A-750-1700

Index No. 1605B-4
1640C-4
1675.2

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

August 20, 1968

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Desire for Different Work

COURT OF APPEALS DECISION

Matter of Gregory Lungarelli, 22 NY 2d 394

VETERAN’S FAILURE TO EXERCISE RE-EMPLOYMENT RIGHTS – NO DISQUALIFICATION

A veteran, although he has reinstatement rights under the Universal Military Training and Service Act, does not voluntarily leave his employment when he fails to apply for his former job and, therefore, cannot be disqualified for that reason.

Claimant, Gregory Lungarelli, on March 6, 1964, when he was then but seventeen years of age, left his position as a $64 per week messenger with a stock brokerage firm in New York City and entered the United States Army. Assigned to Viet Nam, he served as a combat machine gunner in the airborne infantry. He was honorably discharged from the Army three years later, on March 10, 1967.

Following expiration of his terminal leave, claimant filed for unemployment compensation benefits pursuant to the Ex-Servicemen’s Compensation Act of 1958 (5 U.S.C. §8521). This statute provides that military service constitutes "Federal Service" and that the pay and allowances received by persons in the military constitute "Federal Wages." Its effect is to bring discharged servicemen within the ambit of Federal legislation making other classes of former federal employees eligible for state unemployment compensation (see 5 U.S.C. §8501 et seq.), "in the same amount, on the same terms, and subject to the same conditions" as if their federal service and wages had been employment and wages under state law (5 U.S.C. §8502).

Claimant’s application for benefits was denied, on the ground that, as claimant had not been fitted by education or training, either before or during his military service, for any particular civilian occupation or trade and as claimant was unwilling to return to work for his former employer (now at $70 per week rather than the former $64 per week), which position had, pursuant to another Federal statue (50 U.S.C., Appendix, §459) to be made available to him, he must, for purposes of determining his eligibility for benefits under section 593 of our Labor Law, be deemed to have "voluntarily separated" himself without good cause from his last employment (see Labor Law, §593, subd. 1). This determination has been upheld through the various administrative appellate proceedings and in the court below.

This utilization of the latter Federal statue, 50 U.S.C. Appendix §459, in the strained fashion that it has been interpreted here, as the basis for a finding that claimant voluntarily left his last employment, seems entirely unwarranted, but even if the statute had been utilized, as would at least have been more reasonable, as the basis for a finding that he had unreasonably refused available employment and therefore was not entitled to benefits (see Labor Law, §593, subd. 2), this would still seem a wholly impermissible construction of the statute, enabling to be used to defeat another, separate benefit Congress sought to confer upon newly separated servicemen, namely that they be allowed "to adjust to civilian life and civilian jobs ***by providing unemployment insurance comparable to the benefits available to other unemployed workers***" [Senate Report No. 2375 (1958), reprinted in 1958 U.S. Code Congressional and Administrative News, 4318,4320).

50 U.SC., App. §459 represents a comprehensive effort by Congress not merely to guarantee returning veterans that their old jobs will, if they are still qualified to fill them, be available to them on their return from service but also, where possible, to assure them re-employment at the seniority and income level they would have enjoyed had they not left their employment to enter military service (50 U.S.C., Appendix §459, subsec. (c)(1); Tilton v. Missouri Pac R. Co., 376 U.S. 169). In this statute it is expressly declared to be the "sense of Congress" that a person who is restored to a position in accordance with its terms "should be so restored in such manner as to give him such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment" (50 U.S.C., Appendix, §459, subsec. (c)(2). "The principle underlying this legislation is that he who is ‘called to the colors [is] not to be penalized on his return by reason of his absence from his civilian job’" (Tilton v. Missouri Pac. R. Co., 376 U.S. 169 supra, at 170,171, quoting from Fishgold v. Sullivan Drydock & Repair Corp. 328 U.S. 275, at 284). The present statute goes back to the Selective Training and Service Act of 1940 (54 Stat. 885) and constitutes an attempt to make generous provision for ex-servicemen whose job careers have been interrupted by military service. However, as is obvious, such opportunity to obtain re-employment at his old job, assuming the veteran was employed when he entered the service, is of differential value to different veterans, depending upon the particular employment they had when they entered the armed forces. Most especially is this apparent with those many returning servicemen, such as the claimant here, who entered military service at a very young age from civilian employment which was most fit for a teenager rather than a mature adult, at low pay and with no foreseeable prospects for advancement with such former employer. These veterans return to civilian life, having devoted to military service those years when a young man would normally have been either completing his education or at least establishing himself in a trade or other occupation, without the training or skills necessary for ready absorption into the civilian labor market. This is not to say, however, that they may not be fitted into civilian life at a level more appropriate to their age and abilities than their former employment. They must, if at all possible, be given the opportunity to readjust to civilian life and find civilian employment commensurate with whatever training, experience and added maturity they may have gained through their military service and this seems to have been precisely what Congress had in mind when in 1958 it enacted the Ex-Servicemen’s Unemployment Compensation Act. It seems inconceivable, then, that we should hold that Congress, when it enacted this later legislation, intended that the earlier legislation, designed merely to protect the Veteran’s right to re-employment in his former occupation, operate as a bar to the veteran’s receiving unemployment compensation under the 1958 act in the event that he did not wish to return to his old job. This simply turns what was intended to be a shield to protect the veteran into a sword to deprive him of rights sought to be guaranteed him under another beneficent Federal statute. It seems manifest, then, that where, as here, the only showing the Industrial Commissioner can make to justify the denial of benefits to a veteran claiming unemployment compensation benefits pursuant to the Ex-Servicemen’s Unemployment Compensation Act is the veteran’s refusal of his old job and no other, such determination must be reversed. This is all that has been shown here and on this ground alone we would reverse and remand the matter to the Commissioner.

In addition, however, even granting for the sake of argument the propriety of utilizing a veteran’s re-employment rights under 50 U.S.C., Appendix, §459 as the basis for a finding that the veteran unreasonably refused available employment and was therefore ineligible under state law for unemployment compensation, on the record before us it seems clear that respondent’s denial of claimant’s application for unemployment benefits was at the very least premature, if not erroneous. This determination was, as indicated earlier, based on the claimant’s admitted lack of specialized civilian training or skills as well as upon the availability of his former job, for which, it was concluded, he was "fitted" by such lack of training or skills. This conclusion was founded, however, at least as far as the record reveals, solely upon the twenty year old claimant’s own very candid self-appraisal of the value of his military training to civilian life and civilian occupations and no attempt was made to secure a professional evaluation as to how claimant’s added maturity and experience might perhaps be utilized to find him a better position that which he had left to enter military service. Nor was any effort made, as far as the record reveals, even to contact the Veterans’ Administration job counseling services, to which claimant has gone for counseling and testing in connection with his pursuit of a better job than that which he had left to enter the Army – this in the face of claimant’s disclosure to the hearing referee that he had contacted the Veterans Administration but had no as yet heard from them. This amounts, very simply, to a complete failure on the Industrial Commissioner’s part to make an adequate showing that claimant "refuse(d) to accept an offer of employment for which he (was) reasonably fitted by training and experience." (Labor Law, §593, subd. 2, pertaining to "refusal of employment" a standard, which also obtains with respect to "voluntary separations" under subdivision 1 of §593, Emphasis supplied.) It was based solely on claimant’s lack of training and made no provision or allowance for any beneficial effect that claimant’s military experience might have had on his ability to obtain or hold civilian employment and no attempt was even made to consider or investigate this factor (which, on a very mundane, practical level must have had some value, if for nothing more than the fact that claimant by reason of his past military service would now not be subject to the draft, assuring any new employer that claimant would not be drafted out of any training or apprenticeship program in which such employer might wish to enroll him). The exclusion of this factor from consideration of whether claimant unreasonably refused available employment is sufficient, in our view, to warrant reversal of the order below and remand of this matter of the Industrial Commissioner for further consideration.

For the reasons given above the order appealed from should be reversed and the matter remanded to the Industrial Commissioner for further hearing to consider claimant’s eligibility for unemployment compensation benefits. (July 5, 1968)

COMMMENTS

  1. This decision outlaws a principle of long standing. However, although a veteran under the circumstances here described is not disqualified for voluntary leaving employment, a disqualification is not automatically ruled out if he refuses the employer’s offer of reinstatement or refuses to accept a referral to his former job.

If a disqualification for refusal of employment is then considered, it must be supported by all the usual elements as in any other refusal. Moreover, as stated by the Court, veterans must "be given an opportunity to readjust to civilian life and find civilian employment commensurate with whatever training, experience, and added maturity they may have gained through their military service."

