuitable for claimant in view of her normal earning capacity, current living expenses and obligations, and history of full-time employment. (See Appeal Board, 65,489-58)

In the instant case, for claimant to have remained in his part-time employment would have resulted in extreme hardship to him in view of his earning capacity, expenses and obligations and history of full-time employment. It was no longer suitable employment. . .

* * *

We recognize the fact that the intent of the unemployment Insurance Law is to assure that involuntarily unemployed workers will receive a weekly amount commensurate with their average weekly earnings (Section 590.7). It is apparent that the Legislature recognized that the benefit rates established by Law represent the minimum amounts required to effectuate the purposes for which the Law was enacted. Thus, to disqualify a person from receiving benefits because of his refusal to accept employment which would result in a diminution of the amount which has been established as his minimum requirements, would serve to defeat the purposes of the Law.

Upon our reconsideration of the facts and circumstances herein, we conclude that, for the reasons set forth above, claimant had good cause to refuse the offer of part-time employment.

The decision of the Board dated January 10, 1961 (Appeal Board, 76,952-60), is rescinded.

The initial determination of the local office disqualifying claimant from receiving benefits effective August 8, 1960, on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience is overruled. The decision of the referee is affirmed. (March 16, 1961)

COMMENTS

  1. In some instances the offered part-time employment may be for less than 4 days a week in which event claimant may be entitled to a partial benefit payment. In such cases, if claimant’s potential partial benefit payment and part-time earnings exceed his weekly benefit rate, a refusal of the part-time employment under this principle is without good cause.




A-750-1542
Index No. 1690-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 13, 1961

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

Appeal Board Case Number 78,477-61

ELECTION TO RETIRE IN ORDER NOT TOFORFEIT SUBSTANTIAL RIGHTS

An elderly claimant, who exercises an option to retire so that he does not forfeit substantial benefits in life insurance arrangements, leaves with god cause when continuance on the job would result in a substantial financial sacrifice to him and would drastically reduce the protection afforded to his family.

Referee’s Decision: The referee overruled the initial determination of the local office disqualifying claimant from receiving benefits effective September 1, 1960, on the ground that claimant voluntarily left his employment without good cause.

Appealed By: Employer

Findings of Fact: Claimant worked as a general warehouseman for a large chain of grocery stores from July 1, 1939 to August 31, 1960. His final pay was $102.40 per week.

Under the employer’s employment practices, claimant was eligible to retire as of September 1, 1959, as of which date, he had reached his 65th birthday. Claimant was then asked by his employer if he desired to continue to work for another year. Claimant elected to remain in employment with the provision that he could retire on the first day of any month during the ensuing year. On February 9, 1960, the employer requested claimant to postpone his retirement from September 1, 1960 to September 1, 1961. Claimant then elected to retire as of August 31, 1960.

Claimant made this election for a very compelling and economic reason. Prior to September 1, 1960, the life insurance arrangements affecting the claimant were as follows. He was covered by a $5000 policy under group insurance. Claimant paid for this insurance at a group rate, which was $3 per month. In addition, claimant had the protection of a $2000 life insurance policy for which the employer paid the premium in full and without contribution from the claimant.

Effective September 1, 1960, the insurance arrangements were changed by the employer drastically. From that date on, claimant would have lost the benefit of the $5000 policy under the group rate but would have been permitted to convert it to an individual premium rate at age 66. Furthermore, the $2000 life insurance protection furnished by the employer was reduced to a $1500 death benefit. The employer’s representative conceded that the cost of converting the $5000 policy from a group rate to an individual rate would have been prohibitive at claimant’s age. In summary, if claimant retired before September 1, 1960, he would have the benefit of $7000 worth of life insurance, out of which sum he would receive the protection of $2000 worth of insurance without payment of any premium and would have the further protection of a $5000 policy at a very low group rate. Had he continued to work after August 31, 1960, and then lost his employment by discharge or otherwise, his insurance protection might have been reduced by as much as $5500 because he would then only be entitled to the protection of the reduced policy amount of $1500.

Under these circumstances, claimant decided to retire as of August 31, 1960. He thereupon became entitled to a monthly pension of $34.69, out of which $3 was deducted each month to pay for the group insurance on the $5000 policy. Claimant also applied for old age benefits and is entitled to $119 per month. When interviewed at the local office, he evidenced a willingness to forego the social security benefits if he obtained a full-time job. After filing for benefits, effective September 19, 1960, claimant diligently sought employment. No issue has been raised by the local office, the employer or the Industrial Commissioner on appeal that claimant was not available for employment.

Appeal Board Opinion and Decision: The referee in overruling the initial determination disqualifying claimant from receiving benefits because he voluntarily left his employment concluded that claimant had good cause to leave his employment. The referee reasoned that by remaining with this employer, claimant would have forfeited substantial benefits in the protection afforded him by the life insurance arrangements. The referee further held that in view of claimant’s advanced age, the relinquishment of his rights to such substantial insurance protection would have worked a great hardship on him and that the continuation of the full insurance coverage after leaving the job would have necessitated a substantial and excessive outlay of premiums. We concur with the decision of the referee on these specific ground and we add the following:

Claimant indicated clearly that he wanted to work by not exercising his option to retire at the age of 65. He continued to work beyond that age for a year and only left his employment when to continue therein would have resulted in a substantial financial sacrifice to him and would have drastically reduced the protection afforded to his family.

We observed in many decisions that Section 593.1(a) does not spell out in detail what constitutes good cause to voluntarily leave employment. It is, therefore, our responsibility to interpret and construe the legislative intent by considering each case on its own facts to determine whether or not good cause exists.

Thus in Appeal Board 69,980-59 we held that a claimant had good cause to refuse employment which would have broken her record of continuous employment in establishments under the jurisdiction of her local union and would therefore have prevented her from availing herself of the benefits of the retirement plan of her local union five months later and would have required additional employment for two more years.

Our reasoning in the aforesaid case applies to the facts herein. Also see Appeal Board 60,566-57 and 75,489-59, wherein we held that leaving of employment was with good cause when the situations resulted in a drastic reduction in earnings to amounts which did not constitute a living wage.

We, therefore, conclude that claimant had good cause to leave his employment when he did, because continuation therein would have worked extreme hardship on claimant to the detriment of himself and his family.

The initial determination of the local office disqualifying claimant from receiving benefits effective September 1, 1960, on the ground that he voluntarily left his employment without good cause is overruled. The decision of the referee is affirmed. (March 8, 1961)




A-750-1543
Index 1460G-3
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

May 4, 1961

Interpretation Section- Benefit Claims
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without work Work- Other

Appeal Board Case Number 78,848-61

RECEIPT OF PAYMENT FOR "SHAPING-UP" OR "STANDING-BY"

A claimant who does not render actual services is totally unemployed although he receives "shape-up pay" or "stand-by pay" for reporting or standing by at the employer's premises for possible work assignment.

Referee's Finding of Fact: A hearing was held at which claimant and representatives of the Industrial Commissioner appeared and testified. Claimant, a cement mixer, refiled a claim effective October 17, 1960. By initial determination he was ruled ineligible for the day October 19 because of lack of total unemployment and his rights to future benefits were reduced by 20 effective days because of wilful false statements to obtain benefits.

Claimant is a member of a labor union. In employment subject to the union agreement claimant receives $3.50 an hour or $28 for eight hour day, and paid at time and a half rate for overtime work. In addition thereto, the agreement provides for a shape-up and stand-by payment in the event claimant is called for work in the morning but is not assigned to any work. In the latter event, he receives $5.25 for standing by. On October 19, claimant was requested to stand by. On October 21, he worked a full day plus two and a half hours overtime. On October 26, claimant mailed a certification for benefits for the week ending October 23, and therein stated he had only worked on Friday, October 21, and that his earnings for that entire week were $33. He received his wage check on October 27. His earnings for the week ending October 23 were $46.38. Claimant did not look at the wage check and turned it over to his wife without knowing what his earnings were for that week. He forgot the stand by wage for October 19 when he made the certification and that he estimated his earnings to be $33 for the one day he certified that he had been employed in that week. When interviewed at the insurance office on November 10, claimant again contended that he had only worked on October 21 in the week ending October 23 and that he had earned about $33 for the day. However, later that day after claimant had called the employer, he communicated with the insurance examiner and conceded that he earned over $46 in that week.

Referee's Opinion and Decision: Claimant was not employed on October 19, 1960, and the stand by payment to him for that day did not constitute remuneration for employment. Appeal Board, 60-159-57, 58,936-57, 58,053-56. Therefore, claimant did not make a wilful false statement to obtain benefits. The initial determinations are overruled.

Appealed By: Industrial Commissioner.

Appeal Board Opinion and Decision: After a review of the record including testimony and evidence adduced before the referee and due deliberation having been had thereon, and having found that the referee's findings of fact and opinion are fully supported by the record, and that no errors of fact or law appear to have been made, the Board adopts the findings of fact and the opinion of the referee as the finding of fact and the opinion of the Board. The decision of the referee is unanimously affirmed. (March 23, 1961)

COMMENTS

The principle as reflected in this decision applies to cases where a claimant "shapes up" at the employer's establishment or "stands by" for a limited length of time for possible work assignment and receives a payment which does not exceed a few hours wages. It does not apply to other situations such as, for instance, the case of an actor who is engaged as an understudy, receiving therefor a stipulated amount of money, and who "stands by" without rendering actual services.




A-750-1545
Index 1010-5
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

May 10, 19661

Interpretation Service-Benefit Claims
HEARINGS AND APPEALS
Hearing, Right to

Appeal Board Case Number 79,949-61

TIMELY APPEAL, QUESTION OF-EMPLOYERS OBJECTIONS TO LOCAL OFFICE DETERMINATION AS A RESULT OF RECEIPT OF FORM IA 96

An employer who failed to request a timely hearing upon receipt of the original local office determination allowing benefits, is not entitled to a hearing on the same issue upon receipt of a determination in the form of a Notice of Experience Rating Charges (Form IA 96)

Appeal Board Decision

This is an application by the employer herein, pursuant to Section 534 of the Unemployment Insurance Law, to reopen and reconsider the Board's decision filed in the Department of Labor on February 15, 1961, affirming the decision of the referee filed in the Department of Labor on December 2, 1960, ruling that an initial determination holding that claimant was eligible to receive benefits without disqualifying conditions remained in effect because of the employer's failure to make a timely protest thereto (Appeal Board, 78,037-60).

On March 31, 1961, the employer made its application herein and in connection therewith the Board considered the reasons advanced by the employer in support of its application and a memorandum submitted in behalf of the Industrial Commissioner and after deliberation, the Board determined to grant the application of the employer for a reopening and reconsideration of its decision in Appeal Board, 78-037-60.

Findings of Fact: claimant, a punch press operator, refiled for benefits effective July 4, 1960 after having been separated from his employment by the employer herein. The insurance office representatives inquired into the facts and circumstances surrounding the termination of such employment and in connection therewith, the employer notified the insurance office representatives that it had discharged the claimant "because of high rate of absenteeism." The insurance office representatives were satisfied, after investigation of facts, that claimant's absences were due to compelling circumstances and that claimant did not deliberately provoke his discharge. Accordingly, on August 4, 1960 an initial determination was issued holding that the claimant was eligible to receive benefits without disqualifying conditions. On the date of the issuance of such initial determination, a notice of the issuance thereof was mailed to the employer herein. Endorsed on such notice to the employer was a statement that "the evidence submitted fails to show that the claimant by any wilful act provoked his discharge." The employer gave no indication of any disagreement with the aforesaid initial determination within the period of 30 days from the date notice of the issuance thereof was mailed to it. Accordingly, benefits were paid to the claimant and, upon the issuance of benefit checks to the claimant, notices of the charges to the employer's account were mailed to it.

On September 23, 1960, the employer received a notice of a charge against its account for the benefits paid claimant. Thereafter, on October 12, 1960, the employer protested the charge and, for the first time, indicated disagreement with the initial determination holding that claimant was eligible for benefits without disqualifying conditions. It contended that claimant should have been disqualified for having voluntarily left his employment by provoking his discharge. It further contended that it had failed to request a referee's hearing within 30 days following the mailing of the notice of the initial determination on August 4, 1960 due to "reasons which were strictly clerical in nature."

OPINION: The referee held that the initial determination of eligibility without disqualifying conditions remained in effect because the employer failed to protest the initial determination within the time allowed by law and, therefore, it was barred from raising the issue for the first time after the charge was made against its account. Upon the employer's appeal, we adopted the referee's findings of fact and opinion and affirmed the decision. In its application for a reconsideration of our decision, the employer points out that our decision is in conflict with a prior decision of the Board in Appeal Board, 51,745-55.

The contention of the employer that our decision which is being reviewed (Appeal Board, 18,037-60) is in conflict with Appeal Board, 51,745-55 is correct. However, upon our review of the law, particularly in the light of the decisions of the Court in Matter of Ferraioli, 7 App. Div. 2d 819, reversing Appeal Board, 59,665-59 and Matter of Adinolfi, 10 App. Div. 2d 393, reversing Appeal Board, 61,241-57, we are constrained to abandon the principle enunciated in Appeal Board 51,745-55.

In the last cited case the Board held that an employer was not bound by the limitation set forth, in Section 620.1(a) of the Unemployment Insurance Law and was not precluded from contesting an initial determination of claimant's eligibility without disqualifying conditions notwithstanding its failure to make protest until after the issuance of a notice of experience rating charge against its account. That decision was predicated on the theory that Section 581.1(e) of the Law superseded the time limitation contained in Section 620.1(a) of the Law and, in effect, extended the employer's time to protest such an initial determination. At the time of rendition of the aforesaid decision, the Law required a deposit by an employer who protested such an initial determination but no deposit was required when the employer's protest related to an experience rating charge. Significantly, the requirement for such mandatory deposits has been repealed by the Laws of 1959, Chapter 223, effective April 1, 1959. Thus, from the effective date of the amendment to the statute an employer need merely request a hearing in order to obtain a review of the initial determination ruling on the claimant's immunity from disqualification.

In Matter of Ferraioli, supra, the Court held that a referee was without jurisdiction to inquire into the merits of a case if the protest were not made within the time limited under the provisions of Section 620.1(a). In effect, the Court ruled that that section of the Law provided for a "statute of limitations" and that the failure to make a timely protest could not be excused. The Court held that the initial determination of the Industrial Commissioner becomes final if the claimant does not request a hearing within the time prescribed in Section 620.1(a) of the Law. (also see Matter of Adinolfi, supra)

The cases reviewed by the Court involved late protests by claimants. However, the same rule applies with respect to employers. An employer whose account is subject to an experience rating charge for benefits paid to a claimant is a party who is affected by the initial determination. Section 620.1(a) specifically provides that "a claimant…or any other party affected by such determination may , within 30 days after the mailing or personal delivery of notice of such determination, request a hearing." Accordingly, if there is no protest to an initial determination within 30 days following its issuance, it becomes final and an employer who is a party affected by the initial determination becomes bound thereby and may not attack that initial determination when the experience rating charges which flow as a matter of course are made against its account. A contrary ruling would enable the employer to unduly impede or delay the administration of the Law and the payments of benefits to unemployed workers. If an employer were permitted to defer its protest until after its received notice of an experience rating charge, overpayments of benefits would necessarily result.

Nothing which is contained in Section 581.1(e) of the Law requires the result sought to be achieved by the employer herein. The notice of experience rating charge constitutes "… a determination of the priority of such charge and the payment of benefits on which such charge is based." Under the provisions of Section 620.2 of the Law, an employer may protest such determination, but such protest can only bring up for review those matters which have not been theretofore finally and conclusively established. Thus, within the statutory period after the issuance of notice of an experience rating charge, an employer may protest the charge against his account on the ground that his account is not the one to be charged with the payment of such benefits, or on the ground that during the specific period for which such benefits were paid, the claimant was ineligible for benefits because of unavailability, incapability, lack of total unemployment, or for any other reasons which may have occurred during those specific periods. However the disqualification provided for in Section 593.1 of the Law becomes effective immediately upon the filing of the claim following the claimant's separation from his last employment and continues indefinitely thereafter until the claimant had engaged in subsequent employment to the extent set forth in the statute. Accordingly, it is contemplated by the provisions of Section 620.1(a) that when an employer receives notice of the initial determination with respect to that issue, the time within which he may make protest thereto commences to run from the date of the issuance of such notice. That the failure of the employer herein to make such protest stemmed from a clerical error is or no consequence since there is no authority for excusing its default (Matter of Ferraioli, supra).

It is pertinent to note that the Law makes provision for a review of an initial determination in the event the Industrial Commissioner obtains new or corrected information which satisfies him that there was an error in the original determination. In that event, the Commissioner is authorized to issue a new determination within one year from the date of the issuance of the original initial determination. However, that is not the case here. The employer did not submit to the Industrial Commissioner any information other than that which it submitted prior to the issuance of the original determination, and the Industrial Commissioner has not issued any revised or superseding initial determination.

We therefore, conclude that the employer, by its failure to protest the initial determination within 30 days of August 30, 1960, became bound by the initial determination that claimant was eligible to receive benefits without disqualifying conditions and that such initial determination was final with regard to that issue.

Decision: The application of the employer for the reopening and reconsideration of the decision in Appeal Board, 78,037-60 is granted and the said decision is hereby rescinded. The initial determination ruling claimant eligible to receive benefits without disqualifying conditions remains in effect. The decision of the referee is affirmed. (April 28, 1961)




A-750-1549
Index No. 1645A-8
NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 8, 1961

Interpretation Service-Benefit Claims
VOLUNTARY LEAVING OF EMPLOYMENT
Following Spouse

Appeal Board Case Number 78,484-61

FOLLOWING SPOUSE: COMPELLING REASON, QUESTION OF -- ILLNESS OF CHILD

If a claimant quits his job in order to move to the locality to which his wife had gone because of the child's illness, he is not subject to the disqualification under the "following spouse" provision of the law, even if his quitting for this reason occurs several months after his wife and child had moved, since his leaving was due to compelling circumstances, other than merely following his spouse, in that the well being of his ill child required his physical presence.

Referee's Decision: The initial determination of the Out-of-State Resident Office disqualifying claimant from receiving benefits effective July 20, 1960, on the ground that he voluntarily left his employment to follow his spouse to another locality 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 counterman, filed effective July 25, 1960. By initial determination effective July 20 he was disqualified for voluntary leaving of employment in order to follow his spouse to another locality. Claimant resided with his wife and three children, aged five, four and four months, in New York City. In 1959, claimant's four year old son became seriously ill. He was hospitalized for 20 days. The physician advised that this son be removed to a warm climate for cure. Claimant thereupon sent the child with his wife and the other children to Puerto Rico. He remained in New York City. After several months in Puerto Rico claimant's wife reported that the ill son had improved. Claimant thereupon decided to make a permanent home in Puerto Rico and quit his job in order to move there.

Appeal Board Opinion and Decision: We agree with the referee's conclusion that the disqualification imposed by section 593.1(b) does not apply, because claimant did not voluntarily leave his job to follow his spouse to another locality. In Appeal Board, 79,951-61A we pointed out that, if the proof indicates that the leaving of employment is due to compelling circumstances which constitute good cause within the purview of Section 593.1(a) of the Law, the disqualification provided for in Section 593.1(b) does not apply merely because, as a consequence of the leaving, the claimant joins his spouse. Our aforesaid decision in Appeal Board, 79,951-61A is hereby incorporated herein by reference. We find that in the instant case claimant's voluntary separation from his employment was due to compelling circumstances in that the well being of his child required his physical presence in Puerto Rico. He therefore left his employment with good cause within Section 593.1(a) of the Law and the disqualification provided for in Section 593.1(b) is inapplicable. The initial determination of the Out-of-State Resident Office disqualifying claimant from receiving benefits effective July 20, 1960, on the ground that he voluntarily left his employment to follow his spouse to another locality is overruled. The decision of the referee is affirmed. (May 26, 1961)




A-750-1550
Index No. 1640-A4
1740A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 26, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Wages – Insufficient

APPELLATE DIVISION DECISION
Matter of Arthur Sellers, 13AD 2d 204
Appeal board No. 70,414-59

VOLUNTARY LEAVING OF EMPLOYMENT – WAGES BELOW PREVAILING

Dissatisfaction with wages, even though they are below those which are prevailing for claimant’s occupation, does not constitute good cause for voluntary leaving of employment, unless circumstances are involved which have developed in the course of the employment.

COURT DECISION

Claimant initially began work as a porter for the employer on August 27, 1957, at a wage of $52.00 for a 48 hour week. On January 6, 1959, when his wage was $55.00 for a 48 hour week, claimant voluntarily quit because he was dissatisfied with the amount of his pay.

Assuming, arguendo, that claimant’s wages were substantially less than those prevailing for similar work in the locality, the question presented is whether an employee may take a job initially at such sub-standard wages and then by a voluntary quit qualify for unemployment benefits. The question has never been decided by the courts, hence, there is no judicial precedent which is controlling or which is of much aid in solution. The question has apparently proved a troublesome one for the Unemployment Insurance Appeal Board which has decided it both ways at different periods of time. (Cf. Appeal Board decision 49,266-55 dated April 15, 1955; 54,433-56, dated May 11, 1956; 55,350-56 dated June 15, 1956; 55,898-56 dated July 13, 1956; 56,363-56 dated August 31, 1956; 55,889-56 dated September 14, 1956; 61,471-57 dated January 24, 1958 and 65,572 dated September 12, 1958.

We do not think a claimant, under the circumstances present here, should qualify, without restriction, for benefits. First, the general intent, purposes and objectives of the Unemployment Insurance Law would not seem to include a situation such as this. The primary purpose of the law is to ease the hardship of involuntary unemployment due to economic conditions or other conditions beyond the control of the employee. It was not intended as a substitute for a minimum wage law. (Here claimant never received less than the legal minimum wage.) It was not intended to regulate wages, -- it was intended as a substitute for the complete loss of wages forced upon an employee. (Unemployment Insurance Law, § 501, 522.) secondly, the Unemployment Insurance Law expressly disqualifies claimant. Pursuant to section 593 of the Unemployment Insurance Law, claimant is not entitled to benefits after a voluntary separation from employment solely because of dissatisfaction with wages, even if they were less than the prevailing wage, unless he comes within the literal terms of an exception contained in section 593, subdivision 1(a), the pertinent part of which reads: "* * * 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 * * *."

No circumstances whatever "developed in the course of such employment" which would have justified claimant in refusing the employment in the first place. His wages were not reduced during the employment, they were raised. If we assume his wages were sub-standard when he quit, they were sub-standard when he took the job. Nothing "developed in the course of such employment" which would justify a refusal of the job in the first instance, and we may not ignore those plain words in the statute. To hold otherwise would permit an employee, fully aware of the wage to be paid, to take a job and use that job for the necessary qualifying period of employment, and then, for no reason not present in the first instance, voluntarily quit and receive unemployment insurance benefits. Such an interpretation is unrealistic and entirely beyond the real purpose of the statute.

Moreover, we do not think the record in this case sustains a finding that claimant was receiving less than "prevailing" wages for his type of work. There is evidence in the record that the wages paid claimant were commensurate with wages paid for similar work in the locality, and that the State Employment Service had referred applicants to job as porter at $1.00 per hour. However, the Board relied upon a survey made by the United States Department of Labor, Bureau of Labor Statistics, dated April 1958, which found that the median salary of male janitors, porters and cleaners in the retail trades in the New York City area was $1.36 per hour. Claimant’s wage was within the range of wages found in the survey (which varied widely), but was somewhat less than the "median" wage. The difficulty is that "median" wage, the wage of the middle worker, is not the same thing as "prevailing" wage. A wage may not be said to be "prevailing" when substantially one-half of the workers are receiving less and substantially one-half are receiving more. The statute nowhere uses the word "median". In order to be a prevailing wage it must appear that at least a majority of workers in similar employment are receiving approximately that wage.

The survey relied upon necessarily included widely varied types of establishments and employers and included employees of widely varied abilities, experience and job performance. To arbitrarily take the middle worker’s wages as the wages "prevailing" for the particular type of work performed by claimant finds no sanction in the statute, in judicial precedent, or in common sense.

The decision should be reversed, with no costs to the appellant against the respondent. (May 23, 1961)

COMMENTS

  1. This release deals only with that part of the Court’s decision which relates to the role of prevailing wages in voluntary quit cases. It does not deal with the discussion in the Court decision regarding proper standards for establishing prevailing wages. That topic will be presented separately and File A-710-32 may be revised. Local Offices should not apply any new standards in that respect, unless and until so advised.
  2. Insofar as here pertinent, the decision speaks for itself. As a result, prevailing wages will have, generally, no bearing on the question whether a quit is with or without good cause. An illustration for the exception – circumstances which developed in the course of employment – is the case of a claimant who was hired many years ago with wages which at that time satisfied the prevailing wage requirement. However, he did not receive wage increases in line with the rise of the cost of living and the general advance of wage scales over the years. Thus, the inadequacy of the wages now is due to circumstances which developed in the course of the employment.
  3. Even though the decision deals only with prevailing wages, it is logical to conclude that the same principles apply to the other reasons which "would have justified the claimant in refusing such employment in the first instance" under the specifications enumerated in Section 593.2 That includes being fitted by training and experience for the job and distance from residence. Such factors will, generally, be no longer grounds for holding that a voluntary separation is with good cause.



A-750-1551
Index No. 1310.3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 28, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Due to

COURT OF APPEALS DECISION

Matter of Thomas J. Gilmartin, 10NY 2d 16

Appeal Board No. 68,127-59

INDUSTRIAL CONTROVERSY, QUESTION OF: ILLEGAL ACTION OF "OUTSIDE" UNION

There is an industrial controversy within the meaning of the Unemployment Insurance Law in an employer’s establishment if the employer refuses the demand of a union (i.e., to hire one of its members), although the union does not represent employees in his shop and none of the employer’s present workers is a member of the union and even if such action by the union is "illegal" and not a "labor dispute" within the meaning of Section 876-A of the Civil Practice Act.

COURT OF APPEALS DECISION

This appeal, here by permission of the Appellate Division, poses a question somewhat different from that presented in Matter of Ferrara and the other cases which we have just treated (supra, pp. et seq.).