It would further appear that no disqualification for a job refusal upon discharge from the armed forces should be issued unless full consideration was given to claimant’s counseling and testing in connection with his pursuit of a better job than that which he had left to enter the army." Services are provided for this purpose in all office of the Employment Service. Insurance Offices should give full consideration to the evaluations made by the Employment Service and, if a hearing is requested from a refusal disqualification in such instances, include in the case folder documentation of the services rendered and evaluations made by the Employment Service.

 



A-750-1702

Index No. 905-6

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

October 24, 1968

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMNATION OF BENEFITS
Experience Rating Charges

Appeal Board Case Number 147,105

EXPERIENCE RATING CHARGES; QUIT TO ATTEND VOCATIONAL TRAINING

If a voluntary quit to attend vocational training is held to be with good cause because Division of Employment representatives who approved the training failed to advise the claimant of the possible consequences of such leaving, the account of the employer involved in the quit is not charged with the resulting payment of benefits.

Referee’s Decision: The initial determination of the local office holding claimant eligible to receive benefits, effective February 5, 1968, without disqualifying conditions is overruled. The employer’s objections to the payment of benefits to claimant on the ground that he voluntarily left his employment without good cause, are sustained.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, classified as a kitchen helper, filed an original claim for benefits effective February 5, 1968 and thereafter received eight benefit payments through April 7, 1968. He is age 29 and had two years of college education in the foreign country from which he immigrated to the United States. He has worked in this country in hotels for several years in unskilled jobs such as kitchen helper and dishwasher. He was laid off from each of his last two hotel jobs and his prospects for employment in such work were poor.

Since 1964, claimant has applied on various occasions to the employment service for training for various skilled or technical jobs. He was tested and found qualified for a number of courses over a period of several years and although certified therefore, each of the courses was cancelled. In the interim, claimant sought and obtained work of whatever kind was open to him. In the fall of 1967, claimant again applied to the employment service for a training course, this time in the occupation of offset printer. He was recommended for the course on November 29, 1967 and his application was approved on January 30,1968. He started the course on February 5, 1968 and completed it at the end of six weeks.

At no time was claimant advised or warned by a representative of the Division of Employment that leaving a job to take such a training course could affect his benefit rights. The employment service did not inquire whether claimant was employed at any time during the periods in which his applications for the various training courses were under consideration. Claimant had been working since August 1967 as a bill of lading clerk for a trucking firm, at $2 per hour for a 40-hour workweek. He left this job on January 31, 1968, to attend the training course approved by the Division of Employment.

Appeal Board Opinion and Decision: Claimant left his last job to attend a training course approved by the Industrial Commissioner without ever having been informed by the Division of Employment that leaving his employment for such purpose would, in and of itself, affect his claim for unemployment insurance benefits. He believed that in accordance with the provisions of Section 599 of the Law he would receive benefit payments while engaged in this training course. Under these circumstances, we conclude that claimant left his employment with good cause and that pursuant to the provisions of Section 599, he was available for employment while taking the approved training course (See Appeal Board 140,502).

However, the employer has a valid objection to being charged with the benefits paid to claimant. Had the Division of Employment ascertained whether claimant was employed at the time his application for training as an offset printer was under consideration, and had claimant been advised and counseled as to the possible consequences of leaving employment to take a raining course, claimant may have been subject to disqualification for a voluntary leaving of employment without good cause and not entitled to any benefits. In such event, the benefits paid to him would not be chargeable to this employer’s account. The Industrial Commissioner agrees that in such a situation the benefits paid to claimant should not be charged to the account of the employer. The Law provides that the general account within the unemployment insurance fund shall be debited with "all monies paid to claimants which should not have been charged or are not chargeable to any employer’s account" (Section 577.1(b)(4)). According, the benefits paid to claimant herein should be charged to the general account and not to the account of the employer herein (see Appeal Board 96087).

The initial determination of the local office is sustained. The benefits paid to the claimant are not chargeable to the employer’s account. The decision of the referee is reversed. (October 14, 1968)

COMMENTS

  1. Division representatives failed to inform the claimant of the possible consequences of his quit. This advice is required by current procedures, which may be found in Field Operations Manual II 6056; II 22620D; III 6227G,1,c and III 27342D. The importance of these procedures is emphasized by the here-reported case.
  2. The principle that an employer’s account may not be charged with benefits properly paid where claimant’s eligibility can be traced to improper action by local office staff was established by A.B. 96,087, cited in the instant case and reported at A-750-1587. There the local office failed to act on information from a base period employer that he had work available for the claimant. That reasoning is now extended to cases where payment of benefits results from failure to advise claimants properly when approving vocational training for them.

 



A-750-1703

Index No. 845-4

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

November 6, 1968

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS & REPORTING
Predating

Appeal Board Case Number 146,887

FAILURE TO FILE; VISIT TO EMPLOYMENT SERVICE INSTEAD

A claim is predated to day of registration at the Employment Service office if the claimant was unaware of his rights and that office failed to question and inform him regarding the filing for unemployment benefits.

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective February 17 through February 25, 1968, on the ground that he failed to comply with registration requirements, and denying his request to predate his claim for benefits to February 17, 1968, is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a bookkeeper, was employed by a trucking company from September 1, 1966 to February 16, 1968, at which time he was laid off.

Claimant is 68 years old, a leg amputee and a fairly recent immigrant who became a citizen in April 1968. Prior thereto claimant was under the impression that he could not file a claim for unemployment insurance benefits because he was an alien and for other reasons none of which would have prevented him from receiving benefits. Therefore claimant concluded on February 19, 1968, that the only thing he was eligible to do was file for employment at the employment office which he did. He was instructed to return to the employment office on February 21, at which time he was given several job referrals. However, the employment office did not inquire if claimant was aware of his right to file a claim for benefits. Claimant filed a claim for benefits effective February 26, 1968. He received an information booklet and realized for the first time that he should have filed his claim in the preceding week. Claimant then requested that his claim for benefits be predated to February 17, 1968 but the local office denied the request.

Appeal Board Opinion and Decision: The credible evidence establishes that claimant was unaware of his right to file a claim for benefits during the period in issue. It was incumbent on the employment office, when claimant did not present insurance identification papers, to inquire into the matter and advise him of his right to file a claim for benefits; and also to specifically advise claimant that an application for employment does not constitute a claim for benefits which can only be filed in the local office in accordance with the procedures for serving benefit applicants outlined in the Field Operations Bureau Manual (Vol. II, par. 16035). In the Matter of Horowitz, 271 App. Div. 765 aff’g Appeal Board 12,485, the claimant was also unaware of the provisions of the Law, and when she advised the local office of her earnings in 1944, she was not informed of her right to file a claim for benefits based thereon. The Court recognized the Board’s right to predate claimant’s claim for benefits, to the commencement of her unemployment; and stated "we see no valid reason for interference with this administrative interpretation and application of a purely social statute."

The facts herein afford a reasonable basis to excuse claimant’s inadvertent failure to comply with registration requirements from February 17 through February 25, 1968. However, his claim for benefits should be predated to Monday, February 19,1968, and not February 17.

The initial determination of the local office is overruled. The decision of the referee is reversed. (October 16, 1968)

COMMENTS

FOB Procedures (II 16035) require the Employment Service to question and inform applicants without U.I. identification regarding the filing of a claim for benefits. This decision holds that failure to comply with this requirement results in the predating of a benefit claim filed thereafter by a claimant who was unaware of his rights.

Therefore, if a claimant in connection with a request for predating contends that he had registered with the Employment Service but was not advised regarding the filing of a benefit claim, and that he was not aware of his rights to unemployment benefits or of the methods for asserting them, his contentions should be verified.

If it is found that his contentions are correct, the claim should be predated accordingly. If they are not correct, evidence leading to that conclusion should be documented. The later may include instances where the claimant had past experience with the filing of benefit claims.

 



A-750-1704

Index No. 1215B-1

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

November 8, 1968

INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Attitude and conduct

APPELLATE DIVISION DECISION

Matter of Henry Zimmerman

STATEMENTS CALCULATED TO DISCOURAGE HIRE

If a claimant makes statements calculated to discourage an offer of employment, which would otherwise have been made, such action constitutes refusal of employment.

DECISION

Appeal is taken by claimant from a decision of the Unemployment Insurance Appeal Board which (1) disqualified claimant from benefits on the ground that he refused employment without good cause (Labor Law, Section 593, subd. 2) and (2)imposed a forfeiture of 20 effective days in reduction of claimant’s future benefit rights, upon finding that claimant willfully made a false statement to obtain benefits (Labor Law, Section 594).

The evidence was in sharp conflict and the board chose to accept that adduced from the employment interviewer H___ and from the prospective employer to whom claimant was referred, as against that of the claimant himself; and it was, of course, within the board’s province to determine the factual issues including all questions as to the credibility of the witnesses. [Matter of Spack (Corsi), 305 N.Y. 753; Matter of Stubl (Catherwood), 30 A.D. 2d 595.]

The precise substantive issue has not been previously determined by a New York court, involving, as it does, not an explicit rejection of an offer of employment but, rather, an indirect refusal thereof. This was accomplished by claimant’s discouraging an offer of employment which, according to the prospective employer, would otherwise have been extended. Some support may be found in the good-faith test once suggested by us, in dictum, that, "The feasible and sensible test is whether, when a job is physically taken, it is accepted in good faith or whether its acceptance is merely a mask for refusal" [Matter of Centonze (Corsi), 1 A.D. 2d 525]; a refusal of a job offer through subterfuge was held to have disqualified a claimant in a 1942 case decided by the board (Appeal Board #7602-42); and there is authority in point in a number of other jurisdictions [see, e.g., Czarlinsky v. Employment Security Agency, 87 Idaho 65; Lowell v. Maine Employment Security Comm., 159 Me. 177; Barley v. Maryland Dept. of Employment Security, 242 Md. 102; Corrado v. Director of Division of Employment Security, 325 Mass 711; Bradley v. Unemployment Compensation Bd. Of Review, 198 Pa. Super. Ct. 356; Weiland v. Unemployment Compensation Bd. Of Review, 167 Pa. Super. Ct. 554; and. Also 55 Yale L.J. 134, 137-138(19145)].

In this case there was proof that claimant hesitated about accepting the job referral and agreed to the job interview only after being told that his rejection thereof would have to be reported to the insurance section; that claimant told the prospective employer that he was not qualified for the job, that if he should be hired he would foul up the job and would unionize the employer’s small plant, and that for seven years in another employment he was a union official, sitting at a desk looking at the window. Upon accepting this evidence, the board was warranted in its findings "that claimant discouraged the employer from hiring him *** knew that his statements would discourage the employer from hiring him (and (I)n effect *** refused the job to which he was referred."

After finding that the prospective employer’s version of the interview was correct, the board was, of course, justified in finding, as it did, that claimant’s denials of the statements attributed to him by the employer were false and willfully so, and were made to avoid disqualification from benefits.

The decision should be affirmed, without costs. (December 22, 1968)

COMMENTS

  1. By this decision the Court has affirmed that a claimant refuses employment when he makes statements to a prospective employer in order to discourage hire, even though he does not explicitly reject a job offer. In this case the claimant told the employer that he was not qualified for the job, that if he should be hired he would "foul" it up and would unionize the plant.
  2. Appeal Board case #7602 cited herein is reported at Index 1230A-1 (A-750-360. It concerned a sewing machine operator who told a prospective employer the job was too far from home and since she had no experience on sportswear, it would be embarrassing to her to sit among girls as a learner. The Board found that "while claimant did not express terms say that she did not want the job, she clearly indicated to the employer that she did not wish to be hired."
  3. Another type of statement which discourages an offer is one indicating that the claimant does not intend to remain on the job very long.

For example, when a claimant gratuitously informed an employer to whom she was referred that she was not interested in that type of work but would accept it and leave as soon as she found a job in the field in which she preferred to work, resulting in employer’s refusal to hire on this condition, the Appeal Board held that claimant’s attitude was tantamount to a refusal of suitable employment without good cause. (A.B. 35,368).

In another case an offer of referral was withdrawn when claimant informed the employment interviewer that she would tell the prospective employer that she was waiting for her former employer to recall here, in which event she would leave. Since in truth she was on indefinite layoff with no certainty of ever being recalled, the Appeal Board held that claimant’s actions were tantamount to a refusal of employment without good cause. (A.B. 92,194).

  1. It should be noted that not every statement, which causes non-referral or non-hire, is necessarily made for that purpose. Thus, a claimant who has a definite prospect of other employment and discloses this fact to the employment interviewer and the employer, leaving them to decide whether or not the offer remains open, cannot be charged with having refused employment without good cause if the disclosure discouraging referral or hire.
  2. In the above cases in which a disqualification for refusal of employment without good cause was imposed, the claimant discouraged hire by his statements to the prospective employer. The same conclusion could be reached if the claimant discouraged hire by his actions rather than his words; for example, appearing at the job interview intoxicated.

 



A-750-1705

Index No. 1450-2

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

December 2, 1968

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Work without compensation

Appeal Board Case Number 146,813

ASSISTING IN OPERATION OF BUSINESS OWNED BY SPOUSE

A claimant who renders substantial services (devoting several hours almost every day and all day Saturday) assisting in the operation of a business owned by the spouse is not totally unemployed even though no pay is received therefore.

Referee’s Decision: The initial determinations of the local office holding claimant ineligible to receive benefits effective September 28, 1967, on the ground that he was not totally unemployed; charging claimant with an overpayment of $1223.75 in benefits ruled to be recoverable; and holding that claimant wilfully made false statements to obtain benefits by reason of which a forfeiture of 80 effective days was imposed as a penalty in reduction of claimant’s future benefit rights, are sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a plumber’s helper, worked for M.N. intermittently for 13 years. Either the employer called claimant whenever he had work for him or claimant would call to inquire about work. Claimant worked for M.N. on four days in the statutory week ending September 10, 1967 and on four days in the statutory week ending September 17, 1967. He did not work thereafter until Monday, October 2, 1967 when he worked for M.N. for four hours. Thereafter, claimant again worked for M.N. on three days during the statutory week ending October 22, 1967; on two days in the statutory week ending November 12, 1967; and on two and a half days in the statutory week ending November 19, 1967. In the statutory week ending October 29, 1967, claimant worked on three days for D.R., another plumber in the locality. Claimant last worked as a plumber’s helper on Wednesday, November 15, 1967.

On September 28, 1967, claimant’s wife purchased a luncheonette, which she operates from 7 a.m. to 6 p.m., six days a week. She usually employed at least one full-time waitress and a full-time dishwasher. Claimant’s wife actively manages this business. Since the business was acquired, claimant has assisted his wife, almost daily during the week and all day on Saturdays, in the operation of the business. He spends several hours at a time, helping to clean up, wash dishes and making himself generally useful in the luncheonette. He does not wait on customers nor does he serve food. He has not been paid for any of such services. Between September 28 and November 15, 1967, claimant worked on those days when there was work available for him but he, nevertheless devoted some hours after he completed such work, assisting at the luncheonette. Claimant did not communicate with M.N. in the spring of 1968 as he had done each spring in the past 12 or 13 years seeking work. Claimant has not worked for any plumber since November 15, 1967. Admittedly he has not been interested in any employment outside of his wife’s luncheonette at least since the spring of 1968.

Admittedly, claimant has devoted several hours almost every day during the week and every Saturday, in assisting his wife in the operation of her luncheonette business.

Claimant filed an original claim effective September 18, 1967 and received 23 benefit payments thereafter, through March 31, 1968, totaling $1223.75. Each week when he certified for benefits claimant stated that he had done no work on any of the days for which he claimed benefits and that he was available for employment. At no time prior to April 11, 1968 did claimant disclose to the Division of Employment that he had rendered services to his wife in her luncheonette while he received benefits.

Appeal Board Opinion and Decision: The credible evidence now before the Board establishes that claimant rendered substantial services to his wife in the operation of her luncheonette business, almost daily during the week and on Saturdays, continuously since she commenced the operation of that business on September 28, 1967. Even though he was not paid therefore, and notwithstanding that he may have been willing during a part of the period in issue, to engage in other employment in his regular occupation, claimant was not totally unemployed at any time on and after the effective date of the initial determination.

Our decision is in no way based upon the vague and frequently inconsistent testimony of the representative of the employer M.N. Claimant has admitted that he rendered such services at the luncheonette owned by his wife since she started the business on September 28, 1967. His own admissions suffice to establish his ineligibility for benefits. We deem it significant that claimant has not resumed employment in the plumbing trade since he last worked in that occupation on November 15, 1967, and that although he now admits to the fact that he is engaged in the operation of the luncheonette, he further indicates that his relationship with the luncheonette was no different in the earlier period.