The claimant, a material yard worker, was employed by Flexicore Precast, Inc., a manufacturer of concrete products. The concrete which is used in its manufacturing process was supplied by Ryan Concrete Company. At the time of the claimant’s unemployment, both corporations were owned by the same person. The two corporations were, however, distinct legal entities and occupied separate premises.

The industrial controversy with which this case is concerned arose in the following manner. A representative of the Lathers’ Union called upon Flexicore and demanded that a member of that union be employed to operate a lathe that was being used by Flexicore. Flexicore, whose employees were members of other unions, refused the demand. The Lathers’ Union representative enlisted the aid of the Teamsters’ Union and, thereupon, the truck drivers employed by Ryan refused to deliver concrete to Flexicore. Flexicore was forced to lay off its employees, including the claimant.

As we have already noted, the issue here involved differs from that in the other cases. In each of them, the essential question was whether the facility in which the claimant was employed constituted a separate establishment from the establishment in which the industrial controversy occurred. Flexicore and Ryan unquestionably constituted separate establishments, and we are here called upon to decide whether there was an industrial controversy at Flexicore where the claimant worked. We believe there was. Flexicore was the employer of whom the Lathers’ Union demanded employment for one of its members. The fact that the Lathers’ Union sought to achieve this objective by having its Teamster ally bring indirect pressure through the truck drivers of an essential supplier does not change the basic character of the controversy or alter Flexicore’s involvement. Flexicore and the Lathers’ Union continued to be the primary disputants.

The claimant contends, however, that the conduct which caused the loss of employment was a "secondary boycott" and, therefore, could not be considered an "industrial controversy". To support his position, he calls attention to several cases holding that similar conduct has been held to be "illegal" and not a "labor dispute" within the purview of section 876-1 of the Civil Practice Act, our so-called anti-injunction statute.

It is unnecessary to test the validity of the conduct here in issue in terms of section 876-a. The purposes underlying the Civil Practice Act provision and those which underlie section 592 of the Unemployment Insurance Law are entirely different. That an employer may be entitled to injunctive relief against unlawful conduct on the part of a union does not establish that the employees of such an employer, who were laid off as a result of the unlawful conduct, are entitled to unemployment insurance benefits. In interpreting section 592, the unlawfulness of the controversy is beside the point; the statute does not permit value judgments either as to employer or employee conduct.

The fact that the Lather’s Union did not represent Flexicore’s then current employees is also beside the point. Such a consideration bears only upon the propriety of the conduct, not upon the existence of a controversy.

In this case, therefore, it is our conclusion that there is an industrial controversy at Flexicore, the establishment in which the claimant and his fellow employees were employed, and, accordingly, benefits should have been suspended for the statutory period. (See Matter of Lasher [Bethlehem Steel Co.], 279 App. Div. 505.)

The order of the Appellate Division should be reversed and the determination of the Industrial Commissioner reinstated. (May 25, 1961).

* * *

(Note: The Industrial Commissioner appealed from the Referee Decision, the Appeal Board Decision and the Appellate Division Decision, which decisions overruled the local office disqualifying determination. The Court of Appeals, as a result of appeal by the Industrial Commissioner, sustained the local office determination.)




A-750-1552
Index No. 1460A.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 27, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Vacation Pay

Appeal Board Case Number 79,941-61

ALLOCATION OF VACATION PAY

Where a vacation agreement calls for a specific two-week plant shut down and provides that all vacations shall begin on the first Monday, a paid vacation for one week must be allocated to the first week.

Referee’s Decision: The decision of the referee overruled the initial determination of the local office holding claimant, an operator in a shoe factory, eligible to receive benefits effective July 4 through July 10, 1960 without disqualifying conditions and sustained the employer’s objections to the payment of benefits to claimant on the ground that he was ineligible to receive benefits effective July 4 through July 10, 1960, because he was on paid vacation during that period.

Appealed By: Industrial Commissioner

Findings of Fact: We have reviewed the evidence adduced at the hearing before the referee and find that the following findings of fact made by the referee are amply supported by the evidence and they are hereby adopted as the findings of fact of the Board:

* * *

Claimant filed an original claim effective July 6, 1959, and an additional claim effective July 4, 1960. An initial determination was issued ruling him eligible for benefits for the period July 4 through July 10, without disqualifying conditions. The employer objected thereto and requested a hearing.

Claimant was employed as an operator in a shoe factory for one year and about six months through July 1, 1960. He worked a five-day week from Monday through Friday. The employer is in contractual relations with the union of which claimant is a member. Paragraph seven of the collective bargaining agreement provides that employees who on June 15 of the vacation year have had five or more years of service with the employer shall receive two weeks vacation pay and those who have had less than five years of service shall receive one week’s vacation, to be computed in accordance with prescribed standards, that all vacations shall begin on Monday of the week in which July 4th falls and if two weeks of actual vacation are taken, the same shall be two consecutive weeks of vacation; and that any firm under contract with the union for five continuous years or more shall close its factory for two weeks during the vacation period.

The employer shut down its plant for a two-week vacation period commencing Monday, July 4 because it was under contract with the union for at least five continuous years. Claimant was substantially fully employed in the weeks preceding and following the vacation period. In accordance with the union contract claimant was entitled to and was paid one week salary for vacation and holiday pay.

Claimant’s benefit year expired July 10, 1960.

A Bulletin of the Interpretation Service, File No. A-710-10, 1959 Supplement, entitled "BENEFIT CLAIMS DURING VACATION PERIODS AND HOLIDAYS" at page three subtitle e. "Allocation" states:

When a claimant receives vacation pay for the entire "vacation period" there is, of course, no problem of allocation. However, where, for instance, a "vacation period" of two weeks has been established and a claimant receives payment for only one week, the payment is usually allocated to the first week of the period.

However, discretion in allocation is permissible to prevent hardship. For example, the claimant may have set aside the second week for a trip with the result that he is not available in that week but is available in the first week. Or by coincidence a claimant’s benefit year may expire at the end of the first week. Allocation to the first week would deprive him of benefits in that week and only permit credit of a waiting week in the new Benefit Year. Allocation to the second week is proper under such circumstances as well as in other situations where a contrary approach would be inequitable.

In accordance with the foregoing Bulletin, the insurance office allocated claimant’s vacation pay to the second week of the plant shut down, in consequent of which he was ruled eligible for benefits for the period herein.

The employer contended that claimant’s vacation pay should have been allocated to the first week of the vacation period.

Appeal Board Opinion and Decision: Inasmuch as the referee has rendered a well-reasoned opinion, we hereby adopt the opinion of the referee as the opinion of the Board:

The employer’s contention has merit. Section 591.3 of the Unemployment Insurance Law was enacted to eliminate alleged inequities and abuses which resulted from decisions defining the eligibility of persons claiming benefits who were unemployed during periods when an employer shut down a plant purportedly to provide a vacation period for all its employees.

An analysis of the statute manifests that it was intended to design a formula whereby benefits would be denied employees enjoying a genuine paid respite from work and shield the benefit rights of those subjected to an involuntary rest without pay.

Although situations might arise where the application of "discretion in allocation" of a partial vacation allowance for a vacation period, as set forth in the Bulletin cited herein above would be warranted either because it is infeasible to determine with certainty the week to which the pay allowance should be allocated or for other reasons, such is not the case in the matter herein.

Claimant’s vacation rights derive from the collective agreement. He and the employer are equally bound by its provisions. Since the agreement specifically provides that all vacations shall begin on the Monday in which July 4th falls, it is clear that claimant’s vacation commenced on the first day of the plant shut down and continued for the period for which he was paid vacation, in accordance with Section 591.3 of the Law. It follows that the employer’s account should not be subject to a charge for the payment of benefits arising from claimant’s unemployment from July 4 through July 10 which might affect the employer’s tax rate, because of the accidental circumstance that claimant’s benefit year expired in the week in which he was ineligible for benefits because he was in a vacation period for which no benefits are payable.

The initial determination of the local office holding claimant eligible to receive benefits effective July 4 through July 10, 1960 without disqualifying conditions is overruled and the employer’s objections to the payment of benefits to claimant on the ground that he was not eligible to receive benefits during the period July 4 through July 10, 1960, because claimant was on a paid vacation during that period, is sustained. Claimant is ineligible to receive benefits effective July 4 through July 10, 1960 on the ground that he was on a paid vacation during that period. The decision of the referee is affirmed. (June 20, 1961)




A-750-1553
Index No. 1320D-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 5, 1961

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

COURT OF APPEALS DECISION

Matter of Edward S. Wentworth, et al, 10NY 2d 13

Appeal Board No. 65,794-58

QUESTION OF WHETHER LOSS OF EMPLOYMENT IS DIRECTLY ATTRIBUTABLE TO INDUSTRIAL CONTROVERSY IN ESTABLISHMENT

If there is an industry-wide industrial controversy, the provisions of Section 592.1 apply to a claimant only if his unemployment is directly attributable to the industrial controversy in his place of employment. Thus, in the case of a general strike of truck drivers in the construction industry, the construction workers of an employer are not suspended from benefits if their loss of employment is attributable to the non-delivery of cement caused by the strike of truck drivers against another employer supplying the cement, rather than to the participation in the strike by the truck drivers employed by employer of the construction workers.

COURT OF APPEALS DECISION

In this case, as in Matter of Curatalo (supra, p. ), the Industrial Commissioner also appeals by our permission.

The claimants were employed as carpenters and timberman by Tully & DiNapoli, Inc., a construction firm working on road construction projects in the New York City area. Their duties consisted of constructing wooden forms and performing other work in preparation for the pouring of concrete. On Monday, February 3, 1958, Local 282 of the Teamsters Union called an industry-wide strike. Among those who struck were the truck drivers of the Colonial Sand & Gravel Company, the outfit from which the employer obtained its concrete. As a result, since there were no deliveries of concrete to fill the wooden forms, the claimants were laid off on various dates over a period from Friday, January 31, the last working preceding the strike, to February 7, some days after the strike began. The employer’s own dump truck drivers, who carted materials from one part of the project to another, also participated in the strike.

The claimants’ application for full unemployment insurance benefits was rejected by the Industrial Commissioner and by the Referee. However, both the Appeal Board and a unanimous Appellate Division took a different view; it was their opinion that the employer’s decision to curtail operations and the claimant’s loss of employment occurred because of a combination of unfavorable weather and the strike of the Colonial Sand and Gravel truck drivers. It is clear that the claimant’s loss of employment was not attributable to the participation of the employer’s dump truck drivers in the Teamster strike. It is enough to say that, for the reasons set out in Matter of Ferrara (supra, p. ), we conclude in this case, too, that the industrial controversy which gave rise to the layoff did not occur in the establishment in which the claimants were employed.

The order of the Appellate Division should be affirmed. (May 25, 1961)




A-750-1554
Index No. 1180-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 10, 1061

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Union Activities

Appeal Board Case No. 80,096, et al

CONDUCT OVER STEPPING BOUNDS OF LEGAL AND PEACEFUL PICKETING

A claimant who in the course of an industrial controversy oversteps the bounds of legal and peaceful picketing (blocking of plant entrance; intimidating and threatening other workers; damaging other workers’ property; etc.) and is discharged for this reason is subject to a misconduct disqualification beginning with the actual date of discharge since the employer-employee relationship is not terminated by the controversy.

Decisions Appealed: these are cross appeals. Claimants in Groups I and II appeal from the decision of the referee filed March 6, 1961 insofar as it sustains the initial determinations of the local office disqualifying claimants from receiving benefits effective various dates on the ground that they lost their employment through misconduct in connection with their employment. The employer appeals from the decision of the referee insofar as it overrules the initial determination of the local office disqualifying claimant, L.V., from receiving benefits effective October 27, 1960 on the ground that he lost his employment through misconduct in connection with his employment, or in the alternative, on the ground that he voluntarily left his employment without good cause by provoking his discharge.

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

* * *

Claimants were employed in various production occupations by a corporation which manufactures electrical and allied equipment. The employer was in contractual relationship with Local 320 of the International Union of Electrical Workers. All of the claimants involved were members of the union.

The contract between the employer and the union expired on September 30, 1960. On October 1 a strike was called against the employer by the union involved. Prior to the beginning of the industrial controversy the employer, through the medium of a weekly newspaper published for its employees and through local newspapers, had notified its employees that there was a threat of a strike but that the employer’s plants would remain open for all employees who wished to work; that the employer had been assured by law enforcement officials that individuals who wished to work would be protected against any illegal acts such as violence, threats or intimidation. Among other statements the publication set forth acts that had been held illegal by the National Labor Relations Board and by the courts, such as participating in mass picketing at gates, designed to prevent access to employees desiring to work; physically damaging or manhandling any vehicle seeking entrance to the plant; standing or massing in front of, or placing any kind of obstruction in the path of, such vehicle in an attempt to prevent access to the plant; physically assaulting employees who attempted to enter the plant; using force, threat of force or any intimidation designed to prevent or discourage entry to the plant by employees who wished to work. The publications further stated that, "To avoid any misunderstanding, the company wishes to make it clear that it will consider any such illegal acts as cause for discharge, or other disciplinary action."

The Board makes the following additional findings of fact: The employer’s plant is located on about 300 acres of land in the outskirts of Syracuse. There are about 14,000 employees of which about 9,000 are salaried workers who were not affected by the strike. There are about 5200 production and maintenance workers. Their starting hour of work is 7 a.m. Of this group, about 1200 reported for work during the strike. In the course of the strike, five entrances to the plant premises were in use. Incidents occurred at or near several of the plant entrances which resulted in disciplinary action taken by the employer against thirty-three individual employees. Of these 15 were discharged and 18 were suspended for varying periods. The twenty-one claimants involved on this appeal are among these and are grouped as follows:

GROUP I

Each of the claimants in this group wilfully parked his or her automobile in concert with others at or near entrances to the employer’s plant, resulting in a complete blocking of the plant entrances for periods of as long as 15 minutes, preventing employees who desired to enter the plant from so doing. All of this group, except claimants A.A. and R.T. participated in the blocking of the main entrance to the employer’s plant commencing at about 6:20 a.m. on October 10 by placing their personal automobiles in the roadway. The employer used various means of removing the vehicles from the road. As soon as one car was removed, another automobile would be driven into its place to complete the blockage. Traffic on the main highway leading to the main entrance was disrupted and backed up for a considerable distance. Employees wishing to enter the company premises through the main entrance were unable to do so. Claimants A.A. and R.T. in concert with others similarly blocked different entrance roads into the employer’s plant in the early morning hours of October 10, thus preventing employees’ cars from entering the plant premises.

GROUP II

The ten claimants in this group are charged with various acts inimical to the employer’s interests based on incidents occurring at various times during the course of the strike. These charges include blocking of plant entrances to prevent employees from entering, intimidating and threatening other employees to discourage their reporting for work, causing damage to employees’ automobiles and other acts of aggression. All of these claimants were discharged by the employer except claimant R.N. who was suspended.

Claimant M.C., by use of a sharp instrument, inflicted a long, deep scratch on the body of an automobile of an employee while the car was passing through the plant gate on the morning of October 5.

Claimant H.B., prior to the opening hour on the morning of October 11, blocked the plant entrance by standing in front of automobiles attempting to enter the plant. In addition, he threw nails under the tires of an automobile of an employee who was driving into the plant causing the tires to be punctured.

Claimant J.T. blocked the plant entrance by standing in front of automobiles attempting to enter; attempted to run down and employee with his automobile; used abusive and threatening language to a company observer and jostled him while doing so.

Claimant S.C., in written form, made filthy accusations against a female employee and threatened damage to her car and to scar his woman for life if she continued to come to work. This information was written on a strike banner which was thrown on the female employee’s porch by an unknown person. The handwriting on the banner was positively identified as that of claimant, by comparison with claimant’s known handwriting, by a qualified handwriting expert.

Claimants R.B. and R.N. were among a group of about 150 pickets who were massed at the main gate to the employer’s plant at about 6:30 a.m. on October 6. These pickets blocked the entrance to both driveways at the main gate. Law enforcement officials attempted to clear the driveways by appeals and warnings to the strikers to allow traffic to pass through, by the use of fire hoses ineffectively three times and finally by the use of force, all in an effort to disperse the pickets. Resistance was encountered from the crowd in the course of which both claimants received severe head injuries from the club of an official, resulting in hospitalization and medical treatment. Claimants were subsequently arrested and charged with assault upon the officer, but the charges were later dismissed.

Claimant M.M. was charged with the blocking of the plant entrance, threatening employees to prevent them from entering the plant and with an assault on another employee. M.M. was observed on the picket line on the morning of October 4 to be one of a group who were making remarks to employees entering the plant and to engage in a discussion with one worker in particular. The assault charged against M.M. took place at the bus stop near the main gate in the early morning of October 5 and prior to daylight. At the time of such assault claimant was said to be at another gate some distance away by several witnesses, including a witness produced by the employer. Another company witness who observed the assault was unable to make an identification of the assailant because it was still dark. The victim, in originally reporting the assault, stated merely that she had been struck by a picket.

Claimant H.T., by use of a syringe, squirted a foreign substance on the automobile of a salaried employee while it was passing through the plant gate, causing minor damage to the body of the car.

Claimant S.B. placed a board with nails under the car of an employee entering the plant and distributed nails on the roadway, causing punctures in tires of employees’ cars. He also jostled and interfered with a company employee who was attempting to sweep nails out of the roadway to the plant.

Claimant R.N. also threw nails under the tires of automobiles entering the plant causing flat tires to the automobile.

GROUP III

Of the original five claimants in this group, the only one involved in this appeal is L.V., president of the union local. L.V. is charged with blocking the plant entrance and inciting pickets to mass themselves in front of the plant entrance in order to create an atmosphere of fear and terror so as to frighten away from work employees desiring to enter the plant for that purpose. On September 29 and prior to the strike, claimant as president of the union local addressed the union members at a meeting held at the plant gate, telling the workers that the success of the strike is dependent upon the picketing and making suggestions to the workers as to the manner of conducting themselves as pickets. On October 5 at about 6:45 a.m., claimant appeared in front of the main gate to the employer’s plant and outside of the employer’s premises where there were at the time from 60 to 70 pickets and 25 to 30 law enforcement officials. L.V., following advice of union counsel, instructed the pickets as to the manner in which they may line up and picket in front of the entrance. By 7 a.m. the picket line had increased to from 100 to 125 pickets. The picket line was broken from time to time to permit traffic to enter the gate. Claimant indulged in discussions and arguments with officials as to what constituted legal picketing, as to which there was a difference of opinion. At one point, claimant in crossing the road caused an automobile entering the plant to stop momentarily in the roadway while he moved out of the way in order to avoid being run over. Motion pictures of a few minutes of the incident of the morning of October 5 showed claimant endeavoring to control the picket line and to clear pickets from the driveway.

Appeal Board Opinion and Decision: the referee sustained disqualifications for loss of employment due to misconduct in connection therewith against all of the claimants in Groups I and II, from which part of his decision the claimants have appealed. The referee overruled determinations of loss of employment through misconduct and alternative initial determinations of voluntary leaving of employment without good cause by provoking their discharge against claimants in Group III. The employer appeals only with respect to claimant L.V. who was included in this group.

The pertinent provision of the statute relating to misconduct reads as follows:

593.3 Misconduct. No days of total unemployment shall be deemed to occur after a claimant lost his last employment prior to the filing of his claim through misconduct in connection with his employment until he has subsequently worked in employment on not less than three days in each of four weeks or earned remuneration of at least two hundred dollars.

It is contended on behalf of claimants that this provision does not apply because the employer-employee relationship no longer existed between the employer and claimants during the period of the industrial controversy. It is pointed out that the contract between the union and the employer had expired prior to the beginning of the strike. Reliance is placed also on the definition of "employment" asset forth in Section 511 of the Unemployment Insurance Law as meaning "…any service under any contract of employment for hire, express or implied, written or oral." The Industrial Commissioner argues that the employment relationship between the employer and claimants was not terminated by the industrial controversy, citing Section 2(3) of the Labor Management Relations Act of 1947 (49 U.S.C.A., Sec. 152(3) which provides:

The term "employee" shall include . . . any individual whose work has ceased as a consequence of or in connection with any current labor dispute . . . and who has not obtained any other regular and substantially equivalent employment . . .

In Matter of Sadowski, 257 App. Div. 529, affirming Appeal Board, 229-38, the Court dealt with the question of loss of employment due to an industrial controversy under the strike disqualification provision as it was then contained in Section 504.2(b) of the original Unemployment Insurance Law reading as follows:

An employee shall not be entitled to benefits except for unemployment which continues subsequent to a waiting period of ten weeks:

  1. if he has lost his employment through misconduct in connection with his employment; or
  2. if he has lost his employment because of a strike, lockout or other industrial controversy in the establishment in which he was employed

There the Court said at page 531:

* * *

The sole question for determination by us is whether claimant lost her employment because of lack of work or because of the strike in the establishment in which she was employed.

It is conceded that claimant was neither laid off nor discharged. Certainly claimant’s employment was not terminated by the strike. Under the statute those who cease work because of a strike, lockout or other industrial controversy retain their status as employees.

Although in the subsequent statute, the word "claimant" has been substituted for the word "employee," there is no indication that in making such change there was any intention to alter the status of the parties. In a decision involving a later statute providing for the suspension of accumulation of benefit rights by a "claimant" after loss of employment because of industrial controversy we stated:

* * *

Clearly, there is no severance of the employment relationship between claimant and the newspaper publisher throughout the duration of the strike. Claimant’s immediate restoration to the roll of strikers and to strike benefits on the termination of his temporary employment coupled with his many years of seniority in and his subsequent return to his regular employment after the strike ended, permit of no other conclusion. (Appeal Board, 15,925-47)

In the instant case where the strikers could return to their employment at any time in the course of the strike where they suffered no break in their service for seniority purposes by reason of the time they were on strike and where there was no intention on their part to abandon their employment, it seems equally clear that there was no severance of the employer-employee relationship.

Decisions in other jurisdictions are to the same effect. [NLRB v. McKay Radio and Telegraph Company, 304 U.S. 333; NLRB v. Deena Artwear, Inc., 198 F. (2d) 645; Cusano v. NLRB, 190 F. (2d) 898.); Collins Baking Company v. NLRB, 193 F. (2d) 483, 486; Swart v. Huston, 1941, 154 Kansas 18a]. we agree with the conclusion of the referee that the expiration of the collective bargaining agreement followed by the strike did not sever the employment relationship during the period of the industrial controversy.

Turning to the question of whether or not the conduct of the claimants during the strike constituted misconduct within the meaning of the law, no recorded decisions in this State have been called to our attention involving charges of misconduct due to incidents occurring on a picket line or in the course of an industrial controversy. The referee placed reliance upon a large number of administrative decisions of sister states from which it appears to be the consensus that disqualifications for loss of employment due to misconduct in connection with employment may be grounded on occurrences of this nature.

Misconduct is not defined in the Unemployment Insurance Law. We have cited with approval and generally followed the principles contained in Boynton Cab Company v. Neubeck, 237 Wis. 249, wherein the Supreme Court of Wisconsin stated:

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

Employees’ right to picket an employer’s premises is protected by both federal and state law. We do not presume to define the limits of legal and peaceful picketing. However, we agree with the conclusions of the referee that the charges that the conduct of claimants overstepped the bounds of legal and peaceful picketing was sustained by all of the evidence, with any exceptions which might follow. We hold that such conduct constituted misconduct under the Law.

We are in agreement with the referee that all of the claimants in Group I "deliberately and intentionally and in concert with others parked automobiles in or near the entrances to the employer’s plant in such manner as to completely block the entrances, thus preventing employees from reporting for work and slowing down the production of the employer, all of which was to the detriment of and injury to the employer." We agree also that such conduct evinced a wilful and wanton disregard of the employer’s interests and was in deliberate violation and disregard of standards of behavior which an employer has a right to expect of its employees.

With respect to the claimants in Group II, we agree with the conclusion reached by the referee with the exception of his disposition of the case of claimant M.M. (Appeal Board, 80,112-61). This claimant was charged with a serious offense resulting in personal injuries to a fellow employee. Although there is no question that such an assault took place, there is considerable doubt whether claimant was the person who committed the assault. It is not disputed that because of the darkness which prevailed at the time identification of the guilty person is a difficult matter. Significantly, claimant has been placed at another location at the time of the assault by witnesses including those of the employer. Moreover, the victim, when originally reporting for treatment for her injuries, did not name claimant as her assailant. Upon all of the evidence, we are of the opinion that it was not established that claimant M.M. was guilty of the acts of misconduct charged.

Claimants M.E.C., H.B., H.T., S.B. and R.N. in Group II were shown to have committed acts causing damage to employees’ automobiles which were being driven through entrances to the plant by employees on their way to work. Unquestionably, such acts passed beyond the bounds of peaceful picketing and were intended to intimidate and discourage workers from continuing their employment during the strike. Claimants R.B. and R.N. in this group, in concert with others, blocked the entrance to the employer’s plant and failed to heed the warnings of the law enforcement officers to disperse. As the referee observed, while these two employees were the only ones of this group charged with the offense, their actions were sufficiently identified with violence or threat of violence to warrant a finding that their subsequent loss of employment was occasioned by acts of misconduct. It is, therefore, immaterial to the case that the other participants were not similarly charged.

The remaining members of Group II, J.T. and S.C. were also shown to have committed aggressive acts of a deliberate nature resulting in prejudice to the employer’s interests sufficient to brand such acts as misconduct. In addition, the evidence establishes that claimants H.B. and S.B. committed aggressive acts of similar import.

Finally, we agree with the referee in his disposition with respect to L.V., the only claimant in Group III, as to whom an appeal was taken. The charge against this claimant relating to the speech made by him prior to the strike is that, at the most, he made misleading statements to accompanying employees concerning their constitutional rights. The other charge arising out of claimant’s participation in the incident at the main gate on the morning of October 5 was not sustained by the evidence. Claimant was at the scene in his capacity as president of the local instructing and advising the pickets as to their rights as he understood them. It is understandable that in the heat of argument and the confusion arising out of an incident such as this, legal niceties cannot be observed with exactitude. Upon all of the evidence, it cannot be said that it was shown that claimant L.V.’s actions were deliberately designed to create an atmosphere of fear and terror as charged by the employer.

One point remains for comment. The alternative determinations of voluntary leaving of employment without good cause by provoking their discharge issued against claimants are based on the employer’s statements and publications warning employees against the commission of illegal acts in the course of the strike and the declaration by the employer that any such illegal act would be considered as cause for disciplinary action. It is unnecessary to pass upon this question except with respect to claimants M.M. and L.V. as to both claimants, we hold that it has not been shown that they deliberately acted in such a manner as to provoke their discharges.

The initial determinations of the local office disqualifying claimants from receiving benefits effective various dates on the on the ground that they lost their employment due to misconduct in connection with their employment is sustained as to all claimants involved herein except claimants M.M. and L.V.

The initial determination of the local office disqualifying claimants M.M. and L.V. from receiving benefits effective October 27, 1960 on the ground that they lost their employment through misconduct in connection with their employment, or in the alternative on the ground that they voluntarily left their employment without good cause by provoking their discharge, are overruled. The decision of the referee is modified accordingly and, as so modified, is affirmed. (June 22, 1961)

COMMENT

These Appeal Board decisions were affirmed by the Courts in Matter of Davis, 24AD 2nd 904.




A-750-1555 (Rev.)
Index No. 1205E-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 16, 1962

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Disqualification Period During Inactive Status

APPELLATE DIVISION DECISION

(MATTER OF SCHURMANN, 16AD 2d 311)

Appeal Board Case Number 76,769-60

REFUSAL WHILE INELIGIBLE – INABIL8ITY TO FILE VALID ORIGINAL CLAIM

A disqualification for refusal of employment may apply to any person who is a "claimant," that is, "seeking benefits" at the time of the refusal by having filed a claim, even though he has no right to benefits at that time for other reasons.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 5, 1960, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience is overruled. No appeal was taken from that part of the referee’s decision which modified the initial determination holding claimant ineligible effective July 7, 1960, because she was unable to accumulate any effective days, by making the same effective July 7 through August 14, 1960.

Appealed By: Industrial Commissioner

Appeal Board Findings of Fact: Claimant, a manicurist, filed a claim for benefits, effective July 7, 1960. She had been employed in a beauty parlor from March 26, 1959 until June 18, 1960 when she went on vacation. She worked three days per week and earned $14 per day. She had been advised by her doctor to work no more than three days weekly. From the time she initiated her claim, she constantly indicated that she would not work on more than three days of any week. Nevertheless, she continued with her reports to the insurance office but she was not paid any benefits. On August 4, 1960, she refused to accept referral to her former employer for possible re-employment because of personal differences between such employer and herself.

Appeal Board Opinion and Decision: We are in accord with the referee’s conclusion that since claimant could not file a valid original claim due to her admitted unwillingness to work more than three days in any week, she could not be disqualified under Section 593.2 of the Law.

Section 527 which enumerates the conditions prerequisite to the filing of a valid original claim, provides as follows in subdivision 3 thereof:

General Condition. A valid original claim may be filed only in a week in which the claimant has at least one effective day of unemployment. (underscoring supplied).

"Effective day" is defined in Section 523 of the Labor Law as follows:

"Effective day. ‘Effective day’ means a full day of total unemployment provided such day falls within a week in which a claimant had four or more days of total unemployment and provided further that only those days of total unemployment in excess of three days within such week are deemed ‘effective days’." (underscoring supplied).

From the reading of the pertinent section of the law, quoted above, it is clear that the claimant did not file a valid original claim, since upon her own admissions, she was unable to accumulate any effective days in any week up to and including the week in which she refused the offer of re-employment. Under these circumstances, the principle enunciated in Matter of Foscarinis, 284 App. Div. 476, affirming Appeal Board, 35,617-53, is applicable. In that case the Court said.

It is inherent in the statute that, before a disqualification may be imposed, benefit rights must exist from which he might be disqualified.

The Court further enlarged upon its views as follows:

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)

Since claimant’s restrictions were made known by her at the insurance office it was apparent that she was unable to qualify for benefits and therefore there did not exist any benefit rights from which she might be disqualified.

The initial determination of the local office disqualifying claimant from receiving benefits effective August 5, 1960 on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience is overruled. The decision of the referee is affirmed. (February 17, 1961)

Appealed By: Industrial Commissioner

Appellate Division Opinion and Decision: Appeal is taken by the Industrial Commissioner from a decision of the Unemployment Insurance Board which held that since claimant’s claim for benefits was not sustainable, when filed, because her unwillingness to work more than three days per week made it impossible for her to accumulate any effective days of unemployment (Labor Law, §§ 523; 527, subd. 3), she could not be disqualified, under subdivision 2 of section 593 of the Labor Law, upon her subsequent refusal of employment without good cause.

The board’s decision is predicated in large part upon its quotation of the language that, "before a disqualification may be imposed, benefit rights must exist from which [claimant] might be disqualified", from our opinion in Matter of Foscarinis (Corsi) (284 app. Div. 476, 478) in which, however, the refusal of the offer of employment occurred before any claim for unemployment benefits was made. The board would thus limit the meaning of "claimant" as used in the statute (Labor Law, § 593, subd. 2) to one who has filed a "valid original claim" (this quotation in the board’s decision being from section 527 of the statute); but "claimant" is expressly defined by section 515 as meaning "any person seeking benefits for unemployment." Thus, the meaning suggested by the board is not merely at odds with the statutory definition but would ignore, also, the common acceptation of the term as referring to one claiming benefits to which he may or may not be entitled and thus by strained construction of unambiguous language attach a peculiar significance to a simple term. Indeed, in the Foscarinis case (supra), upon which the board’s decision rests, we held the language of the statute "clear and unambiguous" (p. 477) and in the very first sentence of the opinion defined the question presented as "whether a refusal of an offer of employment by a person not then claiming benefits, may be the basis of disqualification under section 593 (subd. 2) ***when he thereafter applies for benefits" (p. 476). (Emphasis supplied.) Here, respondent had filed, thus becoming a "claimant," prior to the making and refusal of a job offer. The decision necessarily implies that respondent had never been a claimant and does not proceed upon the ground that she had ceased to be such by reason of the original denial of benefits; but, on the contrary, seems to recognize that her status, however defined, continued unchanged. Indeed, it was while she, as a claimant, was continuing to report (pursuant to the Commissioner’s direction, during the period within which application for review could be made) and while she thus remained "within the system" (Foscarinis, supra, p. 478), that the unemployment insurance office notified her of the offer of re-employment.

The conclusion which we have reached finds support in our decision in the somewhat analogous case of Matter of King (Corsi) (278 App. Div. 1036). There, as appears from the record on appeal, the board held that the statutory forfeiture by reason of a willful false statement (Labor Law, §594) was improperly imposed by the initial determination because claimant was then ineligible for benefits because of insufficient earnings in his base year and hence had no benefit rights which could be suspended then or in a new benefit year. This court reversed and reinstated the initial determination, as one that "the statute expressly permits". If the limitation "valid original claim" did not, in King, qualify the reference to "claimant" in section 594, certainly it may not be read into subdivision 2 of section 593. In any event, the construction foung by the Board in the case before us seems forced and both unwarranted and unnecessary.

The decision should be reversed and the initial determination of the Industrial Commissioner reinstated, without costs. (May 4, 1962)

COMMENTS

  1. This decision deals with a claimant who could not accumulate effective days at the time of the refusal because of unwillingness to work more than three days per week. However, the principle will equally apply to claimants who are ineligible because of other circumstances or who lack entitlement because of insufficient base period employment.
  2. Different conclusions continue to apply to refusals of employment which occur before a benefit claim was filed. (See File No. 1215,F) Under such circumstances, the individual was not a "claimant" when he refused a job; he was at that time, to use the Court’s language, not "within the system."
  3. Generally, the decision is authority for holding that, wherever the law provides for action affecting a "claimant," this applies to anyone who has brought himself "within the system" by having filed a benefit claim. It does not matter whether such filing relates effectively to actual rights to benefits.



A-750-1556
Index No. 1305A.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 29, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
STRIKE, LOCKOUT OR OTHER
INDUSTRIAL CONTROVERSY
Suspension Period and Effective Date

Appeal Board Case Number 78,758-61 et al

BEGINNING OF STRIKE SUSPENSION PERIOD

If a strike has been announced to become effective on a given day (e.g. "as of 7 a.m."), such day is not included in the suspension period of Section 592.1 even if no work is performed on that day.

Referee’s Decision: The Industrial Commissioner appeals from the decision of the referee filed January 13, 1961 insofar as it modifies the initial determinations of the local office suspending the benefit rights of claimants for 49 consecutive days effective October 6, 1960, on the ground that they lost their employment due to an industrial controversy in the establishment in which they were employed, by making the determinations effective October 7, 1960. Claimants appeal insofar as the referee rejected their contention that the determinations be made effective October 10, 1960.

Findings of Fact: Claimants, production workers, were employed in the plant of a large electrical manufacturer. Due to a cut back in production a rotation system of layoff was instituted by agreement with the union. Claimants were laid off for the week from October 3 to October 10, 1960. Claimants were unable to resume their work on October 10, as scheduled, because of a strike called at the employer’s plant by the electrical workers’ union effective 7 a.m. on October 6, 1960. The strike was terminated on October 17. The local office suspended the benefit rights of all claimants effective October 6, 1960 because of loss of employment due to a strike in the employer’s establishment. The referee sustained the determinations, as modified, so as to make the effective dates thereof October 7, 1960.

Appeal Board Opinion and Decision: It is not disputed that claimants’ benefits were properly suspended due to the strike. The Industrial Commissioner contends on appeal that the initial determinations were correctly made effective October 6 by virtue of the following interpretation:

The seven weeks’ suspension period as provided in Section 592, subdivision 1, of the Unemployment Insurance Law, begins to run with the first working day on which a claimant does not perform work because of a strike, lockout or other industrial controversy in the establishment in which he was employed, even if the decision concerning cessation of work, such as a strike vote, was to become effective or was only reached on that day. (Field Operations Bureau Interpretation Service, File No. a-710-22, Special Bulletin, dated April 25, 1952.

It is contended that to begin the suspension with the day after the strike was called, results in effect in an extension of the suspension to seven weeks and one day. It Is argued that the loss of employment actually occurs prior to the first day on which no work is performed, irrespective of the time that the final decision concerning cessation of work is made. We cannot accept these contentions.

The statute provides that a claimant’s benefit rights "shall be suspended during a period of seven consecutive weeks beginning with the day after he lost his employment because of a strike." (Underscoring supplied) We have uniformly held that a claimant’s loss of employment occurs on the day of the commencement of the strike or on the next following day on which he performs no work because of such strike. This method of application of the suspension of provision of the statute received Court sanction in Matter of Birkmeyer 272 App. Div. 855, affirming Appeal Board, 13,748-46. (See also Appeal Board, 293-38; 29,810-51).

The contention of claimants that the suspensions be made effective October 10 was likewise correctly rejected by the referee on the authority of the above cited cases.

The initial determinations of the local office suspending the benefit rights of claimants effective October 6, 1960, on the ground that they lost their employment due to a strike in the employer’s establishment, are modified to make the effective dates thereof October 7, 1960. The decision of the referee is affirmed. (May 22, 1961)

COMMENTS

  1. The decision means the following:
    1. If, for instant, a strike has been announced to become effective as of 7 a.m. on a Monday (prior to the beginning of the first shift), the suspension begins to run with Tuesday and does not include the Monday.
      1. If the strike lasts for more than seven weeks, the suspension will include the Monday of the eighth week so that the claimant cannot accumulate more than three effective days in that eighth week.
      2. If the strike is terminated in the same week in which it be came effective, for instance on the Thursday of that week, a claimant, if unemployed on those days, is to be credited, not only with Friday, Saturday and Sunday but also with Monday – even through he was "on strike" on that day – and would be entitled to benefits for one effective day.

    2. If a strike has been announced to become effective as of 7 a.m. on Friday of a week, a claimant, who had been on a layoff on the first three days of the week, may be entitled to one effective day for which benefits are payable to him: Not only Monday, Tuesday and Wednesday have to be considered towards the accumulation of effective days but also the Friday, even though he was "on strike on that day." The suspension period begins to run only with Saturday as "the day after he lost his employment because of a strike."



A-750-1557
Index No. 1250F-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 29, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Part-time, Offer of

Appeal Board Case Number 78,691-61

PART-TIME WORK PAYING LESS THAN BENEFIT RATE

Refusal of part-time employment on five days a week is with good cause if claimant’s net pay would be less than his benefit rate.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective October 31, 1960 on the ground that without good cause he refused employment for which he is reasonably fitted by training and experience is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant is 20 years of age, single, and lives with his parents. He maintained that his family depends upon him to contribute to its support. Claimant was last employed as a stock clerk in a department store for a period of five months until October 1960, at a salary of $58 for a five-day, 40-hour week. Prior to this employment, he had worked for a jewelry supply firm, also as a stock clerk, for five months until April 1960, at a salary of $52 for a five-day, 40-hour week.

On October 27, 1960, the employment office received a job order from the jewelry supply firm requesting that the claimant be referred to it for re-employment. Claimant reported to the employer and was offered re-employment, but only on a part-time basis for four hours a day from 9 a.m. to 1 p.m., five days a week at the rate of $1.50 an hour, totaling $30 a week. Although claimant initially accepted the employment to commence on October 31, he subsequently refused the offer. Prior to the date on which he was due to commence work, he informed the employer that he would not accept part-time work but would be willing to work full-time. Aside from his objection to the reduced earnings entailed in the part-time job, claimant objected that if he had accepted such employment from 9 a.m. to 1 p.m., it would not have permitted him to seek employment at a time when most jobs are obtainable. Claimant’s benefit rate is $28 a week.

On December 1, 1960 claimant secured employment in a department store at the rate of $1.10 an hour for a five-day, 40-hour week.

Appeal Board Opinion and Decision: The referee in overruling the initial determination relied upon Appeal Board, 73,167, in which we adopted the opinion of the referee as follows:

Claimant refused the employment with good cause. This is not the case of a claimant who rejects part-time work for several days a week, but which would permit that claimant to obtain partial unemployment insurance benefits. Such rejection of such part-time work would be without good cause. In the case herein, however, the employment offer to claimant was for five days a week, and would not permit her to supplement the lower wage received from such part-time work with partial unemployment insurance benefits. Considering the expenses to be incurred by claimant and the deductions from her wages, acceptance of this employment would constitute a hardship upon her. Claimant at all times was a full-time worker and desired full-time employment.

We conclude that the referee was correct in his disposition of the case and that the cited precedent controls.

The Industrial Commissioner in his statement on appeal relies upon Matter of Krieger, 279 App. Div. 681, reversing Appeal Board, 25,001. However, our decision in Appeal Board, 79,057 distinguishes the Court’s decision in Matter of Krieger, as follows:

In our original decision, we reversed the decision of the referee on the authority of Matter of Krieger, 279 App. Div. 681, reversing Appeal Board, 25,001-50. In that case and in Matter of Gadd, 278 app. Div. 1035, reversing appeal Board, 23,389-50, it was held that refusal of part-time employment solely because of a desire for full-time work is without good cause. In each of such cases, however, the employment offered would have enabled the claimants to accumulate credit for partial unemployment benefits. Accordingly, in Matter of Krieger, supra, the Court adverted to the provisions for partial benefits.

Upon further review of the matter, we are satisfied that the facts in the instant case, are distinguishable from each of the foregoing cases in that there, claimant could not qualify for any partial unemployment benefits. By working for part of each of four days in a week, claimant could not accumulate any effective days and, therefore, her earnings from the part-time employment would not be supplemented by any unemployment compensation. Moreover, in the absence of any partial benefits, acceptance of the offered employment would result in the receipt by claimant of less money than she would have received if she were totally unemployed. (Underscoring supplied)

We arrived at a similar conclusion in Appeal Board, 77,724, where the claimant was offered part-time employment two or three hours a day on five days a week. We point out that in this case also, claimant was offered part-time employment on five days a week.

The Industrial Commissioner also argues on appeal that by the acceptance of part-time employment, claimant would still have ample opportunity to seek other employment at 1 p.m. we believe that the claimant’s answer to such contention is well taken; namely, that the acceptance of employment in the morning hours would not permit him to seek employment at a time when most jobs are obtainable. We are dealing here with a semi-skilled occupation, and it is a matter of public knowledge that such jobs are best obtainable in the morning to suit employers’ convenience.

We hold that upon all of the grounds set forth herein as well as the reasoning set forth in Appeal Board, 79,057, 77,724 and 73,167, claimant had good cause under the Unemployment Insurance Law to refuse the offer of part-time employment.

The initial determination of the local office disqualifying claimant from receiving benefits on the ground that without good cause he refused employment for which he is reasonably fitted by training and experience, is overruled.

The decision of the referee is affirmed. (August 11, 1961)

DISSENTING OPINION

I am not in accord with the majority decision for the following reasons:

  1. The "Net Pay Test," invoked by the majority, is in my view, an unwarranted extension of our decision in appeal board, 77,724-60; applying such test to the particular facts and circumstances involved in similar instances of refusals of employment would create inequities and serious difficulties.
  2. The gross pay of a job is identical, irrespective of the personal circumstances of the particular workers, but the net pay of each unemployment insurance claimant depends upon various factors which differ in each instance, such as, the number of dependents, fringe benefits, tax deductions, etc. Thus, if the majority decision herein were to govern and perforce be applied, it would be necessary to calculate the net pay of the claimant involved, giving due effect to all the factors to which I have referred.

    To apply the rule enunciated by the majority would necessarily provide the unmarried worker, with no dependents with good cause to refuse a job, whereas, the worker with dependents would not have that protection because his gross pay would exceed his benefit rate since the amount of deductions, which is made from a worker’s gross pay, depends upon the number of his dependents in computing the tax deductions and hospitalization insurance premiums. An unmarried claimant with no dependents, because of such deductions, would have a lower net pay than would be the case of a married worker with dependents earning the same gross pay.

    It would be hopelessly lost in the maze of circumstances quite unrelated to the concepts which have heretofore been considered in connection with the granting or withholding of benefits, circumstances which in my view have no good reason to require consideration.

    In Appeal Board, 77,724 we held that a claimant who could earn only $21 a week for part-time work, as against her benefit rate of $25, had good cause to leave her job. The principle established was that a claimant whose earnings are substantially less than his benefit rate should not be disqualified for leaving his employment. I am in full agreement with this principle. However, I do not believe that we should go beyond that. In the case before us, claimant’s weekly earnings would exceed his benefit rate by $2.

    In Appeal Board, 79,057-61A we used as a criterion, the relationship of the net pay to the benefit rate. There, the benefit rate was $35, the gross earnings in part-time employment $38, and the net or take home pay, somewhat less than the benefit rate. However, upon careful reconsideration I believe the "net pay" concept is erroneous. The only sound test to apply is a comparison of the gross pay offered to the benefit rate. In the absence of undue hardship or other factors, if the gross pay for the offered part-time employment is equal to, or exceeds the benefit rate, then the wage offered is not inadequate.

  3. Moreover, in my judgment, the majority decision fails to conform with the principle enunciated by the Appellate Division in the Matter of Krieger, 279 app. Div. 681, reversing Appeal Board, 25,01-60. There the Court stated in reversing the Board.
  4. Affirmance thereof would establish the principle that an unemployment claimant may refuse any work offer in which he or she is not to be employed for a full week. There is no such requirement in the statute, and indeed, it is inconsistent with the provisions of the statute for compensating partial unemployment.

    The Court so held despite the fact that the claimant therein involved, was offered five or six hours of employment per day for three or four days a week.

  5. The conclusion of the majority that acceptance of part-time employment (mornings) would have practically deprived claimant of the opportunity of obtaining full-time work, and that he was therefore justified in refusing the former, fails to appraise realistically labor market conditions in the City of New York, where many large employers of labor, including department stores, maintain employment or personnel offices which receive job applicants during the entire business day. Claimant is 20 years of age and his work experience has been as a stock clerk in department stores. Claimant would have had ample opportunity to seek employment during the afternoons.

I, therefore, vote to reverse the referee’s decision herein and hold that the initial determination disqualifying claimant from receiving benefits because he refused employment without good cause, should be sustained. (August 11, 1961)

COMMENTS

The principle here stated is similar to that reported in release No. A-750-1541. However, in that case no distinction was made between part-time net or gross earnings; the broad term "earning" was used. The principle in that case (see comments) still prevails but the term "net earnings" is the determining factor rather than gross earnings.




A-750-1558
Index No. 1420-12
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

August 30, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous Employments

Appeal Board Case Number 81,513-61

QUESTION OF TOTAL UNEMPLOYMENT OF SELF-EMPLOYED PERSON DURING SLACK SEASON

Claimant who is self-employed in a substantial continuous business (Mason Contractor) is not totally unemployed during a slack period when no active operations are performed and during which time he continued to promote the interest of his business. (Operations ceased during the winter months because of inclement weather and claimant sought but was unable to procure inside jobs.)

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective January 23, 1961, on the ground that he was not totally unemployed is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant was employed as a mason for seven months until July 1960. Except for this period of employment, claimant has been self-employed during the past six years as a mason contractor. He owns and uses in his business, equipment worth approximately $4,000. From July 1960, when his employment was terminated, until December 15, 1960, claimant was actively engaged in his own business. On the latter date, he was compelled to cease operations because of the inclement weather.

Claimant filed for benefits effective January 23, 1961. During the next few months he sought but was unable to procure jobs which could be done inside. On April 3, 1961, claimant resumed work in his own business on several unfinished contracts.

Appeal Board Opinion and Decision: We do not agree with the referee that claimant was totally unemployed because he performed no services in connection with his own business during the period for which he claimed benefits. The record establishes that claimant had been self-employed for many years and that he had been engaged in his own business for several months before the cold weather compelled him to cease operations. Claimant was prepared to resume his business operation if he could obtain contracts for work that could be done inside. He sought such work but did not obtain any. Since claimant continued at all times during the period in issue to promote the interest of his own business, he was not totally unemployed.

The cases cited in the referee’s decision do not support his decision. The facts in Appeal Board, 71,222 are clearly distinguishable in that claimant in the instant case, was engaged in operating his self-employed venture on a continuous basis. He continued to be so engaged even during the slack period.

The initial determination of the local office holding claimant ineligible to receive benefits effective January 23, 1961, on the ground that he was not totally unemployed, is sustained. The decision of the referee is reversed. (July 27, 1961) (Resettled August 14, 1961)

COMMENTS

This decision should be distinguished from those cases where the business is not substantial or is not conducted on a continuous basis or where claimant does not devote substantial time or render substantial service in connection with the business.

The case cited by the Board (A.B. 71,222-59) and where a different conclusion was reached, involved a part-time licensed undertaker who operated from his home. He did not conduct a "going business on a continuous basis nor devote substantial time or render substantial services in connection with the business." The facts showed that he conducted only three funerals during the prior year and, immediately prior to filing for benefits, he was employed as a personnel director by a contracting company for about 13 months.

In determining the total unemployment of self-employed claimants, including partnership, etc., it would appear appropriate to use standard similar to those used in determining the eligibility of corporate officers during slack seasons. However, in the instant case it should be noted that claimant "continued to promote the interest of his business."




A-750-1559
Index No. 1290A-12
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 21, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Wages – General

Appeal Board Case Number 81,940-61 et al

REFUSAL - BASE PERIOD EMPLOYER AT WAGES BELOW PREVAILING

Even though the employer is a base period employer and the wages are the same as those previously received, a claimant has good cause to refuse employment in his former job when the offered wages are substantially below prevailing and the principle that substandard wages do not generally constitute good cause for a voluntary leaving of employment does not apply to cases of recall after separation.

Referee’s Decision: The initial determinations of the local offices holding claimants eligible to receive benefits, effective the dates set forth in the respective initial determinations, without disqualifying conditions and overruling the employer’s objections thereto are sustained.

Appealed By: Employer

Findings of Fact: Claimants were employed as uniformed guards by a detective and guard service agency at a starting wage of $1.08 or $1.14 an hour, except that claimant C.W.K., Jr. received $1.24 hourly as a uniformed guard sergeant. Claimants’ duties consisted of safeguarding the property of the employer’s clients. Claimants A.F. and A.A.R. received increases in pay to $1.21 and $1.14 an hour respectively.

The respective claimants voluntarily left their employment primarily because of dissatisfaction with their hourly rate of pay. All of the claimants except D.Y. and C.W.K., Jr., were offered re-employment but refused because of the insufficiency of wages. After leaving employment by the employer herein, claimant W.H.S. obtained employment as a guard at the United Nations at a basic hourly wage of $2; claimant T.R.G. obtained employment as a loader for a parcel delivery service at an hourly wage of $1.99 and Claimant A.A.R. obtained employment in the post office at commensurate pay. The offers of re-employment by the employer herein were made after each of such claimants had lost the subsequent employment.

According to a wage survey conducted by the United States Department of Labor, Bureau of Labor Statistics dated April 1960 (Bulletin No. 1265-44, page 14), the average hourly earnings of 4,389 guards employed in the locality were $1.82 during the period involved, with a breakdown as follows:

Industry No. of Workers Average Hourly Earnings
Manufacturing 597 $2.08
Non-Manufacturing 3792 1.78
Public Utilities 255 2.27
Retail Trade 101 1.70
Finance 1863 2.04
Services 1571 1.39

The following is a further breakdown of the straight-time hourly earnings of the total number of guards covered by the foregoing wage survey:

Number of Workers Straight-Time Hourly Earnings
1357 $1.00 to 1.60
 114  1.60 to 1.70
 194  1.70 to 1.80
 293  1.80 to 1.90
 353  1.90 to 2.00
 891  2.00 to 2.10
 448  2.10 to 2.20
 332  2.20 to 2.30
 407  2.30 or over
Total 4389

In an explanatory written statement accompanying the foregoing Federal wage survey, among others, the United States Department of Labor, Bureau of Labor Statistics has advised that data was obtained by personal visits of Bureau field economists to representative establishments within six broad industry divisions, that the occupations selected for study are common to a variety of manufacturing and non-manufacturing industries and that each occupational classification is based on a uniform set of job descriptions which is designed to take account of inter-establishment variations in duties within the same job. The job description of a guard contained in the appendix to the foregoing Federal wage survey, among others, is a person who "performs routine duties, either at fixed post or on tour, maintaining order, using arms or force where necessary. Includes gatemen who are stationed at gate and check on identity of employees and other persons entering, "and the job description of a watchman set forth in the aforementioned appendix is a person who "makes rounds of premises periodically in protecting property against fire, theft, and illegal entry." According to a Federal wage survey dated April 1960, the average straight-time hourly earnings of 2459 watchmen employed in the locality were $1.83 during the period involved (Bulletin No. 1265, page 15, United States Department of Labor, Bureau of Research Statistics). The foregoing wage survey showed that 1319 watchmen earned at least $1.80 an hour and the vast majority earned a greater hourly sum.