Since claimant lacked total unemployment during the period in issue, the benefits paid to him constitute an overpayment, which is recoverable, because he wilfully concealed from the local office pertinent information regarding his claim by his failure to disclose his activities at the luncheonette. The failure to disclose such pertinent information constitutes each weekly certification by claimant a wilful misrepresentation made to obtain benefits requiring the imposition of the statutory penalty.

The initial determinations of the local office are sustained. The decision of the referee is affirmed. (November 20, 1968).

 



A-750-1706

Index No. 915A-2

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

December 16, 1968

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Reduction due to pension

Appeal Board Case Number 144,243

INDIVIDUAL ARRANGEMENT FOR RETIREMENT PAYMENTS

A claimant is subject to the benefit reduction by pension or retirement payments as provided in Section 600 although such payments are not made under a formal or general plan but under an arrangement or plan established for the claimant individually.

Referee’s Decision: The initial determination of the local office ruling that effective December 1, 1967 claimant’s benefit rate be reduced to zero pursuant to Section 600 of the Law is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, an insurance broker, worked for more than 40 years for a corporation engaged in the insurance brokerage business. All of the stock of the employer corporation was owned by its founder. Claimant was neither an officer nor a stockholder, but he had the longest period of service with the firm of any employee. For many years, the principal owner, another employee and claimant each received a salary plus 25 percent of the earnings of the business as compensation for his services. Admittedly, claimant had no proprietary interest in the business and the aforesaid salary and percentage payments were in lieu of all commissions. The principal’s drawings were approximately $25,000 annually besides his percentage of the earnings of the corporation.

On February 13, 1963 after a discussion between claimant and the employer with regard to claimant’s retirement from the employment, the employer summarized the agreement of the parties in its letter to claimant as follows:

"My purpose in writing you this letter is to formalize our conversation regarding your future. We agreed first that you would be relieved of all office duties beginning February 28, 1963 and that it is the intention of my father and me to pay you the sum of $833.33 per month, starting 1/1/63 until your 65th birthday and reduce it to $250 per month beginning with 12/1/67. You have been a dear friend to both of us as well as a trusted business associate. We hope you will enjoy your home and family and fill each day as much as you can."

Claimant retired as of February 28, 1963 and the employer thereafter paid him $833.33 per month out of general funds of the business in accordance with the foregoing agreement. No particular funds were ever set aside by the employer to be used for these monthly payments to claimant.

In January 1964 the claimant resumed working for the employer at its request and thereupon the foregoing monthly payments were suspended and claimant was again paid a salary of $12,000 per year. He continued in the employ of the firm through November 1967 at which time the employer requested that claimant retire in accordance with their agreement of February 1963 when he attained his 65th birthday in November 1967. Claimant last worked on November 17, 1967 and then retired from his employment by the firm. Beginning with December 1, 1967 the employer has paid to claimant the sum of $250 monthly as provided for in the 1963 agreement. When claimant was interviewed in the local office on December 9, 1967, he stated that he was asked to retire on November 17, 1967 and was paid through November 30, 1967; that he was to receive retirement pay at the rate of $250 a month; that to the best of his knowledge his retirement pay was to continue as long as he lived; that he had applied for social security but was interested in employment, preferably in the insurance field and would be willing to forfeit social security benefits in favor of full-time employment.

The local office interviewer appended to the summary of insurance interview, signed by the claimant, a memorandum of a telephone conversation with a Mr. Nolan of the employer’s firm who said, among other things, that the employer was paying claimant $350 a month but "it is not a pension fund" and they would continue "to pay him this amount indefinitely, they hope, but they could terminate these payments at any time they so desire."

However, in response to a formal inquiry by the local office, the employer, per R.A. Nolan, office manager, stated in writing on November 29, 1967, that the amount of pension or retirement payment claimant was receiving was $250 per month; that the period covered by the first pension payment was from December 1, 1967 to December 31, 1967; that the employer contributed 100% in financing the pension and under "comments" further stated:

"Payments are not from a pension fund. Payments are actually retirement pay based on claimant’s length of service with the firm"

The employer did not appear to testify at either the referee or the Board hearing.

Appeal Board Opinion and Decision: The issue before us is to determine whether or not the monthly payments made to claimant by the employer constitutes a pension or retirement payment which requires a reduction of claimant’s benefit rate as provided in Section 600 of the Law. This section reads in part, as follows:

  1. Effect of retirement payments.
  1. Reduction of benefit rate. If a claimant retires or is retired from employment by an employer and, due to such retirement, is receiving a pension or retirement payment under a plan financed in whole or in part by such employer, such claimant’s benefit rate for four effective days otherwise applicable under subdivision seven of section five hundred ninety shall be reduced as hereinafter provided.

Nothing in the Law requires that a pension or retirement payment be made pursuant to any formal arrangement. All that is required is that claimant receive retirement payments or a pension under a plan financed in whole or in part by the employer. (Appeal Board, 115,987).

In the cited case we considered an employer’s retirement system where under a female employee mandatorily retired at age 62, received $123 per month until the age of 65, of which approximately $35 was derived from specific funds (to which the claimant had contributed less than 50 percent) and the balance came out of the employer’s current income. We held that the $123 per month was a retirement payment under a plan financed in whole or in part by the employer and that claimant’s benefit rate must be reduced as provided by Section 600 of the Law.

In the case at bar it is undisputed that the monthly payments were made to claimant by the employer due to claimant’s retirement. It is similarly undisputed that claimant made no contributions to the plan and that is wholly financed by the employer. Accordingly, we conclude that these monthly payments constitute retirement payments under a plan wholly financed by the employer within the purview of Section 600 of the Law. With reference to the characterization by the employer as to the nature of the payments to claimant, we choose to rely upon its written report to the local office dated November 29, 1967, stating unequivocally that the $250 per month constituted retirement payments based upon claimant’s length of service rather than the hearsay comment of the local office interviewer added to the summary of insurance interview signed by claimant and dated December 9, 1967. Of significant evidentiary value are claimant’s statements in that summary of insurance interview, in which he conceded that the $250 per month constituted retirement pay and nothing else. Assuming but not conceding that the employer could terminate the pension payments at any time it desired, this fact would not affect the ultimate month as a pension while he was claiming unemployment insurance benefits. We are only concerned with that period and not with any future contingency after claimant would cease to be an applicant for unemployment insurance benefits. During his benefit year, the receipt of a pension, wholly financed by the employer reduces his benefit rights. Section 600 so mandates. We find no basis in law or fact for the argument that the $250 per month might constitute payment in exchange for a restrictive covenant, not to engage in competition with the employer. Even if such restriction were expressly spelled out, it would not diminish the force and effect of the clear arrangement for the payment of a pension. We observe that it is a common provision in many pension plans provided by unions (and we have adjudicated such matters repeatedly) that the pensioner abstain from working in the same field covered by the particular union, under penalty of forfeiture of such pension. Such a restriction on employment in no way affects our rulings that such pensions come within the purview of Section 600 of the Law.

Accordingly, we conclude that claimant’s benefit rate must be reduced by the prorated weekly amount of $250 monthly and hence to zero.

The initial determination of the local office is sustained.

The decision of the referee is affirmed. (November 14, 1968)

(Dissenting Opinion by one member of the Appeal Board omitted)

COMMENTS

As pointed out in the decision, the result would not be different even if the employer could terminate the pension payments at any time or if they were in exchange for a restrictive covenant not to engage in competition.

Similarly, it would not matter if the pension or retirement payments were limited to a specified length of time. The decision emphasizes that what controls is the receipt by the claimant of a pension or retirement payment during his benefit year and that any further contingencies are immaterial.

 



A-750-1707

Index No. 1660A-3
1265-1
1710.7

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

January 8, 1969

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
REFUSAL OF EMPLOYMENT
Health or Safety

Appeal Board Case 148,046

REJECTION OF LATE HOURS – FEAR OF NIGHT TRAVEL

Genuine and reasonable fear for personal safety constitutes good cause for refusing or leaving employment requiring walking through dark and deserted streets late at night.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective June 21, 1968, on the ground that she voluntarily left her employment without good cause is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, 56 years old, is a widow and has a 20-year old son who attends college. Claimant was employed for about a year and a half as a salesclerk by a chain store selling candy and bakery products. In her first assignment she worked from 12 noon until 9 p.m. She objected to the schedule because it interfered with her home life and she could not prepare the evening meals for her son. She also objected to being required to travel home late at night. Thereupon, the employer transferred her to another branch where she was assigned a 9 a.m. to 5 p.m. schedule which was satisfactory to her. She was then transferred to a branch on Fordham Road, in the Bronx. Her new schedule was 10 a.m. to 7 p.m.