On the credible evidence and testimony in the record including the foregoing wage surveys conducted by the Bureau of Labor Statistics of the United States Department of Labor, we find that the majority of guards employed in the locality during the period involved received a basic hourly wage of at least $1.80.

Appeal Board Opinion and Decision: On the basis of the facts found as herein above set forth, we conclude that $1.80 an hour represents the prevailing wage for the work involved herein and that the wages paid to those claimants who left the employment and the wages offered to those claimants who refused offers of re-employment were substantially less favorable to them than the wages prevailing for similar work in the locality.

The employer contends that guards or watchmen employed by detective and guard service agencies in the locality should be treated separate and apart from guards or watchmen employed in all other industries, at least for the purpose of determining prevailing wages. For a number of reasons, we overruled such contention raised by the same employer in Appeal Board, UCX-16-61 which is incorporated herein by reference as though fully set forth. Moreover, the precise question was considered by the Court in Matter of Shotkin, 10 App. Div. 2d 738, reversing Appeal Board, 63,045-58, where it was stated that "certainly in a case such as this, involving work of a nature utilized in all industries, the determination of prevailing rate under subdivision (d) is not to be reached upon the application of so narrow a test as that afforded by a particular industry; absent proof of some unusual or exceptional factor or condition."

The record contains no cogent and convincing proof of any unusual or exceptional factor or condition which would warrant a deviation from the principle enunciated in Matter of Shotkin, supra. The business of the employer is analogous to that of agencies engaged in furnishing temporary or permanent office workers, such as clerks, typists, stenographers, secretaries, bookkeepers and receptionists. In no case has it been suggested to us that such agencies compose a separate and distinct industry which is privileged to fix a so-called prevailing wage based solely upon salaries paid by them to office workers and without taking into consideration the actual prevailing wages for all such workers in the locality. To accept the employer’s concept that there is, or should be, a prevailing wage applicable solely to guards or watchmen employed in detective and guard service agencies, as distinguished from guards or watchmen employed in all other industries, would inevitably result in depressing wages of workers in the former category. Such a result would violate the clear purpose and intent of Section 593.2(d) of the Law and would also be contrary to the rule established in the Shotkin case, supra.

Inasmuch as the claimants were offered re-employment with their former employer at wages which were approximately 30 percent below those prevailing for similar work in the locality, we hold that the offered wages are substantially less favorable to the claimants than those prevailing for similar work in the locality (Appeal Board, 74,299-60; 71,720-59; 59,573-57; 59,248-57; 57,381-56). That claimant W.H.S. obtained employment in the locality as a guard with an international organization at an hourly wage of $2 (almost double the wage offered to claimant by his former employer) is a further indication of the disparity of the offered wages.

Nevertheless, we agree with the contention of the employer that claimants (except W.H.S., T.R.G. and A.A.R. who were not last employed by the employer) voluntarily left their employment without good cause, irrespective of whether their wages were substantially below those prevailing for similar work in the locality. The following reasoning of the Court in Matter of Sellers, 13 App. Div. 2d 204, reversing Appeal Board, 70,414-59 applies:

…Claimant is not entitled to benefits after a voluntary separation from employment solely because of dissatisfaction with wages, even if they were less than the prevailing wage, unless he comes within the literal terms of an exception contained in Section 593, subdivision 1(a) …No circumstances whatever "developed in the course of such employment" which would have justified claimant in refusing the employment in the first place. His wages were not reduced during the employment, they were raised. If we assume his wages were sub-standard when he quit, they were sub-standard when he took the job. Nothing "developed in the course of such employment" which would justify a refusal of the job in the first instance, and we may not ignore those plain words in the statute. To hold otherwise would permit an employee, fully aware of the wage to be paid, to take a job and use that job for the necessary qualifying period of employment, and then, for no reason not present in the first instance, voluntarily quit and receive unemployment insurance benefits. Such an interpretation is unrealistic and entirely beyond the real purpose of the statute.

We do not agree, however, with the contention of the employer that those claimants who refused the offers of re-employment lacked good cause, irrespective of whether the offered wages were substantially below those prevailing for similar work in the locality. The employer argues that the provisions of Section 593.2(d) of the Unemployment Insurance Law do not apply to a base period employer but only to all other employers. Such an interpretation appears to be wholly unwarranted and contrary to the plain language and clear intent of the statute, which makes no differentiation whatsoever between a base period employer and other employers.

The application of the employer for a consolidation of these cases because they involve a common factual situation and similar issues, is granted.

The initial determinations of the local offices holding claimants A.F., D.Y., J.F.M. and C.W.K., Jr. eligible to receive benefits without disqualifying conditions are overruled, because they voluntarily left their employment without good cause.

The initial determinations holding claimants W.H.S., T.R.G. and A.A.R. eligible to receive benefits without disqualifying conditions remain in effect, because they refused employment with good cause.

The decision of the referee filed on April 27, 1961 (as to claimants W.H.S., A.F. and D.Y.) is modified accordingly. The decisions of the referee filed on April 25 and May 5, 1961, respectively (as to claimants T.R.G. and A.A.R.) are affirmed. The decisions of the referee filed on April 27 and May 18, 1961, respectively, (as to claimants J.F.M. and C.W.K., Jr.) are reversed. (September 1, 1961)

COMMENTS

The other principles which the decision reflects are not new, and no specific method for establishing the prevailing rate of wages is enunciated in the decision.

The principle that prevailing wages for a common occupation are as a rule to be determined on an all-industry basis, rather than on the basis of the wage scale for the occupation in a particular segment of industry, has been reported in Release A-750-1517; (Matter of Shotkin).

The principle that refusal of a recall to a job may result in a disqualification, although the claimant had previously left the same job voluntarily, has been reported in Release No. A-750-1101; (Matter of Crowe).

The principle that substandard wages are generally not grounds for holding that a quit is with good cause has been reported in Release A-750-1550; (Matter of Sellers).




A-750-1560
Index No. 1320C-11
1320D-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 5, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Lack of Work or Industrial Controversy, Question of

Appeal Board Case Number 82,557-61 et al

LAYOFF PRIOR TO STRIKE – GRADUAL SLACKENING OF OPERATIONS

QUESTION OF WHETHER LOSS OF EMPLOYMENT IS DIRECTLY ATTRIBUTABLE TO STRIKE

  1. If an employer decides to cease operations during negotiations for a new union contract because the union threatens a strike and refuses to give assurance of continued processing of material which is subject to spoilage, workers who are laid off for this reason are subject to the suspension provisions since the economic pressure so applied means that there is an industrial controversy within the meaning of the Law (Distinguished from Matter of Keane, A-750-1428).
  2. Even though the employer has work available for them, the suspension provisions apply to non-striking workers (i.e., maintenance men, office staff) who are laid off because continuation of their operations is not feasible for reasons created by a strike, such as lack of heat as a result of non-delivery of fuel oil due to picketing. (Distinguished from Matter of Wentworth, A-750-1553).

Appeal Board Decision

These are cross appeals. Claimant, M.C. and other claimants covered by a stipulation herein, production workers similarly situated, appeal from the decision of the referee filed June 2, 1961 insofar as it sustained the initial determinations of the respective local offices suspending the accumulation of their benefit rights during a period of seven consecutive weeks effective the day after the dates of the loss of their respective employments, on the ground that they lost their employment because of an industrial controversy in the establishment in which they were employed.

The Industrial Commissioner appeals from the decision of the referee insofar as it overruled the initial determinations of the respective local offices suspending the accumulation of the benefit rights of claimant A.B. and other maintenance workers similarly situated and of T.B.S., payroll clerk, during a period of seven consecutive weeks effective the day after the dates of the loss of their respective employments, on the ground that they lost their employment because of an industrial controversy in the establishment in which they were employed.

Combined hearings were held before the referee at which all parties were accorded a full opportunity to be heard and at which a number of claimants, their witness, representatives of and an attorney for their unions and representatives of the employer and of the Industrial Commissioner appeared and testimony was taken. The Board considered a brief submitted on behalf of the Industrial Commissioner and written statements submitted by claimants on appeal. Based on the record and testimony in this case, the Board makes the following

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:

Hearings were held at which claimants, with the exception of L., representatives of two unions, the attorneys for one of the unions representing some of the claimants, witnesses in behalf of claimants and representatives of the employer and of the Industrial Commissioner appeared. Testimony was taken.

Claimants filed their respective claims for benefits between January 16, 1961 and February 20, 1961. By initial determination their respective benefit rights were suspended for seven consecutive week periods commencing with various dates between January 13, 1961 and February 16, 1961, because of loss of employment due to a strike, lockout, or other industrial controversy in the establishment in which they were employed.

The case of claimant M.C., who was a production worker, and the case of A.B., who was a maintenance worker, have been selected as test cases because they wee deemed typical of the situation and issues involved in the cases of a number of other production workers and maintenance workers who were employed in the same plant of the employer. It was stipulated and agreed by representatives of the production workers’ and maintenance workers’ unions and by representatives of the employer and of the Industrial Commissioner, that the decision in the cases of C. and B. shall apply to the cases of the other production and maintenance workers, without notice of hearing or further proceedings therein, subject to each claimant’s right of appeal.

Claimant L., who was employed as a chauffeur, defaulted in appearing at the hearings and was not represented at the hearings by any union or otherwise. He is not covered by the above-mentioned stipulation.

The employer operates a plant for the manufacture of foam rubber cushions, pillows and mattresses. Its production workers are members of Local 14-579 of the Oil, Chemical, and Atomic Workers International Union. Its maintenance workers are members of Local 30 of the International Union of Operating Engineers.

The employer’s contract with the Production Workers’ Union expired on December 31, 1960. Negotiations were being held to attempt to agree upon a new contract. No such agreement was reached by December 31, 1960, and at the request of the employer, the union extended the contract for two weeks until January 15, 1961, while negotiations continued. By January 10, the employer and the union were still unable to agree upon the terms of a new contract. The union scheduled a meeting of its members for January 15, to take a strike vote. On January 10, the employer was contemplating ordering additional raw materials to continue steady production beyond January 15. However, before doing so, it asked the union for an assurance that there would be a further extension of the contract beyond January 15, if their points of difference were not reconciled by that time. The union refused to give any such assurance to the employer. The process for the manufacture of the employer’s foam rubber products requires three days to complete. Once the process is commenced, if an interruption should occur, the materials being processed would be ruined. To avoid the risk of spoilage of materials if a strike were to occur on January 15, and because the union had refused to assure the employer of continued operations beyond the work-week ending Friday, January 13, the employer refrained from ordering new raw materials for manufacturing operations and decided to merely continue production until its supply of raw materials on hand was exhausted. The employer could have obtained a delivery of additional raw materials on hand was exhausted. The employer could have obtained a delivery of additional raw material overnight if it were assured that a strike would not be voted on January 15, to prevent continued operations. On Thursday, January 12, the supply of raw material on hand was finished, and further production operations necessarily ceased. Accordingly, approximately 22 of the 29 production workers, including claimant C. were laid off on that day. The remaining seven production workers were permitted to come in on January 13 to clean up, and they were laid off at the end of that day. On Sunday, January 15, a strike of the production workers occurred and a picket line set up. The controversy ended on March 17, 1961.

The maintenance workers and their union were not involved in the controversy. They did not strike. On the contrary, they crossed the picket line of the production workers and continued to work through January 20, when they were laid off by the employer because its fuel oil supply was exhausted and the premises were without heat. The maintenance workers were willing to continue working beyond January 20, even though the premises were unheated, but the employer would not agree to this because the weather was intensely cold and it feared that the sprinkler system might freeze and be damaged. Accordingly, the employer laid off all the maintenance workers on January 20, after having the sprinkler system emptied and disconnected to prevent freezing. The employer admitted that despite the strike of the production workers there was plenty of work for the maintenance men beyond January 20, and that were it not for the lack of heat in the premises, it would have kept the maintenance men working beyond that date. The employer normally obtained its fuel oil from an outside oil company wholly removed from the employer’s premises. The fuel oil was normally used to produce heat necessary in the manufacturing operation, in addition to supplying heat for the building. Because of the production workers’ picket line, the employer was unable to obtain fuel oil from its usual supplier to heat its building after the production workers’ strike began on January 15.

Claimant T.B.S. was a payroll clerk in the employer’s office. She was not in any union, nor was she involved in the controversy between the production workers and the employer. She crossed the picket line and continued working after the strike began until January 20, when she was laid off by the employer because of lack of heat in the premises. If there had been heat, she would have continued on the job despite the strike of the production workers.

Opinion: While we have adopted the referee’s findings of fact, we are not in accord with the conclusions he reached therefrom.

We are in accord with the referee’s conclusion that the evidence clearly establishes that all of the production workers lost their employment because of an industrial controversy in the establishment in which they were employed. We agree with his conclusion that the fact that the production operations ceased a few days before the strike because the employer’s supply of raw material was exhausted does not take the case of the production workers outside the scope of Section 592 of the Unemployment Insurance Law.

The evidence establishes that the employer allowed his supply of raw materials to become depleted and it did not order new supplies solely because of its apprehension and anticipation of a strike by the production workers. Its fears of a strike scheduled for January 15 were confirmed on January 10, when the production workers’ union refused to grant the employer an extension of negotiations beyond January 15. At that time, negotiations between the employer and the union representing the production workers were stalemated. It is immaterial that economic reasons may, in part, have motivated the employer’s actions. The basic reason for the loss of employment by the production workers cannot be ascribed to a lack of work in the usual economic sense, but was due to an actual and real existence of an industrial controversy leading to suspension of operations by the employer.

We are not unmindful of the decision of the Courts in Matter of Keane, et al, 6 N.Y. 2d 910, affirming 2 App. Div. 2d 148, affirming Appeal Board, 47, 366-54, which is distinguishable from this case. In Matter of Keane, the employer laid off some workers (not its entire force) because of a shortage of work caused by the fact that the employer did not accept new work from its customers in apprehension that pending negotiations with the union involved might result in a strike.

However, despite the employer’s fears, no strike ever eventuated. In fact, work at the employer’s establishment and negotiations with the union proceeded during the entire period in question peacefully and without appreciable incident until a successful conclusion. The Courts sustained the Board’s finding that no strike, lockout or other industrial controversy ever existed. In this case, the threat of a strike was not only real, but immediately ripened into an industrial controversy attended by picketing. The timetable of events is significant to support this conclusion. The contract with the production workers’ union expired December 31, 1960. Negotiations prior thereto for a new contract failed to achieve that result. By mutual consent, the contract was extended to January 15, 1961, while negotiations continued. On January 10, the employer asked the union for assurance of a further extension of the contract beyond January 15, so that it could order additional raw materials to continue steady production beyond January 15. The union refused to given such assurance. Since it took a minimum of three days to process the employer’s products, and since materials in process would be ruined if a strike were to occur on January 15, and since the union refused to assure the employer of continued operations beyond the week ending Friday, January 13, the employer refrained from ordering new raw materials and decided to continue production only until its supply of raw materials was exhausted. On Thursday, January 12, the supply of raw materials was exhausted and production ceased, whereupon 22 of the 29 production workers were laid off. The remaining seven production workers worked on Friday, January 13 to clean up and when this assignment was completed, they were laid off at the end of that day. The strike commenced and a picket line was set up on Sunday, January 15.

Unlike the situation in Matter of Keane, there was not merely the threat of a strike but the layoffs were the direct result of the union’s refusal to continue the extension of a contract and its refusal to assure the employer of continued operations beyond January 13 which would have permitted the continued processing of the employer’s materials. These refusals on the part of the union was part of its plan of economic pressure to compel the employer to renew the contract between them and were in keeping with its intention to strike on January 15, when the extension of the contract expired. These refusals on the part of the union were just as much a part of the industrial controversy between it and the employer as was the picket line, which was, set up immediately before a new workweek could commence. It is therefore clear that the production workers lost their employment directly because of an industrial controversy in the establishment in which they were employed.

We are also not unmindful of our decision in Appeal Board, 65,403 where the facts also were markedly different. In that case, the employer, a dress contractor, was not furnished with work by its jobber because the jobber feared the outbreak of a strike in the industry. Accordingly, as each claimant completed the work on hand, he was laid off by his employer. When the industry wide strike took place later, the claimants therein had already been laid off because of lack of work. Relying upon the Court’s decision in Matter of Keane, we held that claimants’ unemployment resulted from a lack of work, a condition which resulted from the fact that the claimants’ employer was not furnished with work from an outside source. Unlike the situation in this case, the union involved was not asked to permit its members to continue operations while the negotiations for a new contract were continued. The lack of work in the dress industry was occasioned solely by the exercise of the prerogative of the jobber not to supply materials to the contractor so that financial loss would be minimized when and if a strike eventuated. In this case, when the strike commenced on January 15, 1961, the production workers had been laid off solely because the union exercised its prerogative to refuse to allow the workers to continue on the job while negotiations continued and to refuse to extend the contract. These refusals were a manifestation of the industrial controversy precipitated by the production workers’ union, and we must hold that the loss of employment by the production workers was due to such industrial controversy.

We are not in accord however with the referee’s disposition of this case with respect to the maintenance workers and the payroll clerk. The referee concluded that Matter of Wentworth, 10 N.Y. 2d 13, affirming 10 App. Div. 2d 504, affirming appeal Board, 65,794 was authority to allow the claim for benefits by the maintenance workers.

Matter of Wentworth is not in point. The claimants there were employed as carpenters and timbermen by a construction firm. An industry-wide strike was called by a teamsters’ union. As a result, the truck drives of the concern from which the employer obtained its concrete and the drivers of some of the employer’s dump trucks went on strike. Since there were no deliveries of concrete necessary for such claimants to continue work, they were accordingly laid off. The evidence therein also indicated that unfavorable weather conditions were a factor in the employer’s decision to curtail its operations. The Court held that such claimants’ loss of employment occurred because of a combination of unfavorable weather conditions and the strike, not by its employees, but by the employees of the employer’s suppliers. The rationale of that decision was that the provisions of Section 592.1 are not applicable where the claimants’ loss of employment was not attributable to the participation of the employer's’ truck drivers in the teamster strike and that the industrial controversy which gave rise to the layoff did not occur in the establishment in which such claimants were employed.

The loss of employment by the payroll clerk and maintenance workers was directly attributable to an industrial controversy in their place of employment. The maintenance workers were employed by the same employer and worked in the same industrial establishment as the striking production workers. The following language of the Court in Matter of Lasher, 279 App. Div. 505, reversing Appeal Board, 22,171 is particularly pertinent:

Under the unemployment insurance law adopted in this State, it is of no consequence whatever that claimants were not on strike; that they were not aiding the strike, financially or otherwise; that they were employed in a separate branch of work, or that they lost their employment through no fault of their own. Such elements were significantly omitted by the Legislature when our statute was enacted…

These claimants were employed by the same employer as the striking steel workers, and were employed at the same plant and upon the identical premises. The work which they were performing was as essential to the production of steel at the plant as the work of the steel workers. The fact that at other times they might be employed elsewhere is of no importance. We must deal with the circumstances existing at the particular time when the unemployment arose. At that time they were clearly employed in the "establishment" where the industrial controversy arose. To hold otherwise would be tantamount to a holding that employees regularly working at the same plant but in a different department, or doing a different kind of work, or belonging to a different union than striking employees, would not be employed in the same "establishment."" Clearly this was not the intent of the statute.

Accordingly, we deem it immaterial that there was no dispute between the employer and the maintenance workers’ union or between the employer and the payroll clerk and that they were not directly involved in the production workers’ strike. We do deem material that fact that as a result of the strike by the production workers and the establishment of picket lines by them, the employer could not obtain the materials requisite for it to continue the operation of its plant and office. The fact that the employer could not obtain deliveries of fuel oil to heat its premises and consequently could not continue its operations were the direct consequence of the industrial controversy initiated and continued by the production workers. The work which the maintenance workers and the payroll clerk performed was as essential to the manufacture of the employer’s product as was the work of the production workers. The closing of the plant stemmed directly from the effective economic weapon of the striking workers directed against the employer. To ignore the direct link in the chain of causation between the strike and the cessation of operations by the employer would be to ignore the realities of the situation.

We hold that all of the claimants herein lost their employment as a result of an industrial controversy in their establishment within the meaning of Section 592.1 of the Law.

Decision: The initial determinations of the respective local offices suspending the accumulation of benefit rights by claimants during a period of seven consecutive weeks effective the day after the dates of their respective losses of employment because of an industrial controversy in the establishment in which they were employed are sustained. The decision of the referee is modified accordingly and, as so modified, is affirmed. (September 25, 1961)

COMMENTS

This decision is self-explanatory. The court decisions cited by the Board were released in the Interpretation Service as follows: Matter of Keane (A-750-1428); Matter of Wentworth (A-750-1553)




A-750-1561
Index No. 1740A-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 9, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Wages – Insufficient

Appeal Board Case Number 82,614-61

VOLUNTARY LEAVING OF EMPLOYMENT – WAGES; MINIMUM WAGE LAW

Leaving employment because of insufficient wages is with good cause if the wages are less than those prescribed by a Minimum Wage Law since under such circumstances Matter of Sellers (A-750-1550) is not applicable.

Referee’s Decision: The referee overruled the initial determination of the local office holding claimant eligible to receive benefits effective January 23, 1961, without disqualifying conditions and sustained the employer’s objections to the payment of benefits to claimant on the ground that claimant voluntarily left his employment without good cause.

Appealed By: Claimant

Findings of Fact: Claimant was employed on or about May 15, 1959, by a company which operated a cigar and novelties store as a watchman and general helper. He was a part-time worker, working at least four hours a day at a salary of $20 per week. During the month of December 1960 claimant was informed by a customer that he was receiving less wages than the New York State Minimum Wage Law permitted. On January 3, 1961 claimant filed a claim with the Department of Labor for back salary pursuant to the terms of the Minimum Wage Law and an investigation was made of the employer’s books and records. Claimant thereafter instituted a civil action against the employer to recover the sum of $2,600 allegedly due him as the difference between the weekly pay he received and the legal minimum wage to which he was entitled. This action was thereafter compromised and settled for the sum of $450 which the employer paid him. The employer conceded that the salary paid to claimant was less than the Minimum Wage prescribed by Law.

Claimant’s last day of employment was January 9, 1961. He filed a claim for benefits effective January 23, 1961. He informed the insurance office that he lost his employment because the employer discharged him when he refused to sign a statement for the Department of Labor certifying that he had worked only three and one-half hours a day. In response to an inquiry from the insurance office, the employer reported that it did not discharge claimant, but that he left of his own accord without previous notice.

Appeal Board Opinion and Decision: Even if we were to accept the employer’s version of the facts, there would be no basis for concluding that claimant left his employment without good cause. The evidence establishes that claimant had good cause to leave the job since he was not required to continue to work for a salary which concededly was less than the minimum prescribed by Law.

The employer contends that claimant lacked good cause to leave his employment, because the salary was the same at which he was hired. The employer further contends that under the authority of Matter of Sellers, 13 App. Div. (2d) 204, reversing Appeal Board, 70,414, since nothing occurred during the course of claimant’s employment which would have justified his refusal to accept the employment in the first instance, the leaving of his employment is without good cause. Such contentions lack validity.

Matter of Sellers is not applicable to the facts in this case since it has here been established that claimant and the employer entered into a contract of hire which was illegal and contrary to public policy in that it provided for the payment of a wage less than that prescribed by the Minimum Wage Law. The Court, in its decision in Matter of Sellers, supra, did not contemplate that the principles therein enunciated should apply to an illegal contract of hire.

Under the mandate of the Legislature, the Department of Labor prescribed a minimum wage to be paid to employees in this state and it would indeed be anomalous to rule that a worker who refuses to work at a lesser wage lacks good cause for refusal.

Accordingly, we conclude that the circumstances under which claimant’s employment terminated did not produce any disqualifying conditions.

The initial determination of the local office holding claimant eligible to receive benefits effective January 23, 1961, without disqualifying conditions is sustained. The objections of the employer are overruled. The decision of the referee is reversed.

COMMENTS

Although this decision deals with voluntary leaving of employment because of illegal employment relating to wages, the same conclusion would result in any voluntary leaving where the contract of hire contains other illegal conditions.




A-750-1562
Index No. 1020-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

November 28, 1961

INTERPRETATION SERVICE – BENEFIT CLAIMS
HEARING AND APPEALS
Rules of Appeal

Appeal Board Case Number 85,187-61 et al

DETERMINATION NOT ADVERSE TO CLAIMANT – RIGHT TO HEARING

A claimant for benefits has no right to a hearing on a denial of his request for disclosure of information furnished by his employer when no initial determination adverse to him is involved.

The claimants appeal from the decision of the referee filed September 6, 1961 dismissing the claimants’ request for a hearing.

A combined hearing was held before the referee at which all but four of the claimants herein, representatives of their union, a witness for the claimants and a representative of the Industrial Commissioner appeared and testimony was taken. Written statements submitted on behalf of the claimants were considered by the Board on appeal.

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

Findings of Fact: Claimants, each of whom was employed for varying periods in various occupations by a manufacturer of business machines, filed for benefits and initial determinations were thereafter issued holding that each claimant was eligible to receive benefits without disqualifying conditions. No objection to such initial determinations was interposed by the employer and each of such initial determinations continued in effect during the period here at issue.

Notwithstanding that each of the claimants was found to be eligible for benefits without disqualifying conditions, their representative on their behalf demanded the right to inspect information received by the insurance office from the employer in response to the usual inquiry directed to employers by the Division of Employment upon the filing of claims for benefits. Such request was denied by the Industrial Commissioner on the ground that none of the claimants was adversely affected by such information and, therefore, a disclosure of such information to the claimants is prohibited by law. Claimants protested the denial of their request and demanded a hearing thereon. Claimants’ representative requested a further hearing before the Board in connection with their appeal from the referee’s decision.

Appeal Board Opinion and Decision: Section 621.3 of the Law authorizes the appeal Board to decide any case to it on the basis of the record and evidence previously submitted or it may, in its discretion, hear argument or hold a further hearing. We are satisfied that the record below is adequate to permit a decision of this appeal and accordingly, claimants’ request for a further hearing before the Board is denied.

A claimant for benefits has no basic right to a hearing except as is specifically provided in the Unemployment Insurance Law, and a referee is without jurisdiction to adjudicate any matter not specifically authorized by the provisions of the Unemployment Insurance Law. As a claimant for benefits, claimants’ right to a referee hearing is governed solely by the provisions of Section 620.1 of the Law. It is there provided that a hearing may be requested only by a claimant "who is dissatisfied with an initial determination of the claim for benefits. In the instant case, since the initial determination with respect to the claims for benefits were not adverse to any of the claimants, none of them has a basis for dissatisfaction therewith, and consequently, they have no right to request a hearing with respect to such initial determinations. The denial by the Commissioner of the requests of the claimants for the disclosure of information does not constitute an initial determination of the claim for benefits. An initial determination is defined in Section 597 of the Law. The ruling of the Industrial Commissioner denying claimants’ request does not relate to the validity of the claims nor to the amount of benefits payable to the claimants.

It would appear from the argument advanced on claimants behalf that they claim to be aggrieved by the Commissioner’s failure to permit them to inspect the information furnished by the employer in that they are deprived of the opportunity of learning what reasons were advanced by the employer for the termination of claimants’ employment with the result that they are unable to use that information in any proceedings in which they may become involved for the purpose of attempting to establish that the claimants were wrongfully discharged by the employer. In that regard it is appropriate to point out that under the provisions of Section 537 of the Law, information acquired from employers pursuant to the provisions of the Unemployment Insurance Law, shall be for the exclusive use and information of the Commissioner in the discharge of his duties under that Law and shall not be used in any Court, in any action or proceeding pending therein.

It is further contended on behalf of the claimants that they are entitled to the information which they seek under the authority of that portion of Section 537 of the Law which permits such information to be made available to parties affected in connection with effecting placement. It is the contention of the claimants that the information sought is necessary to assist them in obtaining other employment. There is no merit to the contentions so advanced since there is a total lack of proof purporting to establish that such information would in any wise affect the procurement of other work by claimants and for the further reason, that the Law specifically vests in the Industrial Commissioner the discretion of determining whether the information should be made available for such purpose. It does not appear that the exercise of such discretion by the Industrial Commissioner in the instant case was arbitrary or capricious. Under the circumstances, we conclude that claimants had no legal right to a hearing with regard to their protest of the Commissioner’s denial of their request, and that the referee was without jurisdiction to adjudicate the dispute with respect to such disposition by the Commissioner of the claimants’ request. The decision of the referee is affirmed. (November 16, 1961)

COMMENTS

Regardless of the principle here discussed local offices are required to process any and all hearing requests. A referee will decide whether the claimant is entitled to a hearing.




A-750-1563
Index No. 1670-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 4, 1962

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Following Spouse or Marriage

Appeal Board Case number 85,455-61

QUESTION OF WHETHER MARRIAGE IS DIRECT CAUSE FOR LEAVING EMPLOYMENT

Where claimant leaves employment upon marriage to assume the care of her infant stepson, her marriage is the direct cause and the disqualification provided for in section 593.a(b)(2) applies.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective June 17, 1961, on the ground that she voluntarily left her employment due to her marriage is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a transcribing-machine operator, was last employed from April 27, 1955 until June 16, 1961 by a shipping firm. Thereafter she went on her vacation and was due to return to work on July 3, 1961. While on such vacation, she married a widower with a 16-month-old son. Upon the marriage, the husband discharged his housekeeper who took care of his infant. Claimant then replaced the said housekeeper in the care of the child. Because of her marriage and her assumption of responsibility for the care of her husband’s child, claimant did not return to her employment.

Appeal Board Opinion and Decision: The referee concluded that the direct cause of claimant’s separation from employment was not the marriage itself but her need to care for her stepson. We do not agree with such conclusion.

The responsibility for the care of the child was assumed by claimant only because of her marriage and as a result thereof. Accordingly, claimant’s marriage was the direct cause for her withdrawal from the labor market, and therefore, the disqualification provided for in Section 593.1(b)(2) applies.

The initial determination of the local office disqualifying claimant from receiving benefits effective June 17, 1961 on the ground that she voluntarily left her employment due to her marriage, is sustained. The decision of the referee, insofar as appealed from, is reversed. (December 6, 1961)




A-750-1565
Index No. 1605 D.2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 4, 1962

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Effective and Termination Date

Appeal Board Case number 82,477-61

DISQUALIFICATION – TERMINATION DATE; CONTINUING PART-TIME EMPLOYMENT

"Subsequent" employment, which terminates a disqualification, does not have to be new employment so that part-time employment continuing from before the date on which a disqualification was incurred meets the requirement of the Law.

Referee’s Decision: The initial determination of the local office holding that a disqualification effective January 14, 1961 on the ground that claimant voluntarily left his employment without good cause by provoking his discharge, was not terminated on the basis of claimant’s employment which had terminated on February 17, 1961 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 sales correspondent, filed an original claim effective January 16, 1961, and an additional claim effective February 20, 1961. He was disqualified because of voluntary leaving of employment without good cause by initial determination effective January 14, 1961, on the ground that he provoked his discharge because of excessive tardiness. By another initial determination it was ruled that the part-time employment of three days per week in each of four weeks which claimant had at a wine and liquor store, did not terminate the prior disqualification.

For three and one-half years ending January 13, 1961, claimant was employed by a manufacturer of recording instruments as a sales correspondent at $86 per week. He was discharged on the latter date because of an excessive record of tardiness. Claimant is not disputing the initial determination, which ruled that his actions were tantamount to a voluntary leaving of employment without good cause, and that he provoked his discharge. He contends, however, that the part-time employment, which he had on three days in each of four weeks beginning with the week ending January 22, 1961, and ending February 19, 1961, terminated the disqualification.

Claimant had been employed part-time by a retail liquor store as a salesperson from September 1960 through February 17, 1961, working three nights per week at a salary of $25 per week. He continued in his part-time employment after being discharged from his full-time employment until February 17, 1961, when he voluntarily left his part-time employment because he could not maintain himself on the meager income he was receiving from his part-time employment. Claimant’s benefit rate is $44 per week. Had he continued in his part-time employment, he would have accumulated only one effective day in each statutory week and would have received $11 in benefits plus the $15 which he earned from his part-time employment or a total of $26 per week.

Appeal Board Opinion and Decision: Since the referee sustained the initial determination disqualifying claimant from receiving benefits effective January 14, 1961, for having voluntarily left his employment without good cause, there remained solely the issue whether claimant’s part-time employment for at least four weeks in each of which he worked three days, served to terminate the disqualification within the meaning of section 593.1(a) of the Unemployment Law which provides:

No days of total unemployment shall be deemed to occur after a claimant’s separation without good cause from his last employment prior to the filing of his claim until he has subsequently worked in employment on not less than three days in each of four weeks or earned remuneration of at least $200. (Underscoring supplied).

The mandate of the statute is that a disqualification is terminated by employment of the prescribed duration subsequent to the effective date of the disqualification. There is no requirement that the subsequent employment must be new employment. Nor is the mandate for the termination of such disqualification nullified by any circumstances attendant upon the termination of the subsequent employment. If the circumstances under which the subsequent employment terminated produce a basis for disqualification, a separate initial determination providing for a new disqualification, effective the day after the termination of the subsequent employment, must be made by the local office.

Since the local office did not issue an initial determination imposing a disqualification on the basis of the termination of the subsequent employment, the referee had no jurisdiction to make the ruling that claimant had good cause for the voluntary leaving of his part-time employment.

The record clearly establishes that the statutory conditions necessary to terminate the disqualification effective January 14 were met by claimant’s employment up to February 17 and, therefore, such disqualification was terminated upon claimant’s refiling effective February 20. The issue as to whether or not the leaving of the subsequent part-time employment was without good cause within the meaning of the Law is referred to the local office for appropriate action.

The initial determination of the local office holding that the part-time employment of three days per week in each of four weeks did not terminate the prior disqualification, is overruled. The issue as to whether or not the termination of this employment was under disqualifying conditions is referred to the local office for appropriate action. The decision of the referee is affirmed. (December 18, 1961)

COMMENTS

Although the reported case concerns a voluntary leaving disqualification, the same conclusion would obtain regarding disqualifications for refusal and misconduct.




A-750-1567
Index No. 1640A-4
1740A-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

February 14, 1962

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Insufficient Wages

Appeal Board Case Number 84,943-61

VOLUNTARY LEAVING; TRANSFER TO LOWER JOB – WAGES INSUFFICIENT

Claimant who had accepted transfer to a job in a lower classification and with reduced wages in accordance with a "bumping" privilege of the union contract does not have good cause to leave employment in such classification after three months since nothing developed during the three months period to justify his refusing the employment in the first instance (See Matter of Sellers – A-750-1550).

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective April 4, 1961, on the ground that he voluntarily left his employment without good cause by provoking his discharge is overruled.

Appealed By: Employer

Findings of Fact: Claimant was employed 13 years until April 4, 1961. During a part of his employment, claimant had been employed as a yard laborer at $2.25 per hour but for several years until December 10, 1960, claimant had been employed as a tapper at a salary of $2.65 per hour.

Claimant is a member of the union, which is in contractual relationship with the employer. Under the union contract claimant was entitled to certain "bumping" privileges. Thus, as a result of a curtailment in production, claimant was temporarily transferred to the classification of yard laborer at $2.25 per hour. Claimant worked as a yard laborer from January 10 to March 27, 1961. About this time, he notified the employer that he was physically unable to perform the work of yard laborer. Claimant was examined by the plant physician and was certified to be capable of performing the duties of yard laborer. Despite this finding, claimant did not report for work from March 27 until April 4, 1961. During this week, the employer communicated with the claimant and advised him that unless he reported for work or presented medical evidence as to his incapability, he would be discharged. Claimant reported for work on April 4 worked for one hour and then left. He did not present a medical certificate from his physician. He had not been under the care of his physician until April 7. Claimant presented a certificate from his physician dated May 2, 1961 indicating that claimant was under this care from April 7 to May 2 and that in his opinion claimant should not work as a laborer.

Appeal Board Opinion and Decision: We do not agree with the conclusion of the referee, that claimant as justified in leaving his employment because of his down-grading to a lower job. Claimant accepted the lower classification under his union contract and continued to work in this classification for a period of three months.

In Matter of Sellers, 13 App. Div. 2nd 204 reversing appeal Board 70,414, the Court held that a claimant is not entitled to benefits after a voluntary separation from employment solely because of dissatisfaction with wages, unless circumstances developed in the course of such employment which would have justified the claimant in refusing such employment in the first instance. Claimant had accepted the reduction in wages and had continued to work in the new classification, so that nothing had developed during the three-month period in which claimant had worked in the new classification to justify his refusing employment in the first instance.

The sole issue therefore is whether claimant provoked his discharge by his failure to present medical evidence as requested by his employer. Since the employer’s physician found that claimant was capable of working in his assignment, it was incumbent upon the claimant to comply with the employer’s request by furnishing contrary information, if any, from his own physician. Claimant did not comply with the request because he did not visit his physician until several days subsequent to his discharge. His failure to visit his doctor supports the opinion of the plant physician that claimant was in sufficiently good health so as not to require medical care and to be capable of performing his assigned work.

Claimant was aware that his failure to furnish the required information to his employment would result in his discharge. We conclude that claimant provoked his discharge by his failure to comply with a reasonable request of his employer.

The initial determination of the local office disqualifying claimant from receiving benefits effective April 4, 1961, on the ground that he voluntarily left his employment without good cause by provoking his discharge is sustained. The decision of the referee is reversed. (February 7, 1962)




A-750-1568
Index No. 1250 E-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 2, 1962

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Hours – Refusal of Full-Time

Appeal Board Case Number TEC-283

SHORT-TIME WORKER REFUSING EMPLOYMENT FOR OTHER THAN PERSONAL REASONS

A claimant, although he has a work history as a short-time worker, who is willing to accept full-time employment (See section 596.3) may be disqualified for refusing such employment when the reasons for the refusal are other than a desire for short-time employment.

Referee’s Decision: The initial determination of the local office disqualifying claimant, filing for benefits under the Temporary Extended Unemployment Compensation Act of 1961, from receiving benefits effective September 14, 1961, 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: Claimant, a transcribing machine operator had a work history as a short-time worker. She last worked on December 31, 1960 at a terminal salary of $87 per week. Her working hours were from 9:30 a.m. to 4:00 p.m. On September 14, 1961, claimant advised the local office that she was willing to accept full-time employment. She was then referred to a job with hours from 9 a.m. to 5:30 p.m. at a salary of $75 per week. The prevailing wage for claimant’s job classification is $74.99. Claimant refused the job because she was not satisfied with the amount of wages to be paid.

Appeal Board Opinion and Decision: The referee concluded that because claimant had a history as a short-time worker she had the right to refuse full-time employment. Although this would be the case if claimant refused full-time employment for personal reasons or

"is unable or unwilling to work usual full-time…" (Labor Law Section 596, Subdivision 3),

claimant did not refuse the offered employment because she desired to continue as a short-time worker. She had indicated to the local office that she was willing to work full-time. She refused the job because she was dissatisfied with the amount of wage offered and not because of the hours. Since the wage offered was within prevailing wages, claimant refused employment without good cause. The initial determination of the local office disqualifying claimant from receiving benefits effective September 14, 1961, on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience, is sustained. The decision of the referee is reversed. (February 15, 1962)




A-750-1570
Index 1290B-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

MAY 3, 1962

INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Wages; Prevailing, question of

Matter of Marsh
13 NY 2d 235

REFUSAL, QUESTION OF "SUBSTANTIALLY BELOW PREVAILING"

Refusal of employment is with good cause if the offered wages are more than 10% below a prevailing rate established on the basis of the weighted average of the wages received by the middle 50% of workers in the occupation.

Referee's Decision: The initial determinations of the local office disqualifying claimant from receiving benefits, effective October 4, 1961, on the ground that, without good cause, she refused employment for which she is reasonably fitted by training and experience, is overruled. The initial determination of the local office holding claimant, ineligible to receive benefits, effective October 9, 1961 on the ground that she was not available for employment is modified to be effective November 15, 1961.

Appealed By: Industrial Commissioner.

Findings of Fact: Claimant a full-charge bookkeeper was referred to employment at a wage of $90 per week. She refused the employment because of the salary.

A survey of full charge bookkeepers wages in the Metropolitan area was made in April 1961, by the Bureau of Research and Statistics, a unit specifically charged with the duty of compiling prevailing wage information for the use of the Division of Employment. The survey covered 19,651 such employees and indicated that 10,314 of them were paid wages ranging form $90 per week to $119.99 per week. The weighted average of the middle fifty percent of the survey is $103.63. The entire survey range was from $40 per week to over $145 per week. The number of persons surveyed comprised a fair sampling of the persons employed in claimant's occupation in this area.

The Industrial Commissioner determined that since the offered wage was not less than the lowest wages paid to the middle fifty percent, nor more than twenty percent below the weighted average of the middle fifty percent range, the offered wage was not substantially less favorable to the claimant than the prevailing wage.

In the period up to November 14, claimant made numerous efforts to find employment. Commencing with November 15, she desired only part time work because of caring for her children and made no personal search for work thereafter.

Appeal Board Opinion and Decision: Prior to the decision in the Matter of Sellers, 13 A.D. 2d 204, reversing Appeal Board 70,414 the median wage was accepted as the prevailing wage. The court commented thereon as follows:

"The difficulty is that 'median' wage, the wage of the middle worker, is not the same thing as 'prevailing' wage. A wage may not be said to be prevailing when substantially one half of the workers are receiving less and substantially one half are receiving more. The statute nowhere uses the word 'median.' In order to be a prevailing wage it must appear that at least a majority of workers in similar employment are receiving approximately that wage."

Based upon this portion of the Court's decision, a new method of determining prevailing wages was adopted by the Division and on the basis thereof, it was contended that the offered wage of $90 weekly was not substantially below the prevailing wage because it falls within the middle fifty percent of the wages surveyed, not withstanding that it is the lowest wage within the fifty percent bracket.

When such weighted average is the result of a substantial sampling of an occupation in an area, as in the present case, it is a statistically accurate evaluation of the approximate prevailing wage for such occupation in that geographical area. However, once the prevailing wage has been established then the question arises of how far below such prevailing wage, an offered wage may be before it is substantially less favorable to the claimant.

Section 593.2(d) of the Law, reads as follows:

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

In interpreting this provision of the Law, we have consistently ruled on an ad hoc basis, whether the salary offered was substantially less favorable to the claimant. (Appeal Board, 55,849, 55,889, 61,800 and 62,417). In most of our decisions, we held that when a wage offered was more than 10 percent below the prevailing wage, such wage was substantially less than the prevailing wage. Our interpretation of what is to be considered a wage substantially less favorable to the claimant than that prevailing in the area for similar work was affirmed in Matter of Nass, 272 A.D. 989 affirming appeal Board 14,486, Matter of Hirschberg, 273 A.D. 936, affirming Appeal Board 14,912 and Matter of Lieberman 6 A.D. 2d 933 affirming Appeal Board 59,223.

In the instant case, the salary offered was thirteen percent less than the prevailing wage. We therefore hold that the wage offered was substantially less favorable to this claimant than that prevailing for similar work in the locality. It is significant that the survey establishes that 65 percent of all the workers engaged in the work offered to claimant earn a wage which is substantially more than that which was offered to claimant, and further, that more than two-thirds of the total 10,314 workers who compose the middle fifty percent earn a wage which is more than ten percent higher than the offered wage. In our view, such differential is substantial and justifies our conclusion that the offered wage is substantially less favorable to claimant than the prevailing wage.

In Matter of Sellers supra, the Court did not pass upon what wages are to be considered as substantially less favorable to the claimant than those prevailing in the area for similar employment. It merely indicated the need for a revised statistical method of arriving at a determination of what is the prevailing wage. The Board's prior decisions on the question of what is substantially less favorable to the claimant than the prevailing wage were not revised or altered in any manner thereby. These decisions and the decision in Matter of Nass, Matter of Hirschberg, and Matter of Lieberman supra, are still controlling and the instant case must be decided in accordance therewith.

Through November 14, 1961, claimant made reasonable efforts to find employment and was available for such. Thereafter, when she discontinued her personal search for work, she became unavailable.

The initial determination of the local office disqualifying claimant from receiving benefits, effective October 4, 1961, on the ground that, without good cause she refused employment for which she is reasonably fitted by training and experience is overruled.

The initial determination of the local office holding the claimant ineligilbe to receive benefits, effective October 9, 1961, on the grounds that she was not available for employment was modified by the referee to be effective November 15, 1961, is sustained. The decision of the referee is affirmed. (April 11, 1962)

Court of Appeals Decision

DESMOND, CH. J.:

Claimant, a "full charge bookkeeper" was because of slack business conditions discharged from a job at which she had been paid $95 per week. After she had filed her claim for unemployment insurance benefits the State Employment Service got for her a job referral or offer of employment at $90 per week which she refused on the ground that the wage was inadequate. The Industrial Commissioner, thereafter ruled that she was not entitled to insurance benefits since, as he thought, she had not brought herself within the exception found in Labor Law, Section 593.2, subdivision d, which provides that such a claimant need not accept employment where: "the wages or compensation . . . are substantially less favorable to the claimant than those prevailing for similar work in the locality." The referee and in turn the Appeal Board overruled the Commissioner. When the matter came to the courts on the Commissioner's appeal, the Appellate Division affirmed. The court called attention to Section 624 of the Labor Law which limits the court's power of review to questions of law only and held that there was no power in the courts to upset factual determinations of the Appeal Board and that this particular determination was not erroneous in its construction or application of the law.

Some preliminary observations are in order. First, the question as to what is the "prevailing wage" for a kind of work in a locality is essentially one of fact. Second, if claimant falls within the exception she is entitled to reject the offer and collect her insurance benefits, whether or not an administrative official or agency or court thinks she should have taken the offered job. Third, since the statutory test is as to whether the job offer was at a wage "substantially less favorable to claimant" than the "prevailing" wage for such work in the area, the fact that the wage for the rejected employment was nearly as high as claimant had previously been earning is not only not determinative but is of little or no legal significance. Fourth, the Appeal Board is the highest administrative body in the unemployment insurance claim adjudication hierarchy and so its determination and its construction and application of the terms "prevailing wage" and "substantially less favorable" must be accepted by the courts "if it has warrant in the record and a reasonable basis in law" - in other words, if it has a "rational basis" (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N.Y. 104,108).

It would be impossible on this record for a court to hold as matter of law that the $90 weekly wage turned down by claimant was not substantially less favorable than the prevailing wage for such work in the locality. The underlying statistics were assembled by the Department's Bureau of Research and show that the range of wages paid to about 20,000 people engaged in this work (a concededly fair sampling) was from $40 to $145 per week but that about half of them were working at wages ranging from $90 to $120 weekly. The Commissioner struck from the sample the lowest and the highest quartiles as representing extreme lows and highs and then computed at $103.63 the weighted average of the middle 50 per cent. So far, his method and his mathematics were unexceptionable. But his task under the statute was to find what was "substantially less favorable" than the "prevailing wage" and this he did by holding in effect that the "prevailing wage cut-off" was $90 per week. In other words, he decided that any wage inside the middle 50 per cent (including the $90 at the bottom thereof) was not "substantially less favorable" than the "prevailing wage." The Appeal Board, however, pointed out that the same survey showed that 65 per cent of all the people engaged in this work in the area earned more than $90 (5,000 receive less than $90, 2,000 get $90 and 13,000 are paid more than $90 and up to $140) and that of the middle 50 per cent more than two-thirds receiving wages more than 10 per cent higher than the $90 offered to claimant. Therefore, held the Appeal Board, the $90 figure was "substantially less favorable" to claimant than the "prevailing" wage and claimant was within her rights in refusing it. The Appeal Board adopted no "rule" that a wage cannot be more than 10 per cent below the weighted average of the middle half, but held that the claimant could reject the job offer since its compensation was not within 10 per cent of $103.63.

Surely there was a "rational basis" for the Board's conclusion that the offer was substantially lower than the prevailing wage for such jobs in the locality, when so large a majority of all the workers were getting more and many of them much more.

The Commissioner, however, stands firm on his own directive issued in January 1962 after the court's decision in Matter of Sellers (13 A.D. 2d 204). In Sellers it had been ruled that it was arbitrary and improper to take the median or middle wage in a sample as the "prevailing wage." In the directive the Commissioner notified his staff that in cases where there is no concentration of 40 per cent or more workers at the same wage rage, the weighted average of the middle 50 per cent was thereafter to be used (instead of the "median" wage or wage of the middle worker" as the prevailing wage. As to "substantially less favorable" his order to his staff was that such a label was to be applied to any wage less than the lowest wage of the middle 50 per cent or more than 20 per cent below the prevailing rate. Applying those rules to the present case would require claimant to accept any job offered at $90 (lowest wage of middle 50 per cent). The Commissioner argues that as matter of law any wage rate anywhere within the range of the middle 50 per cent cannot be held to be substantially below the prevailing wage. The answer is that while the Commissioner could take it as an approach or rule to thumb for administrative purposes that any thing within the middle 50 percent range was not substantially below prevailing wages, he cannot be heard to assert that the Appeal Board, given by the statute appellate jurisdiction over his determinations, necessarily erred when it held in this case that a wage considerably lower than that enjoyed by two-thirds of those similarly employed was substantially less favorable than prevailing wages. It is not an error of law to say that $90 is substantially less than $103.63. The Board's holding had a not irrational basis in the particular facts, and for the courts that is the end of the matter.

The order should be affirmed, with costs.

SCILEPPI, J. (dissenting);

Claimant had been employed as a full charge bookkeeper. She was hired to work full time - from 9:00 A.M. to 5:30 P.M., five days a week at a starting salary of $90 per week. It later developed that claimant's home situation - she was married and had three small children required her to leave her place of employment before the normal 5:30 P.M.; however, she took work home in order to compensate for her early departure. Sometime during the course of her employment the salary was increased to $95 per week. After a period of approximately 13 months at said job, claimant was discharged by her employer, whereupon she filed a claim for unemployment insurance benefits.

Claimant had been receiving benefits for about 3 months when the New York State Employment Service referred her to an employer who offered her a job as a full charge bookkeeper on a full time basis from 9:00 A.M. to 5:30 P.M., five days a week at a salary of $90 per week. Claimant refused the job stating the salary was insufficient. Thereupon the Commissioner issued an initial determination terminating the payment of benefits, pursuant to Section 593, subdivision 2, of the Unemployment Insurance law [Labor Law, Art. 18], upon the ground that "the salary offered was not substantially below the wages paid for this work in this locality"; thus claimant's refusal of this otherwise suitable employment was without good cause. Claimant requested a hearing before a referee pursuant to Section 620 of the Unemployment Insurance law [Labor Law, Art. 18]. The referee overruled the Commissioner's initial determination. The Commissioner then appealed to the Unemployment Insurance Appeal Board, who affirmed the referee's decision. In the opinion rendered in connection therewith the Board stated:

"A survey of full charge bookkeepers' wages in the metropolitan area was made in April 1961, by the Bureau of Research and Statistics, a unit specifically charged with the duty of compiling prevailing wage information for the use of the Division of Employment. The surveys covered 19,651 such employees and indicated that 10,314 of them were paid wages ranging from $90 per week to $119.99 per week. The weighted average of the middle fifty per cent of the survey is $103.63. The entire survey range was from $40 per week to over $145 per week. The number of persons surveyed comprised a fair sampling of the persons employed in claimant's occupation in this area.