Although these new hours delayed her in preparing the evening meal for her son claimant was willing to accept such hours. On June 19, 1968, the manager of the Fordham Road store advised claimant that she would be given a new schedule from 1 p.m. to 10 p.m. because an employee who worked from 5 p.m. to 10 p.m. had left. Claimant refused this new schedule for various reasons.

By working to 10 p.m., claimant could not arrive home until about 10:30 p.m. She would be unable to prepare her son’s evening meals and he would be required to shift for himself. Principally, claimant had a great fear of traveling to her home after 10 p.m. Claimant would be required to walk about two blocks from where she left the bus to reach her home. Claimant knew that this side street was deserted and dark at the hour at which she would arrive at home. Claimant had a genuine fear of walking the streets alone at the hour indicated. She is a frail woman and weighs about 93 lbs.

Claimant must work to support herself and her son. Within five weeks after leaving the job involved, she obtained employment with another chain of candy stores where she works from 9 a.m. to 6 p.m., which she finds most satisfactory.

The employer failed to appear at either the referee or Board hearings, although duly notified of the time and place thereof.

Appeal Board Opinion and Decision: We have had occasion in recent decisions to pass upon the circumstances of women working nights who evince a genuine fear of traveling on the streets in late hours. We have decided that it is good cause to refuse employment or assignments, which would place such women on the streets late at night in going to and from work. We take cognizance of the fact that there are frequent reports of women being assaulted on dark streets at night. If there is a reasonable basis for a female worker’ s fear of going home from work in late hours because of the neighborhood involved, then such worker should not be compelled to be exposed to danger. We make no general rule. Each case must be decided on its own facts.

Considering the fact that claimant has been furnished previously with daytime employment by this employer and the fact the employer has not seen fit to offer any evidence as to why a similar schedule could be provided and as to the necessity for claimant to be required to work to 10 p.m., we accept claimant’s contentions that the schedule requiring her work to 10 p.m. was not reasonable or suitable for her and involved personal risk. We conclude that claimant had good cause to leave her employment.

The initial determination of the local office is overruled. The decision of the referee is reversed. (December 9, 1968)

COMMENTS

  1. Care should be used in applying this rule. As stated by the Board, each case must be decided on its own facts.
  2. An expressed fear could be found genuine if a reasonable basis for it existed. An obvious consideration is the method of travel. Other factors might be a claimant’s past pattern of working hours, or incidents in which he was involved or knew about.
  3. In this case claimant chose to leave her employment rather than accept a re-scheduling of her hours. The same principle, actions, would apply to a refusal of employment.

 



A-750-1708

Index No. 775.1
1420.1

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

January 10, 1969

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Evidence of

Appeal Board Case 148,052

SELF-EMPLOYMENT: PREPARATION FOR COMMENCEMENT OF OPERATIONS

Substantial activity in preparing for commencement of business may indicate not only unavailability but also lack of total unemployment, even though the venture is abandoned before it becomes operative.

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective July 8, 1968, on the ground that he was not totally unemployed, is overruled. The initial determination of the local office holding claimant ineligible to receive benefits effective July 8, 1968, on the ground that he was not available for employment, is modified to make same effective July 8, 1968 through August 18, 1968.

Appealed by: Industrial Commissioner and claimant

Findings of Fact: Claimant was employed as a salesman for a mal order firm for about five years up to June 1, 1968, when he admittedly left to engage in self-employment in the sale and service of television sets and appliances. He signed a year’s lease for a store commencing June 1, 1968 at a monthly rental of $100. He purchased and erected counters and display cases in preparation for the opening of his business. He filed a certificate of doing business with the county clerk’s office and opened a checking account in a trade name. He negotiated with a distributor for the purchase of its merchandise. However, he was unable to satisfy the distributor of his financial stability or to supply him with merchandise and then after many attempts to do so without success, he abandoned his self-employment plans. On August 10, he answered a newspaper advertisement and on August 26 he became employed as an advertising salesman as a result thereof. Claimant alleged that he was willing to take a job if offered to him during his preoccupation with his own business. However, he made little effort to obtain a job.

Appeal Board Opinion and Decision: The credible evidence establishes that during the period in issue and prior to August 19, 1968, claimant was primarily interested in self-employment and not in obtaining a job. His efforts to obtain employment were casual, because he was preoccupied with starting his own business. It was not until about the third week in August when claimant abandoned his plans of proceeding with his business, that he evidenced his availability for employment.

With respect to claimant’s lack of total unemployment during the period in issue, we are not in accord with the referee that the evidence does not establish that claimant lacked total unemployment up to August 18, 1968. We find that claimant was substantially involved with the preparation for and commencement of a business venture. We conclude that he was not totally unemployed up to August 18, 1969 even though the business did not commence because of the difficulties he experienced in obtaining merchandise and credit.

The initial determinations of the local office holding claimant ineligible to receive benefits effective July 8, 1968 on the ground that he was not totally unemployed and holding claimant ineligible to receive benefits effective July 8, 1968 on the ground that he was not available for employment are modified to make each of said initial determinations effective July 8, 1968 through August 18, 1968 and as so modified are sustained.

The decision of the referee is modified accordingly, and as so modified is affirmed. (December 11, 1968)

COMMENTS

  1. This decision illustrates the propriety of dual determinations of lack of total unemployment and unavailability when a claimant engages in preparatory work toward the beginning of self-employment when the facts are sufficient to support both determinations. Claimant’s self-employment plans had gone beyond the exploratory stage and had ripened in that he had signed a lease and begun paying rent, purchased and erected counters and display cases, opened a checking account in the name of the firm, filed a certificate of doing business, and negotiated for the purchase of inventory.

 

  1. There will be other cases where a claimant has not reached this stage. But is devoting his time to the exploration of business possibilities by investigating suitable opportunities, seeking a loan, looking for a partners, location premises, or engaging in similar preliminary efforts. Such an individual is not as yet self-employed, but his preoccupation towards prospective self-employment would ordinarily justify a determination of unavailability.

 



A-750-1709

Index No. 865A-6

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

February 4, 1969

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS & REPORTING
Misinformation

Appeal Board Case 148,412

DISCONTINUANCE OF REPORTING ON EXHAUSTION; INCORRECT INSTRUCTIONS BY LOCAL OFFICE

If the local office instructed claimant to stop reporting for the remainder of his benefit year when he apparently exhausted his benefits, but some of the benefits became recoverable overpayments due to a back-pay award, the failure to file and report thereafter in the benefit year is excused provided the local office was or should have been aware that such award might be received.

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective October 16, 1967 through December 17, 1967, on the ground that he failed to comply with reporting requirements, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: The following findings of fact rendered by the referee and accepted by the appellant, Industrial Commissioner, are amply supported by the evidence and are adopted as the findings of fact of the Board.

Claimant, an auto repairman, refiled a claim effective May 8, 1967, (inadvertently stated by the referee as May 8, 1968). By initial determination, effective October 16 he was ruled ineligible to an including December 17, 1967, because of his failure to comply with reporting requirements.

Claimant, on the filing in issue, received benefits through the week ending October 15, 1967, when he exhausted his benefits. His booklet was stamped to the effect that he exhausted his benefits as of that time for the benefit year ending March 31, 1968, after which date he could again file a new original claim, providing that he had the required weeks of covered employment and sufficient earnings in the new base period.

Claimant had complained to his union about his dismissal in May. The matter went to arbitration. The arbitrator’s award provided that claimant was to receive back pay for the period from May 15 through July 12, 1967. Thereafter, the insurance office issued an initial determination ruling claimant ineligible because of total lack of unemployment during the period May 15 through July 16, 1967 and an overpayment of $495 was deemed to be recoverable. This initial determination was sustained in Case 520-497-68.

Claimant did not report to the insurance office after October 15, 1967, because he was told he exhausted his benefits and could not get benefits again until the following April 1, 1968.

When claimant refiled his claim, effective May 5 he was interviewed in the insurance office. At that time he informed the insurance office that he had complained to the union and that the union was trying to get him reinstated. Claimant had made similar statements in the employment office when he reported to that office.