The Industrial Commissioner determined that since the offered wage was not less than the lowest wages paid to the middle fifty per cent nor more than twenty per cent below its weighted average of the middle fifty per cent range, the offered wage was not substantially less favorable to the claimant than the prevailing wage."

The Board went on to state, however, that the "weighted average" of the middle fifty per cent of full charge bookkeepers surveyed was the "prevailing wage for such occupation in that geographical area"; that since the wage offered the instant claimant was more than 10%, to wit, 13% below the prevailing wage as above defined, it was "substantially less favorable" within the meaning of Section 593, subdivision (d) of the Unemployment Insurance Law [Labor Law, Art. 18], and claimant's refusal to accept the employment offered was with "good cause."

The sole question present here turns on the construction of Section 593, subdivision 2, which in pertinent part provides:

"No refusal to accept employment shall be deemed with good cause nor shall it disqualify any claimant otherwise eligible to receive benefits if (d) the wages or compensation or hours or conditions offered are substantially less favorable to the claimant than those prevailing for similar work in the locality, of are such as tend to depress wages or working conditions." (Emphasis supplied)

It should be noted that this court's function regarding the issue of statutory construction, under the circumstances here, is limited. In Matter of Mounting & Finishing Co. v. McGoldrick (294 N.Y. 104), it was stated (p. 108):

"Of course, statutory construction is the function of the courts 'but where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially the reviewing court's function is limited' (Board v. Hearst Publications, 322 U.S. 111, 131). The administrative determination is to be accepted by the courts 'if it has "warrant in the record" and a reasonable basis in law' (same citation). 'The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body' (Rochester Tel. Corp. v. U.S., 307 U.S. 125,146)."

In this case the record indicates that claimant was employed as a full charge bookkeeper on a full time basis at a salary of $95 per week and refused an offer of a similar type job because the salary was $90 per week. The discussion first must center on whether there was a rational basis for the conclusion reached by the Board to the effect that the salary of $90 per week offered claimant was "substantially less favorable" than those "prevailing for similar work in the locality" within the meaning of Section 593, subdivision 2 (d), of the Unemployment Insurance Law [Labor Law, Art. 18].

In Matter of Sellers (Mays, Inc.) (13 A.D. 2d 204), involving a problem analogous to the one at bar, the Appellate Division stated (pp. 204-205):

"Claimant's wage was within the range of wages found in the survey (which varied widely), but was somewhat less than the 'median' wage. The difficulty is that 'median' wage, the wage of the middle worker, is not the same thing as 'prevailing wage.'

The survey relied upon necessarily included widely varied types of establishments and employees and included employees of widely varied abilities, experience and job performance. To arbitrarily take the middle worker's wages as the wages 'prevailing' for the particular type of work performed by claimant finds no sanction in the statute [Unemployment Ins. Law (Labor Law Art. 18) §593 (2) (d)] in judicial precedent or in common sense." (Brackets and emphasis supplied)

So, in this case, also involving a widely varying range of wages, to take the weighted average of the wages of the middle 50% of the workers surveyed as prevailing, and to establish as substantially less favorable and wage offer more than 10% below said average, seems to be no less arbitrary and unreasonable.

The construction of Section 593, subdivision 2(d), of the Unemployment Insurance Law [Labor Law, Art. 18] adopted by the Board and approved by the majority here would conceivably permit a full charge bookkeeper who had been making $90 per week to refuse an offer of employment at a salary of $92 or even $93 per week. Many more examples could well be put forward to illustrate the unreasonableness of the rigid and mechanical formula invoked by the Board. Needless to say, this approach to the problem would serve in the long run to defeat the very purpose of the statute, designed, as it were, not to regulate wages (Matter of Sellers[Mays, Inc.], supra) but merely to ameliorate economic insecurity due to involuntary unemployment by tiding over the financial strain incident thereto (Unemployment Insurance Law [Labor Law, Art. 18]. § 501). It appears that the holding in Matter of Wetzig [Corsi] (304 N.Y. 916) tends to support my conclusion here. There, claimant, an experienced plier worker in the jewelry trade, had been earning $1.10 per hour. Some five months after having become unemployed he refused an offer of a job as a plier worker at a wage of 90¢ per hour. The prevailing wage was based upon the union scale, which varied from 90 to $1.10 per hour. It was held that claimants' refusal was without good cause.

In large measure, the Commissioner's formula for determining the prevailing wage and what constitutes substantially less favorable is subject to the same criticism as the Board's formula; however, insofar as the Commissioner's formula uses the range of wages of the middle 50%, which is from $90 to $119.99 per week, it more nearly approached the scheme approved of in Wetzig (supra).

Nonetheless I feel that both formula are too mechanical, and to varying degrees unreasonable, in cases where, as here, the wage range is to wide as to render almost meaningless any attempt to establish what is prevailing. The key to what constitutes substantially less favorable may very well lie with claimant's last salary, or the solution may be a more detailed survey which would establish separate groups for workers based not only on the nature of the work performed but also experience, tenure and quantum of responsibility, among other things. In any event, I do not believe that the offered salary of $90 per week, having been merely $5 less per week than claimant had been earning, could under any circumstances be deemed substantially less favorable.

I would reverse the order appealed from and reinstate the Commissioner's initial determination.

Comments

See A-710-32 for a detailed explanation and discussion.




A-75O-1573
Index No. 1615-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 28, 1962

INTERPRETATION SERVICE - BENEFIT CLAM
VOLUNTARY LEAVING OF EMPLOYMENT
Anticipation of Discharge or Lay-Off

Appeal Board Case Number UCFE-774

VOLUNTARY LEAVING - MISCONDUCT DISMISSAL CHARGES PENDING

Voluntary leaving of Federal employment because misconduct charges are pending is without good cause regardless of whether the charges would ultimately justify dismissal.

Referee's Decision: The initial determinations of the local office disqualifying claimant, a former Federal employee, filing for unemployment compensation under Title XV of the Social Security Act, as amended, from receiving benefits effective June 3, 1961, on the ground that he lost his employment through misconduct in connection with his employment, or in the alternative, disqualifying claimant from receiving benefits effective June 3, 1961, on the ground that he voluntarily left his employment without good cause by provoking his discharge are overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, an attendant at a Veterans' Administration Hospital, having civil service status, resigned from his job on June 2, 1961. The Federal agency reported that claimant's employment was terminated because he resigned while charges were pending to remove him from his position because of improper conduct notwithstanding that the claimant denied the charges.

Claimant has unequivocally denied that he had engaged in the improper conduct with which he was charged. He maintained that the complainant was not produced before him during the investigation by the Federal agency to substantiate the charges. He maintains that he resigned because he was informed by a representative of the agency that the proof was predominantly in support of the charges and that claimant therefore had the alternative of resigning or facing dismissal.

Appeal Board Opinion and Decision: Neither the Division of Employment nor the adjudicators who hear and decide the issues herein under the provisions of the Unemployment Insurance Law, have any jurisdiction to determine the correctness of the facts reported by the Federal agency with respect to the reasons for the termination of claimant's employment. The State agency administers the program providing unemployment compensation for Federal employees in pursuance of the limited authority conferred under Title XV of the Social Security Act and the regulations promulgated by the Secretary of Labor to implement the program.

Section 1507 of Title XV of the Social Security Act requires the Federal Department by which a claimant is last employed to provide the State agency with information which shall include the findings of the employing agency with respect to the reasons for termination of claimant's employment and said Section specifically provides that:

Any such findings which have been made in accordance with such
regulations shall be final and conclusive for the purposes of
Section 1502 (c) and 1503 (c).

Section 609.3 of the regulations of the Secretary of Labor reiterates that the findings of the Federal agency shall be final and conclusive. Accordingly, by force of such statute and regulations we are bound by the Federal agency's finding that claimant "resigned while charges were pending to remove him from his position because or improper conduct *** charge denied by Mr. E.P." Whether or not in our view the charges were established so as to justify a discharge is not material. Similarly, that the proof offered at the hearing before the referee may have been sufficient to establish claimant's freedom from guilt is of no avail. Our jurisdiction is limited to a decision with respect to whether the findings made by the Federal agency establish the commission of an act of misconduct by claimant in connection with his employment as contemplated by the provisions of Section 593.3 of the Unemployment Insurance Law or a voluntary leaving of employment without good cause within the provisions of Section 593.1 of that Law.

The findings of the Federal agency do not establish the commission of any act of misconduct by claimant in connection with his employment. The report merely indicates that a charge was pending against the claimant and that such charge was denied by him. This does not constitute a finding that claimant did actually engage in any improper conduct. Accordingly, the charge that claimant lost his employment because of misconduct in connection therewith has not been sustained. However, the findings of the Federal agency which must be accepted by us, do establish that claimant resigned while charges to remove him from his position were pending. These findings compel the conclusion that claimant voluntarily left his employment and require a decision with regard to whether claimant had good cause for such resignation. We have repeated1y held that the leaving of employment while charges for removal are pending is without good cause. Thus in Appeal Board, UCFE-463-60 under similar circumstances, we said:

The referee concluded that claimant left his employment with good cause. The basis of his conclusion was that claimant's services were to be terminated not because of any specific proven charge but because certain charges were pending. This is erroneous reasoning which we do not accept. Claimant voluntarily resigned from his job to suit his personal purposes, that is to avoid the stigma of a discharge on his employment record. We have held repeatedly that leaving of a job in anticipation of a discharge is a voluntary leaving of employment without good cause. That ruling applies here.

In view of the foregoing we are constrained to conclude that claimant voluntarily left his employment without good cause.

The initial determination disqualifying the claimant from receiving benefits on the ground that he lost his employment as a result of misconduct in connection therewith is overruled. The alternative initial determination disqualifying claimant for having voluntarily left his employment without good cause is sustained. The decision of the referee is reversed. (June 18, 1962)




A-750-1575
Index No. 1250B-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 5, 1962

INTERPRETATION SERVICE - BENEFIT CLAIM
REFUSAL - HOURS
Personal Inconvenience

Appeal Board Case Number 93,499

REFUSAL - HOURS; QUESTION OF SUBSTANTIALLY BELOW PREVAILING

Where a considerable portion of the employees in an occupation work from 8:30 A.M. to 5:00 P.M., a claimant, in the absence of compelling reasons, does not have good cause to refuse employment at those hours even though the predominant hours of employment are from 9:00 A.M. to 5:00 P.M.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective April 10, 1962, 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 Facts Claimant had been employed for four years until April, 1961, as a secretary earning $85 for a 9:00 A.M. to 5:00 P.M., five-day workweek. This job terminated on March 16, 1962. On April 10, 1962, claimant was referred to a secretarial job paying $92 for a five-day workweek, with hours from 8:30 A.M. to 5:00 P.M. Claimant refused the offer of employment because the employer's representative denied her request to change the hours to 9:00 A.M. to 5:00 P.M. Claimant preferred the shorter hours because she wanted to prepare breakfast for her husband each morning, as was claimant's custom for the past five years. The predominant hours of employment for secretaries in the locality is 9:00 A.M. to 5:00 P.M. A considerable portion of the secretaries in the area commence work at 8:30 A.M. The job paid a prevailing wage.

Appeal Board Opinion and Decision: The record does not support the referee's conclusion a claimant had a compelling domestic circumstance which prevented her from working the hours specified by the prospective employer. In view of the fact that the acceptance of the offered employment would have required claimant to leave her home not more than one half hour earlier than her accustomed time, claimant would have suffered no undue hardship, nor would there have been any substantial interference with her domestic duties and responsibility. We hold that claimant's refusal of employment on April 10, 1962, was for reasons of non-compelling personal convenience and do not constitute good cause for job refusal under the Law. The initial determination of the local office is sustained. The decision or the referee is reversed. (September 26, 1962)




A-750-1576
Index No. 780B.3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

September 17, 1962

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

Appeal Board Case Number 92,820

DECEASED CLAIMANT: QUESTION OF CREDIT FOR SATURDAY AND SUNDAY

A person’s status as a claimant terminates upon death and a claimant who dies on Friday cannot receive credit for Saturday and Sunday

Referee’s Decision: The initial determination of the local office denying benefits to the estate of the deceased claimant effective March 3 through March 4, 1962, on the ground that benefits may not accrue after the date of claimant’s demise is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: The deceased claimant was a presser who worked in the garment industry on a five day week basis, Monday through Friday. The needle trade industry, of which claimant was a member, customarily does not work on Saturday and Sunday. Claimant died on Friday, March 2, 1962, at 7 P.M. He had been totally unemployed for five days beginning Monday, February 26 through Friday, March 2, 1962. His estate was paid benefits for two effective days in that week.

Appeal Board Opinion and Decision: The Board has previously ruled that it is unnecessary for a claimant to be available and capable of employment on Saturday and Sunday in an industry that does not customarily require work on such days (Appeal Board, 10,925-44; 43,587-54; 75,444-60). In these cases the claimants were alive during the time for which effective and qualifying days were credited. In Appeal Board, 10,925-44 we said:

"We believe that the requirement to serve three qualifying days was placed in the Law in lieu of exclusions of the usual days of rest from the compensable statutory week."

In the instant case, claimant cannot receive credit for Saturday and Sunday since his status as a claimant terminated upon his death. We note in passing that our decision herein does not alter our previous holding allowing effective days to claimants who are alive during the statutory week, but are unavailable for employment on Saturday or Sunday, where such days are not customary days of work in such claimants’ employment (Appeal Board, 62,584-58)

The initial determination of the local office is sustained. The decision of the referee is reversed. (July 30, 1962)




A-750-1577
Index No. ll95-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 18, 1962

INTERPRETATION SERVICE - BENEFIT CLAIM
MISCONDUCT
Criminal Acts

Appeal Board Case Number 85-225A

ADEQUACY OF CLAIMANT'S SIGNED FELONY STATEMENT

A statement signed by claimant that he wrongfully took monies from the employer is not a statement admitting a felony within the meaning of Section 593.4 if it does not show the amount involved and therefore, does not show that the monies taken reached that sum which renders the act to be a felony.

Referee's Findings of Fact: A hearing was held at which claimant and representatives of the employer and of the Industrial Commissioner appeared. Testimony was taken.

Claimant, a bookkeeper, filed effective September 19, 1960, and refiled effective March 14, 1961. By initial determination effective September 16, he was disqualified for 12 months because of loss of employment as a result of an act constituting a felony in connection with such employment. By alternative determinations, he was disqualified effective September 16 for loss of employment as a result of misconduct in connection therewith, or because of voluntary leaving of employment without good cause.

Claimant worked for an automobile dealer for about five and a half years to September 15. He was discharged by the employer because he had embezzled money from him. According to claimant, the amount embezzled was about $6000; according to the employer, the amount involved was over $3O,OOO. On April 22, 1960, claimant signed a statement prepared by the employer's attorney. This statement, in part, read as follows:

"I admit that I wrongfully took moneys collected in the course of conduct of said business. At this time I do not know the exact amount, however a systematic check of the accounts is to be made to determine the amount that I owe. I agree to make restitution in full when the amount has been accurately determined."

According to claimant, he took the money involved in small sums which did not exceed $200 at one time.

Referee's Opinion and Decision: The disqualification under Section 593.4 of the Unemployment Insurance Law for loss of employment as the result of an act constituting a felony, can be invoked only if a claimant is convicted of a felony "or has signed a statement admitting that he was committed such an act." Claimant was never prosecuted. The basis of the primary determination was that he had signed a statement admitting that he had committed a felony. However, the statement of April 22, 1960, by itself, does not constitute an admission of a felony. There is no indication in that statement of the amount involved or even of the nature of the crime. When supplemented by claimant's testimony at the hearing, the statement would appear to refer to the commission of a felony. However, Section 593.4 provides for the disqualification only, if the statement itself shows the commission of a felony. Since the statement relied upon in this case is deficient in that respect, claimant cannot be disqualified under that section. He was correctly disqualified under Section 593.3 because his actions constituted misconduct in connection with his employment.

The initial determination disqualifying claimant for 12 months is overruled. The initial determination of misconduct is sustained. It is unnecessary to decide the determination of voluntary leaving of employment without good cause.

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: The Board having determined to grant the application of the Industrial Commissioner for a reopening and reconsideration of its aforesaid decision filed September 18, 1961 (Appeal Board 82,927; 82,938). Now, after, a review of the record, including testimony and evidence adduced before the referee and the Board and due deliberation having been had thereon and having found that the referee's findings of fact and opinion are fully supported by the record and that no errors of fact or law appear to have been made, the Board adopts the findings of fact and the opinion of the referee as the findings of fact and the opinion of the Board, except that additionally, we hereby incorporate herein reference as though fully set forth herein our opinion in Appeal Board 77,959-60 1/. The application of the Industrial Commissioner to reopen and reconsider the decision of the Board filed in the Department of Labor on September 18, 1961 (Appeal Bard 82,937,939) is hereby granted, and upon such consideration the aforesaid decision is rescinded. The decision of the referee is affirmed (November 6, 1961)

1/ OPINICN - A.B. 77,959, Cited Above

The referee overruled that part of the initial determination which charged claimant with having wilfully made a false statement to obtain benefits on the theory that such charge was based solely on claimant's failure to indicate on his application form the cause for the loss of his employment. The referee apparently overlooked the revised initia1 determination and therefore, failed to consider the effect of claimant's statements during the interview of June 301 1960.

The record establishes conclusively that claimant deliberately provided the insurance office representatives with false information during that interview, to obtain benefits. He knowingly advised the insurance office that he had round the material on the parking lot, whereas he knew that he had taken the material from a closed and locked area. He therefore wilfully made a false statement to obtain benefits within the purview or Section 594 of the Law.

We do not agree with the referee's conclusion that the total disqualification provided for in Section 593.4 of the Law applies since "it is clear that claimant lost his employment because he was apprehended in the commission of a felony." The disqualification therein provided for applies only if the claimant is duly convicted of the commission of a felony in connection with his employment or has signed a statement admitting that he has committed such act. It is conceded that claimant was not convicted of a felony in connection with his employment and, therefore, such disqualification can be applied only if the statement which was signed by claimant constitutes an admission that he had committed a felony. (See Appeal Board 76,294-60)

The penal law defines three separate degrees of larceny. Only grand larceny in the first and second degrees constitute felonies, whereas petty larceny is a misdemeanor. (Section 1296-1299 of the Penal Law). The statement signed by claimant upon which is based the initial determination disqualifying him from receiving benefits for 12 months does not constitute an admission of larceny in either the first or second degree. The statement contains no admission to the effect that the property wrongfully taken by claimant was valued at more than $10 nor that claimant took such property from the person of another nor that he took the same from any dwelling house, vessel or railway car. That the property which he took may actually have been valued at more than $100 is immaterial in the absence of a conviction or at least indictment, so long as the signed statement fails to contain an admission of such value. Accordingly, we conclude that the disqualification provided for in Section 593.4 of the Law is inapplicable.

It has been conclusively established, however, that claimant committed an act of misconduct in connection with his employment which precipitated his discharge. Irrespective of the actual value of the property taken by him, he wrongfully attempted to remove such property from the employer's premises without authorization for the purpose of converting such property to his own use. he thereby became subject to the disqualification provided for in Section 593.3 of the Law for having lost his employment as a result of an act of misconduct in connection therewith.

In view of the fact that claimant was disqualified from receiving benefits upon the filing of his claim and until he shall have met the conditions of his claim and until he shall have met the conditions specified for termination of such disqualification, he was ineligible to receive the benefits of $123.75 paid to him and, therefore, he was overpaid such benefits. The overpayment is recoverable because admittedly, they were not received by claimant in good faith.

COMMENT

This decision reflects the principle that the signed statement itself must contain admission by the claimant of all the elements which make the crime a "felony." Written or oral information from other sources or implementing oral information from the claimant, given before or after he signed the statement, is insufficient for this purpose.




A-750-1581
Index 1625-1 (Rev)
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 25, 1962

INTERPRETATION SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Other Personal Affairs

Appeal Board Case Number 90,801

VOLUNTAY LEAVING OF EMPLOYMENT - SALE OF CORPORATE STOCK

If a claimant becomes unemployed as the result of the sale of his corporate stock, a disqualification for voluntary leaving of employment is proper unless the claimant had compelling, as differentiated from personal and non-compelling reasons for such sale.

Referee's Decision: The initial determination of the local office holding claimant eligible to receive benefits effective October 30, 1961 without any disqualifying conditions and overruling the employer's objection thereto is sustained.

Appealed By: Employer

Findings of Fact: Claimant was last employed by a corporation which he had caused to be organized in 1951 and of which he was originally the sole stockholder. The corporation issued only three shares of its capital stock and the claimant owned all of such shares. In 1955, at a time when the financial statement of the corporation reflected a net capital deficit of $12,336.28, R.B. became a 50% stockholder of the corporation by purchasing three additional shares of its capital stock for the sum of $1O,OOO. From that time forward, both stockholders were officers of the corporation and they and their respective wives were directors. Claimant and R.B. were employed by the corporation at equal salaries which ultimate1y were fixed at $10,400 to each.

Because differences had arisen between claimant and. R.B. with respect to management policy, claimant elected to withdraw from the corporation. Accordingly, on October 16, 1961, claimant sold his three shares of stock to R.B. for $30,000, and simultaneously therewith he resigned as an officer and director of the corporation and terminated his employment. His wife simultaneously resigned as a corporate director. As part of the transaction of sale, claimant agreed not to engage in a similar business within a specified area for a stated period of time.

Following the loss of claimant's employment, he filed the claim in issue. The local office initially determined that the circumstances under which claimant had lost his employment did not disqualify him from receiving benefits. The employer protested, contending that claimant should have been disqualified for having voluntarily left his employment without good cause.

Appeal Board Opinion and Decision: The referee overruled the employer's objection and sustained the initial determination in reliance upon our decision in Appeal Board, 68,663, wherein the factual situation was analogous to the instant case. On this appeal, the employer urges the Board to review its reasoning in Appeal Board, 68,663 and to arrive at a contrary conclusion, It contends that the principle enunciated in Appeal Board, 68,663 does violence to the purpose and intent of the Law and particularly to Section 593.1 thereof.

From time to time, the Board has considered whether a disqualification for voluntary leaving of employment without good cause applies where the unemployment stems from the sale of stock in the corporation by which the claimant was employed. In earlier decisions, the Board held that one who becomes unemployed because he disposes of his interest in a corporation which he controlled or in which he held a major interest, must be deemed to have voluntarily left his employment without good cause (Appeal Board, 53,399; 54,153; 57,135; 60,496; 60,666). Later, in Appeal Board, 61,586, it was established that the sale of stock which produced the claimant's unemployment was necessary to prevent a dissolution of the corporation and a threatened substantial loss. We there held that the sale of the stock was for compelling reasons and consequently the unemployment of the claimant was not due to a voluntary leaving of employment without good cause (See also Appeal Board, 61,437 and 61,969).

Following the Board's decision in the last mentioned case, the Division of Employment adopted a policy to the effect that the conduct of the personal financial affairs of an applicant for benefits, such as the sale of capital stock, should be disregarded in determining benefit rights and accordingly, no findings should be made that the loss of employment resulting from a sale of corporate stock is due to a voluntary leaving of employment without good cause, since the claimant presumably sold the stock for "good and sufficient reasons from his point of view."

In pursuance of such policy the local offices initially determined that claimants who had become unemployed as a consequence of the disposal of stock interest in the corporations by which they were employed were not subject to disqualifying conditions. This policy was reviewed by the Board in Appeal Board, 68,663 and we applied the Division's policy. We accordingly, sustained the initial determination that claimant was not subject to any disqualifying conditions.

We have now reviewed the issue in the light of the contentions and arguments advanced by the parties herein and, we find that there is sufficient validity and merit to the contentions of the employer to warrant an abandonment of the principle enunciated in Appeal Board, 68,663. It is uncontradicted that the unemployment of the claimant is voluntary since he had agreed to a transaction which he knew must result in the loss of his employment. If we were to hold that under all circumstances, such a voluntary act is based on good cause, we would be ignoring the plain mandate of the statute which provides for financial assistance to workers who are involuntarily unemployed through no fault of their own (Section 501) Therefore we cannot subscribe to the view that the reasons which motivated the claimant's sale of stock are "outside the scope of local office investigations relating to rights to unemployment insurance benefits." In our view, such an investigation must be made to ascertain whether the reasons which caused the sale of stock, which in turn resulted in claimant's unemployment, were compelling or merely personal. The fact that some administrative difficulties may be encountered by the necessity for making such investigations, does not justify the payment of benefits so long as the statute mandates otherwise, (See e.g. Matter of the American Legion, Inc., 10 A.D. 400, reversing Appeal Board 58,955 and Matter of Cassaretakis, Appeal Board 4014-40 aff'd. 319 Board U.S. 306, sub, nom. Standard Dredging Corp. vs. Murphy, aff'g. 289 N.Y. 119).

Accordingly, we conclude that in each instance where a claimant becomes unemployed due to the sale of corporate stock, the particular facts must be examined to determine whether "good cause" to precipitate unemployment by such sale, existed.

Applying this rule to the facts in the case on appeal, the conclusion is inescapable that there were no compelling reasons within the provisions of the Unemployment Insurance Law for claimant to have terminated his employment by the sale of stock. He entered into an agreement for the disposition of his stock interest in the corporation freely and without compulsion or duress and for reasons personal to himself. We therefore conclude that claimant voluntarily left his employment without good cause and thereby became subject to the disqualification provided for in Section 593.1 of the Law.

The initial determination of the local office holding claimant eligible to receive benefits effective October 30, 1961 without and disqualifying conditions is overruled and the employer's objection thereto is sustained. Claimant is disqualified from receiving benefits effective October 30, 1961, on the ground that he voluntarily left his employment without good cause. The decision of the referee is reversed. (October 15, 1962)

COMMENTS

It is now necessary to evaluate the reason for the sale of corporate stock to determine whether such reason is "compelling or merely personal." In the instant case, claimant elected to withdraw form the corporation and sell his stock because of "differences" between himself and the other officer. Under such circumstances, the Board held that disposition of the stock was made "freely and without compulsion or duress and for reasons personal to himself; consequently, a voluntary leaving disqualification was proper.