To the above, we add the following:

The claimant filed his claim on the form, "Registration for Work and Claim for Benefits" on May 9, 1967 at the local office. On the back of this paper, there is endorsed the following, "5/16/67. I was told by this mgr. Ed. Musik (sic) that I was being let go because weren’t satisfied with my work – I did not quit – I went to the union and they are working to get me back". (Underscoring supplied)

Claimant’s union proceeded promptly with its grievance and on May 22, 1967, filed its request for arbitration. The proceedings were delayed and it was not until December 15, 1967 that the arbitrator made his award reinstating claimant with back pay for the period May 15, 1967 to July 12, 1967. Claimant contended that he repeatedly advised the local office that arbitration proceedings were pending.

Appeal Board Opinion and Decision: The record discloses that the contention of the Industrial Commissioner, that claimant had never informed the insurance office that there were arbitration proceedings pending throughout the time he was reporting for benefits between May 8, 1967 and October 15, 1967, is not supported by the evidence. The local office was advised by claimant on May 16, 1968 at the inception of his claim that "they are working to get me back." This should have put the local office on notice that a grievance was in process. The arbitrator found as a fact that the union had requested arbitration by letter on May 22, 1967. This supports claimant’s advice to the local office on May 16, 1967 that the union was taking action with regard to his unwarranted discharge.

Claimant’s testimony is uncontradicted that he advised the local office from the outset, that union proceedings were pending and that he repeated this information on subsequent occasions. He could not know the outcome of the arbitration proceedings, which had been postponed many times until December 15, 1967.

We conclude that the referee was correct in excusing the claimant’s failure to report from October 16, 1967 through December 17, 1967, because he had followed the instructions of the local office not to report until his new benefit year commenced.

The initial determination of the local office is overruled. The decision of the referee is affirmed. (January 9, 1969)

COMMENTS

In this case claimant’s information that action was being taken on his allegedly unwarranted discharge should have alerted the local office to the possibility of his receiving a back-pay award.

This decision should be compared with A.B. 26,751, reported at A-750-1045 where claimant knew of a pending back-pay award but failed to inform the local office about it. Under those circumstances his discontinuance of reporting upon exhaustion of benefits was not excused even though based on local office instructions.

 



A-750-1714

Index No. 1722-4

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

May 14, 1969

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Distance, travel expense

Appeal Board Case 143,483

RELOCATION OF EMPLOYMENT TO ANOTHER STATE

Transfer of work location to another state is not in itself good cause for leaving employment when the commuting time and distance is not unreasonable and the additional travel expense is provided for.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective October 28, 1967, on the ground that she voluntarily left her employment without good cause is sustained.

Appealed By: Claimant

(Note: An Appeal Board decision of March 5, 1968 affirmed the referee decision sustaining the initial determination. However, the Appellate Division, upon claimant’s appeal, remitted the case to the Board for further proceedings on the ground that the evidence submitted was inadequate to support the findings. The Board then held a hearing and rendered the following decision.)

Findings of Fact: Claimant was employed for about 11 years as an assembler by a manufacturer of hair novelties. She worked on a machine, which inserted brushes in hair rollers. Claimant did part of her work by hand and machine. She originally was a pieceworker and earned $86 to $88 a week. During the last two years of her employment, the assembly operation was transferred to the firm’s Georgia plant and claimant continued to work in New York on a weekly basis. Her wages were $66 at the beginning and her terminal pay was $74 a week. Claimant continued to work on another machine, but was unable to keep up with the production requirements. She was warned of this by the employer and she claims this made her nervous.

Claimant lives in upper Manhattan and the employer’s establishment was also located in Manhattan in New York City. Claimant’s working hours were from 8 a.m. to 4:30 p.m. She usually left her home at about 7:25 a.m. and traveled about 30 minutes by subway and paid 20¢ fare each way.

Claimant left her job on October 17, 1967, because the particular operation in which she was engaged was to be transferred to the employer’s branch in Kearny, New Jersey, and claimant was unwilling to work at that plant. The employer agreed to furnish free transportation to its employees by having two buses meet them at West 14th Street and 7th Avenue, New York at 7 a.m. or 7:20 a.m. to bring them to the factory in Kearny, New Jersey. This arrangement was to be effective only during the first nine months after the transfer of the operation to Kearny, New Jersey. Thereafter, claimant and the other employees who accepted the transfer would have to travel to New Jersey at their own expense. This would have caused claimant to spend $1.80 a day for subway and bus fares, as compared to 40¢ a day she would spend during the first nine months that she would work at the New Jersey plant. In order to reach the plant in New Jersey, after the nine month period, claimant would have had to leave her home at about 6:20 a.m. in order to get the bus at the bus terminal at 8th Avenue and 40th Street. To get to the latest bus leaving 14th St. and 7th Avenue at 7:20 a.m. claimant would have to leave her home at 6:50 a.m.

The union, of which claimant was a members, approved of the transfer, and in its agreement with the employer, it provided for the payment of severance pay to those workers who refused to accept the transfer and also to those, who after accepting the transfer and after working one month in New Jersey, would then leave the job. Claimant was paid $103 as severance pay when she left her job. She refused to try the new assignment in New Jersey for even one month.

As reasons for leaving her job, claimant contended that if she accepted the transfer, she would have to leave her house at an early hour in the morning when it was unsafe for her to be on the street; her travel time would take 40 minutes longer; she had earned substantially more money when she worked on piecework; if she left her job after working nine months in New Jersey, she could not file a valid claim for benefits in New York; that she did not have to accept employment in New Jersey because she is a resident of the State of New York and paid her taxes in New York; that she would not be compelled to pay income taxes to New Jersey and New York and finally, that two co-workers who did not transfer were paid benefits.

At the Board hearing, held pursuant to the order of the Appellate Division reversing the Board’s decision, evidence was submitted to the effect that if claimant left her employment after working in Kearny, New Jersey, for nine months, she could then file a valid claim in New York and would be entitled to benefits under either the Interstate Benefit Payment Plan, the Combined Wage Plan or the Extended Combined Wages Plan. If she filed against the State of New Jersey, she would receive a benefit rate of $49 a week, whereas her benefit rate in New York, based solely on her earnings in New York, would be $37 a week. Furthermore, in filing her New York State income tax reports, claimant would be credited with any income tax she would have to pay to the State of New Jersey on her earnings in that State.

Appeal Board Opinion and Decision: Claimant did not have good cause within the law to refuse the assignment in Kearny, New Jersey, at the time it was made to her in October 1967. She was to continue doing the same work, which she had performed for this employer and for which she was qualified by her training and experience. The rate of pay was the same and her travel time would not exceed one and one-half hours one way (it would be one hour and fifteen minutes) and her fare would have remained the same as when she worked in New York for the first nine months following the transfer.

Section 593.2(b) of the Law provides that a claimant has good cause to refuse employment "if acceptance thereof involves travel expense which is greater than that required in her former employment unless the expense be provided for." In this case, the employer would provide transportation for the claimant to New Jersey during the first nine months, so that she would not incur any additional travel expense by accepting the transfer. We have repeatedly held that travel time not in excess of one and one-half hours one way is not deemed excessive. (See Appeal Board 9576; 10,189 and 13,798.) Claimant’s travel time from her home to Kearny via the subway to 14th Street and 7th Avenue and then by bus would have been within this limitation.

There is no substantial evidence to show that claimant’s health or safety would be adversely affected if she accepted the transfer to the Kearny plant. Furthermore, the change in her job duties and the method of payment of her salary, which occurred two years ago, cannot be accepted as a compelling reason for leaving her employment at the time in question. For the foregoing reasons we conclude that claimant did not have good cause to leave her employment in October 1967, on the basis of the conditions as they then existed. (See Matter of Fischl, 28 A.D. 2d 1021, affirming Appeal board, 135,438; Matter of Fanzo, 29 A.D. 2d 598, affirming Appeal Board 136,179) both of which cases were cited by the Appellate Division to hold that additional time spent in traveling to work and fear of bodily harm on the streets in the early morning hours did not constitute good cause.

However, claimant also bases her justification for leaving her job, rather than accepting the transfer to Kearny, New Jersey, upon conditions which would be brought into existence if she were to leave her employment after working in Kearny for nine months. Since the employer would no longer pay her additional fare of $1.40 a day or $7 a week, which she would have to pay herself, claimant would then have good cause to leave her employment at that time, pursuant to Section 593.2(c) of the Law. However, inasmuch as this condition did not exist at the time claimant actually left her job in October 1967, it did not justify her leaving her employment at that time.

Claimant’s contention that she would not be eligible for benefits under the New York State Unemployment Insurance Law, if she filed for benefits after working nine months in New Jersey, is likewise without validity. It is true that she would not have had 20 weeks of earnings in covered employment in New York during the 52 weeks prior to filing her claim in New York in July 1968, and therefore would not be eligible for benefits solely under the New York law based on her earnings in this State.

However, as a New York resident, claimant could file a claim in New York, as the "agent" state, against the State of New Jersey, as the "liable" state, under the three different benefit payment plans available to her. Under the Interstate Benefit Payment Plan, she could apply for benefits based on her earnings in New Jersey. This plan makes it possible for individuals to collect unemployment insurance benefits from a state in which they have qualifying wages, although they are not present in that state. Since the State of New Jersey is a signatory to that arrangement, it would become the "liable" state, which would pay benefits on claims filed by claimant in New York, which would be the "agent" state. Under the New Jersey Unemployment Compensation Law, claimant would be entitled to a benefit rate of $49 a week for 26 weeks based on her New Jersey earnings. Therefore, she would be eligible to collect full benefits, based upon her employment in New Jersey. It is significant to note that if claimant were eligible for benefits and filed in New York in October 1967, based on her New York earnings, she would be entitled to a benefit rate of only $37.

The other two plans under which claimant, a New York resident, could file for benefits when she had earnings in another state, such as New Jersey, are (1) the Interstate Plan for combining wages, used when claimant is not eligible in either the agent or liable state, but may receive benefits by combining earnings in several states where she was employed, and (2) the Extended Interstate Plan for Combining Wages, used when the benefit rate in the agent or liable states is not the maximum for said state, but can equal the maximum by covered employment. Under this plan, claimant could combine her earnings for nine months in New Jersey and three months in New York and receive greater benefits than by using only her New Jersey earnings.

In New Jersey, the employer was subject to the Federal Unemployment Insurance Tax Law, because it had at least four employees for seven weeks during a calendar year. It therefore become subject to the New Jersey State Unemployment Compensation Law from the day it commenced operations in that state. (New Jersey Unemployment Compensation Law, Section 4109 sub (h)(7) – par. 43:32-19). Consequently, by accepting the transfer to work in New Jersey, claimant’s unemployment insurance benefit rights would be protected from the first day of her employment in that state.

This arrangement for reciprocal agreements with the several states of the Union was created because the unemployment insurance programs are operated under separate state laws. It is necessary therefore for the states to enter into various interstate arrangements dealing with workers who work in several states and with claimants who move from the state in which they have accumulated benefit rights. These arrangements encourage a claimant to move from a state where no suitable work is available to one where there is a demand for the type of service he is able to render. (See Par. 2050 of Unemployment Insurance Reports, C.C.H.R. 4549.) This encourages a mobility of movement of the worker from one state to another without fear of losing any employment insurance benefit rights because of his acceptance of employment in another state. For this reason, we reject claimant’s contention that she had a right to refuse employment for which she is reasonably fitted by training and experience, at the prevailing rate of pay and working conditions, merely because the job is in another state. To hold otherwise would be to defeat the very purpose and concept, which led to the creation of the Interstate Benefit Payment Plans.

With regard to claimant’s objection to accepting employment in New Jersey because it might involve the payment of income taxes to the State of New Jersey while paying income taxes as a resident of New York, such contention of claimant is also untenable. Section 620(a) of the Tax Law of the State of New York provides "that a resident shall be allowed a credit against the tax otherwise due under this article for any income tax imposed for the taxable year by another state of the United States, a political subdivision of such state, or by the District of Columbia upon income derived therefrom and subject to tax under this article."

The decision of the Appellate Division raised three questions to be resolved upon remittal to the Board.

  1. The additional cost of transportation to claimant after the nine month period. We have pointed out that at such time section 593.2(c) of the Law would come into play and claimant then would have good cause to leave the job because of a failure to provide for the extra cost of transportation. Section 593.2 refers to refusal of employment for such reason. Section 593.1 dealing with voluntary separation incorporates this provision in providing that it is good cause to leave a job if circumstances developed in the course of employment justify refusal of employment in the first instance under Section 593.2
  2. The removal of claimant from covered New York employment. We have treated this question herein by showing that claimant would lose no benefit rights by so doing under the three plans discussed at length herein. In fact, claimant would be entitled to a higher benefit rate thereunder than she could receive if the employer remained in New York and claimant was laid off under non-disqualifying conditions.
  3. The removal of the employer out of the State may be good cause per se to quit employment. We have resolved this question by pointing out that such fact alone is not controlling if the transportation to the new place out of State does not exceed one and one-half hours travel time and the additional expense of transportation is provided for by the employer (Section 593.2(c)).

We come finally to claimant’s objection to the disqualification because she alleges several of her co-workers who refused to accept the transfer, filed claims for benefits in New York and were not disqualified. On this appeal, we are only concerned with a ruling on the correctness of the referee’s decision on the issue of whether this claimant left her employment without good cause. Since the details of the claims filed by claimant’s co-workers and the rulings of their respective local insurance offices thereon are not before us on this appeal, we are in no position to pass judgment on the actions of the insurance offices on such filings.

On all the facts in this case, we conclude that claimant did not have good cause to refuse the offered transfer of employment to the New Jersey plan of her employer and that her leaving her employment under these circumstances in October 1967, was without good cause. She thus became subject to disqualification provided for by Section 593.1 of the Law.

The initial determination of the local office disqualifying claimant from receiving benefits effective October 28, 1967, on the ground that she voluntarily left her employment without good cause is sustained. The decision of the referee is affirmed. (April 18, 1969)

 



A-750-1715

Index No. 1605F-5

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

June 4, 1969

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Voluntary leaving or refusal

Appeal Board Case 149,204

REJECTION OF SUCCESSOR EMPLOYER’S OFFER

Rejection of an offer for continuing employment with a new owner of the business constitutes a voluntary leaving of employment.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective July 29, 1968, on the ground that she voluntarily left her employment without good cause, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a secretary, worked for an insurance company in Jamaica, Queens, from January 1967 until June 28,1968. Her salary was $85 a week. In about March 1968, the employer notified the employees of the company that a merger was taking place wherein the company would be absorbed by a large insurance company. Between March and the end of June 1968, the successor employer notified claimant that she would continue in their employment and would receive a $5 a week increase if she would work in Manhattan. She did not wish to work in Manhattan and declined the offer. She left her job on June 28, 1968, when the successor employer took over.

Appeal Board Opinion and Decision: Considering the facts in the light most favorable to claimant, we do not concur in the conclusion reached by the referee that claimant did not voluntarily leave her employment without good cause. The business would continue uninterrupted though under new ownership. It is undisputed that the new business owner was willing to continue claimant in her job, but to relocate in Manhattan. Claimant did not wish to continue her employment even though she was offered a $5 increase because she did not want to work in Manhattan. This was not a justifiable reason under the law. Under the circumstances, claimant must be deemed to have voluntarily left her employment without good cause.

The initial determination of the local office is sustained. The decision of the referee is reversed. (May 19, 1969)

COMMENTS

The referee had held that there was no voluntary leaving of employment but that claimant’s declination to continue with the new owner was a refusal of employment which he found to be academic because it occurred before benefits were claimed. (See Index 1215F).

 



A-750-1716

Index Nos. 1605B-2
1695.2

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

June 24, 1969

INTERPRETATION SERVICE – BENEFIT CLAMS
VOLUNTARY LEAVING
Discharge or leaving
Health or safety

Appeal Board Case 149,438

LAYOFF DUE TO PREGNANCY – REJECTION OF MATERNITY LEAVE

If claimant’s services are terminated under an employer’s policy requiring employees to cease working at a given stage of pregnancy, there is no voluntary leaving of employment even though the claimant declined to accept a maternity leave.

Referee’s Decision: The initial determinations of the local office, disqualifying claimant from receiving benefits effective October 5, 1968, on the ground that she voluntarily left her employment without good cause, and holding her ineligible to receive benefits effective October 7, 1968, on the ground that she was not available for employment, are overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a clerk-typist, was pregnant, with an expected date of confinement of January 1, 1969. She had been employed at a bank since July 1965 and was a permanent employee, entitled to participate in the employer’s profit sharing and stock-purchase plans and other employee fringe benefits. Claimant’s physician had reported that she was capable of working up to the probable date of her confinement. However, the employer’s policy was to require its employees to cease working after completing the sixth month of pregnancy. At such time, the employer’s rules provided that such employees could obtain a six months’ maternity leave covering the last three months of pregnancy and the first three months following delivery. If such leave were obtained, the employee’s rights in respect to all of the various participation plans and other fringe benefits and the employee’s seniority in service were preserved without diminution. Upon the completion of such leave, the employee would return to work at the same salary she was receiving at the start of her leave and, if possible, in the same position she had held; if such were not possible, then in a position commensurate with the prior one. Claimant was aware of her right to receive such leave, with all attendant job-protection provisions, but she decided not to apply for it and instead she resigned because she wanted to withdraw, for her own use, the moneys with which she was credited in the participation plans. Her last day of work was October 4, 1968.