As against this, compelling reasons existed in an earlier case (A.B. 61,586) when it was established that the sale of stock was necessary "to prevent a dissolution of a corporation and threatened substantial loss." Similarly, a compelling reason for the sale of stock existed where claimant was forced out of the corporate structure through no fault of his own - Release A-750-1456. There are other instances which would indicate "compelling" reasons such as health, substantial change in contract of hire beyond claimant's control, etc. The usual "good cause" interpretations should be applied in determining whether the sale of corporate stock is for compelling or personal reasons.




A-75O-1582
Index No. 1670-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

October 31, 1962

INTERPRETATION SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Following Spouse or Marriage

Appeal Board Case Number 94,862

PROVOKED DISCHARGE; SIMULTANEOUS EMPLOYMENT OF HUSAND WIFE

Termination of employment, because claimant's impending marriage to a co-worker conflicts with a company rule forbidding simultaneous employment of husband and wife, does not invoke the disqualification which applies to quits due to marriage when the claimant is willing to continue to work since such separation is then involuntary.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective May 9, 1962, on the ground that she voluntarily left her employment due to marriage is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a claims adjuster, was employed by an insurance company for over three years. Claimant's fiancé was employed in the same office. The company's rules forbid both a husband and wife to be employed by the company. Claimant informed her supervisor of her impending marriage, and it was agreed that claimant would terminate her employment, May 8, 1962, since claimant was to be married on May 12, 1962. Claimant was willing to continue to work had she been permitted to do so.

Appeal Board Opinion and Decision: In view of the proof which has been adduced, we are not in accord with the referee's conclusion that the disqualification provided for by Section 593.1(b) is applicable herein.

Section 593.l(b)(1) provides as follows:

A disqualification as provided in this subdivision shall also apply after a claimant's voluntary separation from his last employment prior to the filing of his claim, if such voluntary separation was due to claimant's (1) marriage.

Claimant did not leave her employment of her own volition. The rules of the employer made necessary the termination of her employment and the effective date was fixed by agreement between the employer and the claimant. The statute provides a disqualification after a voluntary separation from her employment. In the instant case, the separation was involuntary and resulted from the employer's rules.

We have heretofore held that a leaving of employment under such circumstances is involuntary and that the provisions of Section 593.1(a) do not apply thereto (A.B. #13,188-60). We held therein that a loss of employment occasioned by an employer's rule of the same tenor as that under consideration herein was involuntary. However the facts of that case occurred prior to the effective date of Section 593.1(b). In considering the application of the latter section to these same circumstances, we conclude that there is no need to change our reasoning thereon. We conclude that claimant's loss of employment was involuntary and therefore Section 593.1(b) is inapplicable thereto.

The initial determination of the local office disqualifying claimant from receiving benefits on the ground that she voluntarily left her employment due to marriage is overruled. The decision of the referee is reversed. (October 22, 1962)




A-750-1586
Index No. 1130-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

December 4, 1962

INTERPRETATION SERVICE - BENEFIT CLAIM
MISCONDUCT
Morality of Employee

Appeal Board Case Number 95,799

MISCONDUCT, QUESTION OF BOOKMAKING AWAY FROM PREMISES

A misconduct disqualification applies to a brokerage clerk who is discharged for accepting bookmaking bets in the building in which employed since, in view of the employer's business, such action was detrimental to the employer's interest because the public impression of his employees' high integrity is of the essence of their employment.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective June 27, 1962, on the ground that he lost his employment through misconduct in connection with his employment is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a brokerage clerk, was employed for six years until June 27, 1962. He was discharged following his arrest for bookmaking. He was convicted of accepting a bet in the lobby of the building which the employer's offices are located. No decision on claimant's appeal from his conviction has been rendered as yet.

Appeal Board Opinion and Decision: We do not agree with the referee's decision that is has not been shown that the offense was in connection with claimant's employment. In accepting a bet in the building where the employer's offices are located, claimant was engaging in conduct that was detrimental to the employer's interest and likely to cause the employer damage. It is clear that in view of the employer's business, the public impression that its employees are of the highest integrity is of the essence of their employment. Accordingly, claimant lost his employment through his misconduct in connection therewith.

The initial determination of the local office is sustained. The decision of the referee is reversed. (November 21, 1962).




A-750-1587
Index No. 905-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

January 11, 1963

INTERPRETATION SERVICE - BENEFIT CLAIM
DETERMINATION OF BENEFITS
Experience Rating Charges

Appeal Board Case Number 96,O87

EXPERIENCE RATING CHARGES, QUESTION OF

If the Local Office fails to act on information received from a base period employer that work is available for the claimant, the employer's account is not charged with benefits paid to the claimant during the period when the employer had work for him.

Referee's Decision: The determinations of the Industrial Commissioner assessing experience rating charges against the employer's account with respect to benefit payments made to a former employee for the statutory weeks ending April 29 and May 6, 1962 are sustained.

Appealed By: Employer

Findings of Fact: C.S., a former employee of the employer herein, had filed a claim for benefits on March 26, 1962. C.S. had been employed up to March 20, 1962 by the employer for 50 weeks during his base period. Subsequent to the termination of such employment, C.S. became employed by another employer for whom he worked for one week through March 26, 1962. No claim for benefits was filed by C.S. until after the termination of the employment in which claimant engaged subsequent to his employment by the employer herein. Since it appeared from the information furnished by C.S. upon the filing of his claim that the employer herein was one of his base-year employers, the local office required the employer herein to furnish written information with respect to the period of the employment of C.S., his total earnings, his last day of work and specifically to state whether the employer knew of any reason why the said C.S. may not be eligible for benefits. The employer complied with the request and on March 29, 1962, mailed to the local office its reply. The employer in response to the inquiry with respect to its knowledge of any reasons for ineligibility, indicated that claimant had quit voluntarily without notice or cause and that work was now available for him. The local office personnel concluded that no disqualification would be imposed by reason of the circumstances under which the employment of C.S. by the employer herein was terminated for the reason that such employment was not the last employment of C.S. prior to the filing. However, the local office personnel inadvertently failed to give significance to the employer's statement that work was available for the claimant and, therefore, contrary to prescribed procedure, the local office personnel failed to refer claimant to the employer for reemployment. Notwithstanding the information received from the employer, the local office personnel initially determined that C.S. was eligible for benefits without disqualifying conditions and on the basis of such initial determination, benefits were paid. For the weeks ending April 29 and May 6, 1962, benefits aggregating $41 were paid C.S. and experience rating charges were made against the employer's account for such payments.

The employer had work available for C.S. continuously from at least March 20, 1962 to at least May 23, 1962, when it made a timely protest of experience rating charges which had been assessed against it.

Appeal Board Opinion and Decision: The employer contended that the benefits paid to C.S. should not have been charged against the employer's account for the reason that the initial determination ruling claimant eligible for benefits was issued inadvertently by the local office personnel who failed to follow prescribed procedure and failed to refer claimant to the employer for reemployment in pursuance of the information which the employer had furnished to the local office. Although it was conceded on behalf of the Commissioner's representative that there appeared to be merit in the contention advanced by the employer, the Commissioner was, nevertheless, constrained to overrule the employer's protest because of the principle enunciated by us in Appeal Board 59,640 and Appeal Board, 44,169. On this appeal by the employer, written statements were submitted on behalf of the Industrial Commissioner urging us to reconsider the principles set forth in the cited cases and upon such reconsideration to rule that the experience rating charges should be removed from the employer's account and the benefits paid to C.S. should be charged against the general account. It is pointed out by the Commissioner that in view of the omission of the local office representative in having inadvertently failed to refer C.S. for reemployment, fairness to the employer requires that it should not be penalized by the experience rating charge against its account.

In Appeal Board 44,169 and Appeal Board, 59,640, we reasoned that the provisions of Section 581.1(e) required that the base-year employer's account be charged with the benefits paid to its former employee, notwithstanding the failure of the local office representatives to give attention to the base-year employer's report that it was prepared to rehire the claimant.

We have now reviewed the statutory provisions and conclude that Section 577 of the Law authorizes the charging of the benefits paid to C.S. to the general account rather than to the account of the employer. Since the employer was actually prepared to rehire C.S., and since the offer of rehire was not conveyed to the claimant only because of the inadvertence of the local office representatives, it would be inequitable and unjust to penalize the employer, by charging its account with the benefits paid to C.S. without having first tested his eligibility by exposing him to the job opportunity made available, for him by the employer. The employer should not suffer by reason of error on the part of the local office personnel (Compare with Matter or Rae Horowitz, 271 App. Div. 765, affirming Appeal Board, 12,485).

In view of the foregoing, we now renounce the rule set forth in Appeal Board 44,169 and 56,640 and we hold that the charges made against the account of the employer should be canceled.

The determination imposing experience rating charges against he employer with respect to benefits paid to C.S. for the statutory weeks ending April 29 and May 6, 1962 are overruled and such experience rating charges are canceled. The decision of the referee is reversed. (December 28, 1962)




A-750-1589
Index No. 755A.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE

January 21, 1963

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Restriction – Work

Appellate Division Decision

Matter of Louis Reiger

Appeal Board No. UCFE-522-61A

PART-TIME TAXI DRIVER DESIRING ONLY PRIMARY OCCUPATION

When a claimant, because of a desire to seek work in his "primary" occupation (public relations), is unwilling to perform obtainable full time employment in another occupation (taxi driver) in which he has extensive experience, though usually and in recent years limited to weekends and days off from other work, he is not available for work within the meaning of Section 591.2 since that provision requires a claimant to be ready, willing and able to work, not only in his usual employment, but also in any other for which he is reasonably fitted by training and experience.

APPELLATE DIVISION DECISION

Appeal is taken (by the employer) from a decision of the Unemployment Insurance Appeal Board which, upon an application to reopen, rescinded a Referee’s decision holding claimant ineligible for benefits, by reason of his refusal of full time employment as a taxicab driver (see Labor Law, §591, subd. 2), and reinstated the initial determination allowing benefits.

We accept the board’s finding that claimant has been engaged in public relations work, although the term is not over-specific and the duties of claimant’s past positions were not shown in any great detail. For over 25 years he has ad a taxicab driver’s license, renewed annually upon his application, and, except for time spent in military service, has operated cabs in New York City for the appellant employer and others during all of that period, usually on weekends and on days off from other employments but for five days per week during one period of over three years preceding 1953. So far as appears, his last employment, other than as a cab driver, terminated in 1960, after which he continued his part-time work for the cab company, the appellant here, which has offered him regular, full-time work; but this he has refused, on the ground that he would not then have sufficient time to pursue his efforts to obtain employment in the field of public relations.

The initial determination of claimant’s entitlement to benefits was overruled by a Referee on the express authority of this court’s decision in Matter of Tucker (Lubin) (8 A.D. 2d 859). The case was reopened by the Unemployment Insurance Appeal Board, however, and the Referee’s decision rescinded and the initial determination sustained after Tucker was reversed by the Court of Appeals (8 N.Y. 2d 1145). It seems clear, however, that our decision in Tucker was reversed because this court was found to have erred in overruling a purely factual determination which the Court of Appeals held was supported by substantial evidence. The statute provides: "No benefits shall be payable in 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." (Labor Law, §591, subd. 2; emphasis supplied.) In Tucker, the Court of Appeals held "that there was adequate support in the record for the board’s finding that claimant was not reasonably fitted by training and experience to take a position as typist". (8 N.Y. 2d 1145, 1147.) In this case there was no finding that claimant was not "reasonably fitted by training and experience" for work in his "other" employment; and in view of his continuous experience in the latter work and his annual licensure, over a period of many years, by the New York City bureau having jurisdiction, it could not well be found or, indeed, sensibly argued that he was not so fitted. The decision of the board in this case proceeds upon its finding of "primary occupation", a ground for which the Tucker case seems to us to afford no authority and for which no support can be found in the clear and unambiguous language of the statute. The board’s conclusion that what claimant "has done in the past 25 years establishes that his primary occupation is as a public relations man" seems to us irrelevant and, more important, an improper basis for the decision and one unauthorized by the statutory provisions as to any other employment for which a claimant is fitted. The test of "primary occupation", which the board thus adopts, would render largely ineffective the alternative provision respecting "any other" appropriate employment, and this despite the clear fact that the Legislature has placed the latter in complete parity with "usual employment". While the board’s term, "primary occupation", might conceivably be equated with "usual employment" for some purposes, certainly it may not be when the effect is to exclude all employments but the "primary" one. (See Matter of Delgado [Corsi], 278 App. Div. 237.) The result seems harsh only if the purpose of the statute be lost sight of. "[T]he full utilization of all skills is not the effective test to be applied under the statute, but rather the availability of work for which the claimant is fitted by training and experience". (Matter of Greaser [Corsi], 279 App. Div. 702, 703).

The decision should be reversed and the Referee’s decision reinstated, without costs. (November 30, 1962)

COMMENTS

  1. This decision gives a new direction in the application of the "fitted by training and experience" clause of the statutory provision on availability. Previously, a claimant was held unavailable on these grounds in similar circumstances only if the other occupation in which he is now unwilling to work had characteristics such as forming his "principal source of income during base period" (A-750-1191) or representing "substantial recent (full time) employment" (A-750-1357). It now appears that any employment for which the claimant is reasonably fitted by training and experience must be considered; that it is immaterial whether the recently performed work in such occupation was full time; and that the claimant’s vocational goal and the comparative skills of the occupation are not controlling. In determining whether a claimant is reasonably fitted by training and experience, a factual question is presented, the answer to which depends upon the specific circumstances of the case.


  2. Availability is a flexible concept. Therefore, caution is indicated against an indiscriminate application of the principle which the decision reflects.


    1. First of all, if a claimant is reasonably fitted by training and experience for more than one occupation and is willing accept employment in any of such occupation, he should not be held unavailable because of lack of efforts in one occupation provided his efforts to obtain employment in the other occupation are reasonably diligent and the employment he is actively seeking is reasonably obtainable.


    2. Obviously, a claimant need not be available for jobs which, if specifically offered, he would have "good cause" to refuse. Therefore, if there are particular conditions which would represent such "good cause," (health reasons, compelling personal circumstances, etc.) these are factors to be considered in evaluating the availability of a claimant who is unwilling to work in a given occupation although it is one of those for which he may be reasonably fitted by training and experience.



A-750-l592
Index No. 1580A-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 4, 1963

INTERPRETATION SERVICE - BENEFIT CLAIM
MISREPRESENTATION
Penalty Period

Appeal Board Case Number 98,038

FORFEIT DAYS IMPOSED, QUESTION OF

The forfeiture penalty for a wilful false statement is only 20 effective days, although benefits were paid, if the facts do not warrant a disqualification so that no overpayment resulted, from the false statement.

Referee's Decision: The initial determination of the local office holding that claimant wilfully made false statements to obtain benefits by reason of which a forfeiture of 24 effective days was imposed as a penalty in reduction of claimant's future benefit rights is affirmed.

Appealed By: Claimant

Findings of Fact: Claimant, a porter, was discharged for inadvertently failing to report for work on a Saturday. When he refiled his claim for benefits, he attributed his loss of employment to no business and no work. Claimant knew the reason for his discharge and knew that it was not because of lack of work.

Appeal Board Opinion and Decision: The insurance office was entitled to know the true reason for claimant's termination of employment. The information furnished by claimant was false and was known by him to be false. He wilfully made a false statement to obtain benefits when he told the insurance office that the reason for his discharge was no business and no work. However, since no overpayment resulted from this wilful false statement, the forfeiture should be reduced to 20 effective days.

The initial determination of the local office holding that claimant wilfully made a false statement to obtain benefits, by reason of which a forfeiture of 24 effective days was imposed as a penalty in reduction of his future benefit rights is modified to reduce the forfeiture to 20 effective days and as so modified is sustained.

The decision of the referee is modified accordingly, and as so modified, is affirmed. (February 14, 1963)

COMMENTS

Although the principle which the case reflects is not new, the decision is here reported for reemphasis and to implement the Special Bulletin on "Standards for the Imposition of Forfeit Days" (A-710-2l).




A-750-1594
Serial No. 1180-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

March 27, 1963

INTERPRETATION SERVICE - BENEFIT CLAIM
MISCONDUCT
Other Offenses
Union Activities

Appeal Board No. 87,617, et al

MISCONDUCT DISQUALIFICATION - MISCONDUCT IN CONNECTION WITH STRIKE

Participation by a claimant in an industrial controversy, regardless of its merits (see A750-1928), is insufficient grounds for disqualification for misconduct when the claimant is discharged because of his actions in connection therewith, provided such actions do not overstep the bounds of peaceful picketing and are not actions evincing a wilful and wanton disregard of the employer's interests or a deliberate violation and disregard of standards of behavior which an employer has a right to expect of his employees.

Appealed By: The employer and the Industrial Commissioner appeal from the decision of the referee filed December 5, 1961, insofar as it overruled the initial determinations of the local office disqualifying claimants from receiving benefits effective November 3, 1960 on the ground that they lost their employment through misconduct in connection with their employment.

Referee's Findings of Fact: The 24 claimants involved herein were employed in various capacities as production workers by a plastic and chemical manufacturing corporation. They were members of the International Association of Machinists, AFL-CIO and Local Lodge 2112 thereof. The contract between the bargaining unit and the employer during the period in question was in effect from August 1, 1960 to August 2, 1961. Section 23 of the union contract provided in part as follows:

(h) There shall be no lock-out by the Company and no strike walk-outs,
suspension retarding or stoppage of work by employees during the
term of this agreement.

(i) Subject to the terms of this agreement, the Company reserves all
of its fundamental rights as an employer to hire; promote; transfer;
discipline; to maintain discipline and efficiency of employees, and
to discharge for just cause.

The contract also provided a procedure for the submission of all grievances with the terminal step being impartial arbitration binding on all parties.

On October 26, 1960 the employer advised the bargaining unit that its supervisory force was being reduced and that three salaried supervisory employees were being returned to their former jobs and restored to the bargaining unit with seniority to date back to their last respective dates of hire. At the time a number of union members were on layoff status. Opposition to the company's action was expressed by officials of the local union on the ground that it was a breach of the union contract. A request was made of the employer that it shut down the plant to permit a meeting of the union membership, which request was denied. The subject of the dispute was discussed at a regular meeting of the local on October 26. It was decided to seek advice and guidance from the international union. At a special meeting of the local held on Saturday, October 29, the district representative of the international union was present and addressed the membership. The district representative stated that the union contract was silent concerning the matter in dispute and he expressed the view that the employer was in violation of the contract in returning the supervisory employees to the bargaining unit and that, therefore, the union contract was no longer in effect. The matter of any further action was left in the hands of the membership of the local. No official strike vote was taken.

Following this meeting, the union local addressed a letter to the employer protesting the company action as an unfair labor practice and stating that the signed labor agreement contained no provisions to do as the company suggested. Letters were also sent to the three ex-supervisors stating that their displacement on the seniority list of hourly rated workers who had become union members was contrary to the rules of the local.

The employer urged that the dispute be taken up by following the grievance procedure as set forth in the contract but officials of the local expressed refusal to follow that course. On October 30 the employer offered to waive the first two steps of the grievance procedure.

Commencing with the shift starting at 12:01 a.m. on Monday, October 31, the production employees numbering about 625 went out on strike. The strike ended at 12:01 a.m. on November 3. On the first day of the strike, a few employees reported for work at the phenol plant where their absence might have resulted in damage to equipment. On the second day, the phenol department was taken over by salaried personnel and the strike became complete.

On October 31, prior to 8 a.m., about 250 to 300 production workers appeared at the plant entrance and gathered on the street opposite the main gate. There was considerable discussion among the workers. Groups were formed and the men moved about from one location to another. A tent was erected and coffee was served. No incidents occurred.

On November 1, picketing of the employer's plant began. In the afternoon a group of 50 to 101 strikers marched in pairs and in a continuous circle in front of the main gate. Some cars or trucks were prevented from entering the plant or were delayed for short periods. Police officers were called to the scene.

Police officials determined which cars were entitled to enter the plant and some were turned away. On occasions, police officers broke through the closely formed lines of pickets, in order to open an entrance through the main gate for automobiles entitled to enter the plant. Other groups of pickets gathered at the company loading dock and about the railroad tracks leading into the plant. There was considerable shouting and pushing and shoving at the times the police officers were opening passageways into the plant. On occasions, some of the claimants were observed to be standing in front of motor vehicles about to enter the plant, or between the vehicle and the plant entrance. There was no organized or individual defiance of the police authority. No incidents involving personal or group violence resulting in personal injuries or damage to property occurred. There was no shouting of insults, vituperation or use of abusive language observed.

The mass picketing continued on November 2 to about 5 p.m. Through the intervention of officials of the international union, a meeting of the executive board of the local union was held on that day. On the previous day the General Vice-President of the International Union had telegraphed the president of the local urging all union members to return to work and to adjust the issues in accordance with the grievance procedure. It was decided following the meeting of November 2, to discontinue the strike on that day and settle the differences through the grievance procedure. As a result, the strike ended at midnight on that day.

Prior to the cessation of the strike, company officials met and decided to discharge 26 employees, including the claimants herein, because of their violation of the no strike clause in the bargaining agreement and for "other misconduct." These persons were selected on the basis of the employer's observations of their acts and conduct during the course of the strike. Some of the alleged offenses taken into consideration were: apparent leadership in the strike; shoving and pushing; shouting directions to strikers and pickets; taking groups of strikers from place to place; persuading employees not to go to work; participating in surges and special massing of pickets to prevent entry into the plant; talking with (and in one case swinging at) drivers of motor vehicles at or near the picket lines; standing in front of railroad cars and in front of particular vehicles; carrying a sign; official connection with the local lodge on the part of those engaged in such acts.

Thereafter, the local lodge filed a grievance against the employer charging (1) that the employer violated the union contract by returning salaried employees to the bargaining unit, demanding also that employees on layoff with appropriate seniority be recalled to fill the jobs occupied by these salaried workers, and (2) that the employees were discharged in violation of the union agreement. The arbitration board decided by majority vote that the employer did not violate the contract when it returned salaried employees to the bargaining unit. With respect to claimants, the discharges were upheld in four instances, but were set aside and converted to suspensions of various lengths of time in the remainder.

Initial determinations were issued by the local office suspending the benefit rights of claimants for seven consecutive weeks effective October 31, 1960 on the ground that they lost their employment because of an industrial controversy in the establishment in which they were employed. Claimants did not contest such determinations. By further initial determinations, claimants were disqualified from receiving benefits effective November 3, 1960 on the ground that they lost their employment through misconduct in connection with their employment.

Appeal Board Opinion and Decision: The sole issue on this appeal is whether or not claimants' loss of employment was due to misconduct in connection with their employment, as contemplated by Section 594 of the Law. The first phase of this issue which we must consider is whether or not the participation by claimants in a strike which was in violation of a no strike clause in the collective bargaining agreement, of itself, constituted misconduct in connection with employment within the meaning of the Unemployment Insurance Law, as contended by the employer and the Industrial Commissioner. The second phase is whether or not claimants committed individual acts of misconduct during the pendency of the strike, as distinct from their participation in the strike, and will be discussed later.

The initial determinations suspending the benefit rights of claimants effective October 31, 1960 on the ground that they lost their employment because of an industrial controversy in the establishment in which they were employed, were not contested by claimants and have not been challenged by any of the parties hereto. It is readily apparent that the disqualifications for misconduct, insofar as they are based on participation in this so-called "illegal" strike, arise out of the same facts as led to the strike suspensions. The question of whether or not both the strike suspension and the misconduct disqualification can be simultaneously applied has never been decided in our courts. Notwithstanding our decision in Appeal Board, 42,816-54, a look backward at the history of strike legislation in New York State as applied to unemployment insurance, should cast some light in that direction.

The first attempt to pass an unemployment insurance bill in this State was in 1933. The proposed 1933 act provided for no stoppage of benefits in the case of loss of employment due to a labor dispute. It did contain a provision for an extended waiting period in the case of loss of employment through misconduct, but specifically provided that "leaving or losing employment due to a trade dispute" shall not constitute misconduct. (S. 2385, Int. No. 208; A. 2878, Int. No. 533). The proposed act of 1934 provided for an extended waiting period for loss of employment due to strikes but specifically limited it to strikes "not caused by a breach of agreement on the part of the employer" or by other acts abridging the rights of employees (S.2162, Int. No.630; A. 2714, Int. No.826). The original Unemployment Insurance Act (Chapter 468 of the Laws of 1935) provided extended waiting periods of ten weeks for loss of employment either through misconduct or because of a strike, but significantly, it cast them in the alternative, as follows:

§ 504. Waiting period. * * *

2. An employee shall not be entitled to benefits except for
unemployment which continues subsequent to a waiting period
of ten weeks:

  1. if he has lost his employment through misconduct in connection with his employment; or
  2. if he has lost his employment because of a strike, lockout or other industrial controversy in the establishment in which he was employed; or

    (Underscoring supplied)

In 1941, the concept of an extended waiting period was dropped and in its place was substituted a suspension of benefit rights for seven consecutive weeks. The then Section 504 (a) provided the identical suspension for loss of employment through misconduct or because of a strike. The key language "lost his employment because of a strike, lockout or other industrial controversy in the establishment in which he was employed" and the seven weeks suspension period have remained in the statute unchanged to this day. The penalty for loss of employment through misconduct, however, was again changed in 1958 into a disqualification of 42 consecutive days. At the same time the misconduct provision was removed from Section 592 labeled "Suspension of accumulation of benefit rights" and placed in Section 593 labeled "Disqualification for benefits." The present disqualification for misconduct which can be broken only by subsequent employment or earnings in stated amounts was enacted in 1960. (Chapter 783 of the Laws of 1960).

Thus, it becomes apparent that throughout the history of this legislation the Legislature has regarded and treated the misconduct and strike provisions as separate disqualifications. While it has not varied the period of withholding of benefits in strike cases since 1941, the penalty in misconduct cases has been changed several times. The intention to apply only the suspension of benefits provision to all cases involving industrial controversies seems clear.

As stated by Mr. Justice Foster in Matter of Burger, et al, 277 App. Div. 234, affirming Appeal Board, 19,311-49; affirmed 303 N.Y 654:

The main purpose of Section 592 is clear. The State is to stand aside for a time, pending the settlement of differences between employers and employees, to avoid the imputation that a strike may be financed through unemployment insurance benefits ...

This statement has not only received general acceptance but it is in keeping with the argument of the Industrial Commissioner presented at page 20 of his brief in that case as follows:

It is not the duty of the Industrial Commissioner to inquire into or determine the merits of any strike or other industrial controversy. With that in mind it is clear that 592.1 is not penal in nature, but was enacted to furnish what the Legislature deemed a reasonable period during which the State stands aside pending the settlement of the differences between the employer and the employees. This condition is necessary in order to avoid any criticism which might be directed toward the State for financing strikes through unemployment insurance benefits. The provision also avoids the necessity of examining the merits of an industrial controversy.

The Courts have since consistently followed the line that the merits of the industrial controversy are immaterial to a decision on the issue of whether or not an industrial controversy existed. No distinction has ever been made between strikes which violate a law or a contract provision and those which do not. In Matter of Crealey, 280 App. Div. 845, reversing Appeal Board, 27,071-51, the Court held that an industrial controversy existed within the statute even though the employer had obtained an order in the Supreme Court enjoining picketing on the ground that no labor dispute, as defined by Section 876 a. of the Civil Practice Act, existed at its establishment. In Matter of Sprague, 4 App. Div. 2d 911, reversing Appeal Board, 54,608-56, 54,609-56, 54,610-56; an industrial controversy was found to exist even though there were no differences between claimants and their respective employers, where the claimants became unemployed due to a work stoppage at an air base, caused by the establishment of a picket line by a union for the purpose of exerting pressure on the Air Force to reinstate a contract for the employment of union labor. So also in Matter of Klein et al, 15 App. Div. 2d 201, reversing Appeal Board, 67,939-59, affirmed 12 N.Y. 2d 678 where the Court found an industrial controversy to have existed when the employer discharged 18 window trimmers who refused to comply with conditions of continued employment imposed by the employer, notwithstanding that no picketing or other manifestations of an industrial controversy took place prior to the discharges.

That this approach to the question of industrial controversy is consonant with authorities in other jurisdictions appears from the decision in Fash v. Gordon, III 210 75 N.E. 294 where a union raised the contention that no labor dispute existed on the ground that a labor dispute ceases to be after a decision concerning its merits has been determined by a board or government agency and the employer refused to abide by such determinations. There the Court said in its opinion at page 298:

While no Illinois decision has been called to our attention, the almost unanimous holdings of jurisdictions where the question has arisen have been that the reasonableness or Unreasonableness of the demands, or the merits of the dispute, have no place in the determination of the question whether a labor dispute exists. In re. Steelman, 219 N.C. 306, 13 S.E. 2d 554; Johnson v. Pratt, 200 S.C. 315,20 S.E. 2d. 865; Board of Review v. Mid Continent Petroleum Company, 193 Okl. 36, 141 P. 2d. 69; W.R. Grace and Company v. California Employment Commission, 24 Cal. 2d. 720, 151 P 2d. 215; Baker v. Powhoton Mining Company, 146 Ohio St. 600, 67 N.E. 714 and many other decisions...

Irrespective of the rights or obligations of the parties under the written contract, an industrial controversy existed in the instant cases. The right of labor to organize or to strike is a fundamental one. The strike with which we are here dealing, represented concerted action on the part of the whole union membership in an effort to air their grievance and a determination by them to refrain from working until the difference was settled. That the use of the strike weapon may be in derogation of a written agreement does not abridge that right, since there may be times that the very existence of the union is threatened (See Mastro Plastics v NLRB, 350 U.S. 278). It is generally recognized in federal decisions that disputes relating to violations of no-strike clauses are arbitrable (Signal Stat. Corp. v. Local 475,235 F. 2d 298 (C.A. 2d Cir.), Yale & Towne Mfg. Co. v. Local 1717, F. 2d (G.A. 3d Cir.), Matter of Scott, 8 N.Y.2d 414). In fact, the arbitrators here were divided in their opinion on the issue of the construction of the written contract.

If the claimants herein lost their employment due to a strike or industrial controversy, then the disqualification prescribed by the Legislature was satisfied by the imposition of the strike suspension period. The precise issue here presented was considered recently by the Circuit Court in Michigan in Finnean and Papiersy v. The Appeal Board et al and Consumers Power Co (Circuit Court Ingham County March 31, 1958) and Harrington v. Appeal Board, et al and Sutherland Paper Co. (Circuit Court, Ingham County, November 10, 1958),and it was held that the disqualification under the labor dispute provision applies rather than the misconduct provision. In the Finnegan and Papiersy case, supra, the Court said:

It is reasonable to conclude that the Legislature must have intended that subsection (1)(b) [the labor dispute provision] should provide the disqualifications relating to labor disputes in order to foreclose the possibility of indirectly financing persons who are actively engaged in work stoppage during the time they are so engaged and are consequently unemployed. Otherwise, many of the provisions of the Act could be used interchangeably to inflict penalties of long duration in cases where unemployment arises out of industrial controversies. (Also see Canter v. The Appeal Board et al and the Budd Co., Circuit Court, Wayne County, December 18, 1958; The Labor Market and Employment Security, U.S. Department of Labor; August, 1959, pp. 55-58)

To go further and impose the misconduct disqualifications for mere participation in the strike would require an inquiry into the merits. We are now convinced that this is not the proper forum to inquire into or to determine the merits of such a controversy or to decide questions of legality on the part 0£ either of the opposing sides. If there has been a breach of contract between the parties, adequate remedies are provided by law for the aggrieved party. We conclude, therefore, that the disqualifications for misconduct cannot be sustained on the basis of the mere participation by the claimants in the industrial controversy, regardless of its merits or legality. Insofar as our own decision in Appeal Board, 42,816-54 is in conflict with this view, the rule enunciated in said decision is rescinded. We proceed now to the remaining question of whether or not the claimants by individual acts, independent of their mere participation in the strike, committed misconduct so as to be subject to the disqualification provisions of Section 593.3 of the Law. We recognize that acts or conduct of claimants committed during the course of the strike or on a picket line may constitute misconduct and subject them to disqualifications on that ground. We so held in Appeal Board 80,096-61 where we found to be misconduct actions characterized as conduct which "overstepped the bounds of legal and peaceful picketing"; conduct which "evinced a wilful and wanton disregard of the employer's interests and was in deliberate violation and disregard of standards of behavior which an employer has a right to expect of its employees"; actions which "were sufficiently identified with violence or threat of violence to warrant a finding that their subsequent loss of employment was occasioned by acts of misconduct" and "aggressive acts of a deliberate nature resulting in prejudice to the employer's interests."

The employer selected the claimants for discharge on the basis of its observations of their conduct during the course of the strike. Protracted hearings were held before the Board at which each individual case was separately treated. Voluminous testimony was taken and numerous exhibits including photographs were received in evidence. We have carefully examined the entire record in the case and we reach the conclusion that the alleged acts of misconduct charged were not of such a nature as to warrant a finding of misconduct in connection with employment under the Law.

We do not deem it necessary to separately discuss each case. The employer's charges in the main fall into two categories. First, there are the activities of certain claimants on October 31 in allegedly instigating, developing and maintaining the strike, persuading others not to work and assuming leadership of the strikers, all in violation of the no-strike clause of the labor agreement. Secondly, there are those based on the alleged wrongful conduct on November 1 and 2 of the same and other claimants who were described as "overly active" in connection with the mass picketing which took place on those days.

The activities of the claimants in the first category were described by the employer's representatives generally as "overly active" and as being more than the roles of on-lookers or bystanders. Some of the acts occurred prior to the strike. The charges that some of the claimants persuaded others not to report for work are not supported by any direct evidence. As far as the record shows, claimants who were union officers and who held discussions with groups of strikers may well have been approached in their official capacity for information as to the progress of the strike. The exercise of leadership by itself, absent overt acts of a wilful or menacing nature and overstepping the bounds of propriety is not misconduct. We hold with respect to the charges in the first category that the proof falls short of showing any overt acts which might be branded as misconduct within the meaning of the Unemployment Insurance Law.

The second category of charges is more closely allied with the field of violence and aggressiveness. However, the evidence before us does not reflect acts of a sufficiently serious nature to warrant a holding of misconduct. The shouting, pushing, shoving and participation in the surges during the mass picketing was not shown to be of such a violent or menacing nature as to brand these acts as deliberate and wantonly in disregard of the employer's interests. The charges stem largely out of incidents arising of the mass picketing. About 1OO strikers were involved in the mass picketing at a time. The evidence does not show that any of the individual claimants were the leaders or the motivating force in these activities. It would appear that claimants who were charged in this respect in most instances were merely part of a mass action and by pure chance were found in particular locations and in contact with the police officers at the moment of a breakthrough. There is absent here, any substantial proof of a design on the part of claimants to create an atmosphere of fear and intimidation with respect to their co-employees, or of intentional aggressive acts of violence or belligerence warranting the disqualifications.

We conclude, therefore, that claimants are not subject to disqualifications for loss of employment through misconduct in connection with their employment within the meaning of the Unemployment Insurance Law.

The initial determinations of the local office suspending the benefit rights of claimants for seven consecutive weeks effective October 3, 1960 on the ground that they lost their employment because of an industrial controversy in the establishment in which they were employed remain in effect, but such suspension terminated upon the settlement of the industrial controversy on November 2, 1960.

the initial determinations of the local office disqualifying claimants from receiving benefits effective November 3, 1960 on the ground that they lost their employment through misconduct in connection with their employment, are overruled. The decision of the referee is affirmed. (March 11, 1963)




A-750-1596
Index No. 1460A-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

June 16, 1963

INTERPRETATION SERVICE - BENEFIT CLAIM
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without Work
Vacation Period

Appeal Board Case Number 100,658

VERBAL DESIGNATION OF VACATION PERIOD

Advance oral notification of plant shutdown for vacations, even though not in writing, to which claimants or their representatives have acquiesced, satisfies the requirement of Section 591.3(b) so that claimant was ineligible because of "paid vacation."

Referee's Decision: The initial determination of the local office holding that claimant was ineligible to receive benefits effective July 2, 1962, through July 8, 1962, on the ground that such period was a paid vacation period for which no benefits are to be paid is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a knit goods worker, was substantially employed both the week before and the week after the week ending July 8, 1962. Although the employer did not post any written notice with respect to vacations, about two weeks before June 29,1962, it notified the Union shop chairlady that the shop would be closed for vacation purposes during the week ending July 8, 1962, and claimant was so advised by the shop chairlady about a week prior to June 29.

The establishment was closed during the week in issue and on June 29, 1962, claimant received a vacation allowance of $83 for this week.

Appeal Board Opinion and Decision: The sole question which is here presented is whether the failure of the employer to give written notice of the vacation period causes claimant to be eligible for benefits notwithstanding that he admitted the receipt and advance verbal notification and of the vacation payment. Under the circumstances of this case, our statement in Appeal Board, 68,256 is applicable as follows:

"We feel it would do violence to the purpose and intent of the law as well as to the public policy of the State to construe the vacation period provisions of the Law in such manner as to justify the referee's decision.

It is common knowledge that the vast majority of employing establishments throughout the State, especially the smaller ones, do not designate vacation periods in writing. Such arrangements are frequently made orally between supervisors and workers. Typical of these situations is the usual vacation arrangements for the vast majority of clerical and executive employees. Rarely is there a written formal designation of the annual vacation period. If the referee's construction of Section 591.3 of the Law were accepted such employees would be deemed to suffer "unemployment for which benefits are payable." It is obvious that the Legislature never contemplated such a result.

"We believe that the Legislature did not intend to create an escape hatch to allow payment of unemployment insurance benefits simultaneously with vacation pay in situations as in this case we deem it sufficient that the vacation period herein was so designated by the employer and the claimant in advance and we further hold that the omission of the writing does not render the section ineffectual."

Our decisions in appeal Board 95,055 and 95,378, upon which the referee relied, are inapplicable since in those cases the employers did not give any prior notice of vacation period, whereas here it is conceded that the employer notified the shop chairlady in advance and the latter advised claimant that the week ending July 8 was to be a vacation week.

We, therefore, hold that claimant is ineligible for benefits for the week ending July 8, 1962, on the ground that such week constituted a paid vacation period.

The initial determination of the local office is sustained. The decision of the referee is reversed. (June 4, 1963)

COMMENTS

In Release No. A-750-1505, under similar circumstances, it was stated that this principle "will as a rule only apply to cases of staggered vacation where the vacation time is scheduled on an individual basis" and that it "will rarely, if ever, apply to cases of plant shutdown for vacation purposes, affecting all workers alike." Those comments are now obsolete and should be so marked.

As an explanation of the phrase "to which claimants or their representatives have acquiesced" it should be noted that failure to protest an employer's advance oral designation of a vacation period constitutes "acquiescence."




A-750-1597
Index No. 1625-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 8, 1963

INTERPRETATION SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Personal Reasons

Appeal Board Case 101,790

UNEMPLOYMENT STEMMING FROM SALE OF CORPORATE "BUSINESS"

Where claimant, a principal stockholder, participated in the decision to dispose of the corporate "business" (a hotel), not because of a compelling need but because of a profitable economic advantage, such action which resulted in claimant's unemployment is tantamount to voluntary leaving without good cause.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective January 3, 1963, on the ground that she voluntarily left her employment without good cause is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant was employed as an executive housekeeper at a residence hotel, which was in the vicinity of a large university. Claimant owned 25 per cent of the stock in the corporation which owned and operated this hotel. Claimant's sister and brother owned the balance of the stock. Claimant became unemployed when the corporation sold its only asset, namely, the hotel at which she was employed.

Claimant and her fellow stockholders sold the hotel because, in their view, there was too much aggravation for the compensation which they derived from the hotel and they were desirous of disposing of the property before the rents might be further reduced on the basis of a proceeding pending before the Rent Commissioner. They, therefore, elected to avail themselves of the opportunity of selling the property at a profit to the university, notwithstanding that claimant knew that such sale would produce her unemployment because the university had its own staff to operate the hotel.

Appeal Board Opinion and Decision: Recently, in Appeal Board, 90,801, we had occasion to determine whether a loss of employment which results from a claimant's sale of the stock of the corporation in which he had a controlling interest and by which he was employed, constitutes a voluntary leaving of employment within the purview of the Unemployment Insurance Law. We concluded that, under such circumstances, there is a voluntary leaving of employment and that "in each instance where a claimant becomes unemployed due to the sale of corporate stock, the particular facts must be examined to determine whether 'good cause' to precipitate unemployment by such sale existed."

In the instant case, claimant's unemployment stemmed from the sale of the corporate "business" rather than from a sale of the stock in the corporate employer. Nevertheless, claimant, as a principal stockholder, participated in the decision of the employer to dispose of the property and, without objection, protest or dissent, joined with the remaining principals of the corporation in the disposition of the corporate property which provided claimant with employment. Under these circumstances, we conclude that, for the purpose of determining claimant's rights under the Unemployment Insurance Law, she is in substantially the same position as though her unemployment had stemmed from the sale of her corporate stock. Accordingly, our reasoning in Appeal Board, 90,801 applies and our decision therein is incorporated herein by reference.

Having thus concluded that claimant voluntarily left her employment within the intent of Section 593.1 of the Law, it is necessary to determine whether such voluntary leaving was based on good cause. There is no proof to establish that there was any compelling need for the sale of the hotel. It was sold, solely, because in the judgment of the principals of the corporation, it was to their economic advantage to accept the offer made by the university which would enable them to make a profitable sale. This is a purely personal reason which was not of such compelling nature as to provide good cause for the termination of employment which was a necessary sequence to the sale. Accordingly, we hold that claimant voluntarily left her employment without god cause.

The initial determination of the local office is sustained. The decision of the referee is reversed. (June 19, 1963)

COMMENTS

The principle that unemployment stemming from the sale of claimant's corporate stock for personal and non-compelling reasons results in disqualification for voluntary leaving of employment is reported in Release A-750-1581.

This decision extends that principle to situations where claimant participates in a decision to sell the corporate "business."




A-750-1598
Index No. 1310-14
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 10, 1963

INTERPRETATION SERVICE - BENEFIT CLAIM
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Unemployment due to - Question of

Appeal Board Numbers 98,903 and 102,051A

INDUSTRIAL CONTROVERSY, QUESTION OF; EMPLOYER'S INABILITY TO FULFILL EMPLOYMENT CONTRACT

A work stoppage upon the advice of claimants' union because of the employer's failure to fulfill employment contract obligations (health and welfare fund payments, holiday pay, wages, etc.) is not an industrial controversy where there is no dispute concerning the terms or conditions of employment but simply an inability on the part of the employer to pay because of lack of funds.

A.B. No. 98,903

Appellant: The claimant appeals from the decision of the referee filed November 19, 1962, sustaining the initial determination of the local office suspending the accumulation of benefit rights by claimant during a period of seven consecutive weeks effective September 20, 1962, on the ground that she lost her employment because of an industrial controversy in the establishment in which she was employed.

Findings of Fact: Claimant, a draper, was employed through September 19, 1962. On September 20, 1962, the finishers and the other piece workers reported to their union and complained that the employer had refused to pay them holiday pay for Labor Day, 1962, to which they were entitled pursuant to the collective bargaining agreement. On the advice of the union, the pieceworkers and finishers stopped working on September 20, and did not return to work until two weeks later when they were advised by their union that the matter had been settled and that they would be paid for the holiday. No work was available for claimant and other timeworkers, due to the fact that the pieceworkers and finishers were not working. Accordingly, claimant was laid off.

There was no picketing of the employer's establishment. The employer was not prevented from hiring other employees to replace those who had refused to work. The employer paid its employees for the Labor Day Holiday, on their ultimate return to work. The employer had paid the claimant and other timeworkers for the holiday but was unable to pay the pieceworkers and the finisher's holiday pay at the time they were entitled to be paid because she was then without funds. She testified at the hearing before the Board that because of other troubles with the union, business had been bad and she was without funds to pay the money although she recognized that under the contract, she was obligated to pay the pieceworkers and the finishers for the holiday. There was no interpretive difference between the employer and the union regarding the workers' rights to holiday pay under the contract. The employer had been having a running dispute with the union on other matters relating to price schedules which were not related to her obligation to pay holiday pay to the workers involved.

Appeal Board Opinion and Decision: The evidence now before the Board establishes that the work stoppage in the employer's establishment on September 20, 1962, was occasioned by the employer's inability to pay to the piece workers and finishers the wages due to them as holiday pay and not due to an interpretive difference regarding the contract. The employer's failure to make the holiday payment was not occasioned by any industrial controversy or labor dispute but rather was due to the employer's lack of funds. The fact that the union counselled the workers to remain away from work until they received payment due to them did not operate to make the matter an industrial controversy. The employer's dispute with the union regarding price schedules had nothing to do with the work stoppage. Under the circumstances of this case, claimant's unemployment beginning September 20, 1962 was not due to an industrial controversy and consequently, the statutory suspension is inapplicable.

In Appeal Board, 99,626, wherein we affirmed the referee's decision without opinion, it was stated:

The record establishes that claimant's failure to work on and after July 12 (claimants H., I., and A.) was due to their stoppage because of the employer's failure to pay them wages due as holiday pay. This failure of the employer to make the holiday payment was not because of any dispute as to its obligation to make the payment but was simply due to lack of funds. Under such circumstances, the claimants' failure to work is not to be construed as due to an industrial controversy.

In Appeal Board, 91,106, we said:

Claimants' refusal to work because of the refusal of the employer to post a cash bond does not constitute an industrial controversy within the meaning of Section 592 of the Unemployment Insurance Law. The employer had evidenced its financial instability by issuing wage checks which were dishonored by the bank. Claimants' demand for the posting of a bond was not unreasonable because there was a likelihood that they would not be paid for their services. The employer's failure to secure permission from the Department of Labor to pay wages by check was a violation of the Law. The claimants' herein were further justified in refusing to continue in this employment because of this violation.

In Appeal Board, 98,774, wherein we affirmed, without opinion, the referee's decision it was stated:

Refusal to work because of an employer' failure to pay back wages, even when such refusal is based upon the union's advice and counsel, does not constitute an industrial controversy within the purview of the Unemployment Insurance Law.

We therefore conclude that claimant did not lose her employment because of an industrial controversy in the establishment in which she was employed.

The initial determination of the local office is overruled. The decision of the referee is reversed. (June 12, 1963)

A.B. 102,051A

Appellant: This is an application by the Industrial Commissioner, pursuant to the provisions of Section 534 of the Unemployment Insurance Law, to reopen and reconsider the decisions of the Board filed in the Department of Labor on April 2, 1963, affirming (1) the decision of the referee filed December 27, 1962 (appeal Board 98,817; 98,818; 98,819), and (2) the decision of the referee filed January 16, 1963 (Appeal Board 99,373), overruling the initial determination of the local office suspending the accumulation of benefit rights by claimants during a period of seven consecutive weeks effective September 19,1962 on the ground that they lost their employment because of an industrial controversy in the establishment in which they were employed.

Findings of Fact: Claimants were employed by a firm engaged in the manufacture and installation of railings and ironwork. They are members of a union in contractual relations with the employer. The contract provides, among other things, for the employer to make contributions to a health and welfare fund for the benefit of the members of claimants' union. The employer had failed, over a period of time to make such contributions and was delinquent in the payment of substantial sums of money to the health and welfare fund.

A Federal Court adjudged the employer to be bankrupt effective September 14, 1962. On September 18 claimants and other employees, upon instructions from their union representative, refused to work because of the employer's failure to pay the contributions due to the health and welfare fund and because the employer was insolvent. There was no dispute as to any of the terms and conditions of claimants' employment, nor were there any negotiations between the employer and claimants or the union relative thereto.

Appeal Board Opinion and Decision: The Industrial Commissioner contends that because claimants' refusal to work was based upon the advice and counsel of their union, and because there was some picketing, the cessation of work constituted a concerted walkout and created an industrial controversy within the meaning of the Law. We find that the substantial fringe benefits due from the bankrupt employer under the contract with claimants' union constitute an important part of claimants' wages. We have held that the refusal to work because of an employer's failure to pay back wages, even when such refusal is based upon the advice and counsel of claimants' union, does not constitute an industrial controversy within the purview of the Unemployment Insurance Law (Appeal Board, 98,714).

Similarly, a work stoppage resulting from the failure of the employer to pay wages due as holiday pay, not because of any dispute as to the obligation, but only because of the employer's inability to pay, is not an industrial controversy (Appeal Board, 99,626).

Even were we to accept the contentions of the Industrial Commissioner, the situation herein is not unlike that which existed in (Appeal Board 91,106), where we held that the refusal of claimants to work because the financially unstable employer refused to post a cash bond to insure payment of wages, after wage checks had been dishonored by its bank, did not constitute an industrial controversy.

Considering that there was no dispute between the employer and claimants or their union, that there were no negotiations between the parties relative to the terms and conditions of claimants' employment, that the employer was insolvent and adjudged bankrupt by a Federal Court four days earlier, and that the employer was delinquent in the payment of substantial fringe benefits to the health and welfare fund managed by claimants' union, we hold, under these circumstances, that there was no industrial controversy within the meaning of the Unemployment Insurance Law.

The application of the Industrial Commissioner to reopen and reconsider the decisions of the Board filed in the Department of Labor on April 2, 1963 (Appeal Board 98,811; 98,819; 99,373), is granted and said decisions are hereby rescinded. The initial determinations of the local office are overruled. The decisions of the referee are affirmed. (June 11, 1963)




A-750-l599
Index 1735 D-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

July 12, 1963

INTERPRETATION SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Violation of Agreement

Appeal Board Case Number 91,334

EMPLOYER'S FAILURE TO FULFILL PROMISE OF TRANSFER

An employer's failure to fulfill a promise, made subsequent to hire, to change employment conditions (transfer) is not good cause for voluntary leaving since no circumstances developed which would have justified refusal of the employment in the first instance.

Referee's Decision: The initial, determination of the local office disqualifying claimant from receiving benefits effective January 12, 1962 on the ground that he voluntarily left his employment without good cause is overruled.

Appealed by: Industrial Commissioner

Findings of Fact: Claimant was employed as a dishwasher in a department store, for about six months to January 11, 1962. During his employment, claimant had requested transfer to the shipping room where he could earn a higher wage. On two occasions, claimant had been told that he would receive the transfer if a vacancy occurred. Claimant was dissatisfied with the conditions of his employment because he was required on occasions to work in the downstairs floor. Early in January, a vacancy occurred in the shipping room and another employee was given the job. Claimant then resigned after having given a week's notice of leaving.

Appeal Board Opinion and Decision: The employer's failure to carry out its promise to transfer claimant to the next vacancy which arose did not provide claimant with good cause for his summary leaving of his employment. The conditions of claimant's employment had not changed during the course of his employment. No other circumstances developed which would have justified his refusal of the employment in the first instance. Admittedly, claimant's leaving was prompted as much by his dissatisfaction with working conditions as by his disappointment in failing to secure the transfer. It must be held therefore, that claimant voluntarily left his employment without good cause. (Matter of Sellers, 13 App. Div. 204, reversing Appeal Board 70,414).

The initial determinations of the local office are sustained. The decision of the referee, insofar as appealed from, is reversed. (July 16, 1962).

COMMENTS

The principle here stated is applicable in those cases where a promise by the employer, after claimant's acceptance of employment, to fulfill claimant's request for a transfer, wage increase or other change in employment conditions is not kept. Under these circumstances App. Div. decision, Matter of Sellers (Release A-740-1550) is applicable since nothing developed during the course of the employment to justify a refusal in the first instance.

However, it should be noted that, if a hardship or compelling reason is involved in the claimant's request for a change in the employment conditions, "good cause" may exist as in any other voluntary leaving issue.