Claimant filed a claim for benefits, effective October 7, 1968. During the period subsequent thereto, claimant’s search for employment was curtailed because of her physician’s advice not to use public transportation during the rush hours. When interviewed at the local office on October 21, 1968, she stated that she was relying primarily on the employment service office to find work for her and therefore, up to that date, she had not sought work independently. Again, for the period from October 28, 1968 through November 4, 1968, she advised the local office that she had made no independent search for employment. Whatever contacts she did make with prospective employers were predominantly by telephone and she invariably advised them of her pregnant condition.

Appeal Board Opinion and Decision: Notwithstanding that it is undisputed that claimant was compelled to leave her employment on October 4, 1968, by reason of the rules of the employer which required that she terminate her employment on October 4 because of the stage of her pregnancy, it is nevertheless contended on behalf of the Industrial Commissioner that she must be deemed to have voluntarily left her employment without good cause for the reason that she failed to apply for a leave of absence which would have assured her re-employment by the same employer when and if she was prepared to return to the labor market after the birth of her child. While the contention thus advanced may find some support in prior decisions of the Board, we have now reviewed the matter and conclude that the disqualification provided for in Section 593.1 of the Law has no application under the circumstances herein.

The pertinent language of Section 593.1 of the Law is:

"No days of total unemployment shall be deemed to occur after a claimant’s voluntary separation without good cause from his last employment prior to the filing of his claim***" (Underscoring supplied)

Obviously claimant’s separation from her employment on October 4, 1968 was, in no sense, voluntary. Her separation from the employment on that day was mandatory by virtue of the employer’s policy which required her to cease working when she had reached the sixth month of her pregnancy. It is, of course, true that claimant could have protected her status for subsequent re-employment by availing herself of the privilege of obtaining a leave of absence for a six month period so that she could be assured of re-employment at that time if she intended to remain in the labor market after the birth of her child. However, the Law does not provide for a disqualification due to a claimant’s failure to protect an employer-employee relationship but only for "separation***from***employment."

The test, which must be applied, therefore, is whether claimant’s failure to apply for the leave of absence was the cause for her separation from the employment. The answer is self-evident because, irrespective of any application she could have made for a leave of absence, the employer’s policy mandated the termination of her employment on October 4, 1968. Thus, the conclusion is compelled that her separation from her last employment prior to the filing of her claim was entirely involuntary.

If claimant fails to obtain any employment prior to the time when the leave of absence which she could have obtained would expire and her failure to apply for the leave results in her inability to obtain rehire by her last employer when and if she is prepared to return to the labor market, after the birth of her child, it would then follow that her separation from employment at that time would be the result of her voluntary act in having failed to protect the employer-employee relationship so as to assure herself of re-employment at that time. However, that is not the issue before us. We are concerned solely with whether or not claimant’s unemployment in the period here at issue, prior to the birth of her expected child, is the result of her voluntary separation from the employment. Applying such tests were are persuaded to the conclusion that claimant's’ unemployment in the period with which we are concerned results solely from a lay-off precipitated by the enforcement of the employer's rules.

It thus becomes necessary to determine whether or not claimant was available for employment during the period for which she claimed benefits. An analysis of the proof adduced herein compels the conclusion that claimant failed to establish her availability for employment throughout the period in issue because she failed to demonstrate the diligence expected of a person who is genuinely desirous of becoming re-employed, especially in view of the limited time during which she could have continued to work before the birth of her child. Her job search appears to be mere token in nature and completely inadequate in scope and with respect to the methods she used to learn of possible job opportunities.

The initial determination of the local office disqualifying the claimant for having voluntarily left her employment without good cause is overruled.

The initial determination of the local office ruling claimant ineligible on the ground that she was unavailable for employment is sustained.

The decision of the referee is modified accordingly, and as so modified, is affirmed. (April 25, 1969)

COMMENTS

  1. The decision changes principles previously applied. The same conclusion would have to be reached in comparable situations, that is, where there is a suspension of work with an offer for reinstatement at a distant specific or approximate date. Illustrations would include layoffs at the end of the season by employers engaged in operations conditioned on the seasons of the year, such as resort hotels. A claimant is then not subject to a voluntary quit disqualification when he does not seek an obtainable offer of reinstatement for a future date, or by word or action declines to accept such offer.

Since, as is pointed out in the decision, there has been a non-disqualifying separation from and termination of employment in such a case when the claimant demonstrates that he will not return, a disqualification could thereafter only apply on the grounds of refusal provided the job is actually re-offered to the claimant. A failure by the claimant to reapply for the job at the approximate time on his own initiative may also be considered in evaluating his availability.

However, if the claimant obtain a leave of absence or accepts an offer for reinstatement but fails to return to work when scheduled, there would be a voluntary leaving at that time which is disqualifying if without good cause.

  1. The rule established by this decision should not be extended to intermittent layoffs due to temporary lack of work where a date is set for return to work or where the claimant has reinstatement rights under a union contract. In such instances and in the absence of good cause, a claimant is subject to a disqualification for voluntary quit when he fails to report for work on n the return or recall date, of when prior to such date he manifests that he will not resume work with the employer.

 



A-750-1718

Index No. 1450-4

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

January 19, 1970

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Work without pay

APPELLATE DEIVISION DECISION

Matter of Ida Deutsch

FAMILY ENTERPRISE: ACTIVITY OF MEMBER IN OFF-SEASON

A claimant, who throughout the year is active in the management of a seasonal, corporate family enterprise is not totally unemployed during periods when the business is closed, even though he is neither an officer nor stockholder and receives no remuneration during the slow periods.

DECISION

Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board, filed April 8, 1965, which sustained the determinations of the respondent that the claimant was ineligible to receive benefits for periods during the years 1962, 1963 and that an overpayment of $2,200 in benefits was recoverable, and further imposed a penalty because of wilfully made false statements to obtain benefits.

The claimant was the owner of a hotel, which she leased to a corporation solely owned by her brother and his wife. The corporation operated the hotel business upon the premises and as a rental the corporation was responsible for the complete maintenance of the hotel building and the land connected therewith. The business of the hotel was seasonal and restricted to the summer season of June through September. The claimant was carried on the books of the corporation as an employee and apparently performed the function of hotel manager. It further appears that from the 1930’s until the date of the hearing the hotel business had been primarily operated as a family enterprise even though there was a separate ownership of the hotel business operated by the corporation and the ownership of the land and buildings by the claimant. The board found that despite the existence of the employer corporation, the hotel business remained a family enterprise and that the claimant was concerned with the management of the business throughout the year and, accordingly, was not totally unemployed. There is substantial evidence to support the finding of the board. [See Matter of Wersba (Catherwood), 27 A.D. 2d 890; Matter of Weiss (Catherwood), 28 A.D. 2d 577; Matter of Vasquenz (Catherwood), 26 A.D. 2d 859.]

When an overpayment results from a claimant’s wilful misrepresentations to obtain benefits, the benefit may be recovered even though more than 1 year has expired. [See Labor Law, 594; Matter of Marder (Catherwood), 16 A.D. 2d 303,305.] Upon the present record the board has found that the claimant had a duty to advise the insurance office as to the relationship between herself and the hotel business (employer) when she applied for benefits. The forms, which the claimant made out in applying for benefits, clearly require a disclosure as to self-employment. The record contains various summaries of interviews signed by the claimant, which contain statements by her that would not be true, as admitted by the claimant upon the hearings. The claimant denied having made these statements as signed by her, but it was a question for the board as to whether or not she had made such statements. The present record sustains the finding of the board that the statements made by the claimant were designed to mislead the respondent and constituted wilful misrepresentation for the purpose of obtaining benefits, which were paid, and are recoverable.

Decision affirmed, without costs. October 20, 1969).

 



A-750-1719

Index No. 1740A-3

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

February 16, 1970

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Wages

Appeal Board Decision 150,350

DISSATISFACTION WITH EARNINGS BASED ON COMMISSIONS

When the amount of earnings is not known at the time of hire – as where part of the compensation consists of commissions for sales made – leaving the employment is with good cause if it develops after a reasonable trial period that the earnings are so low that they "would have justified the claimant in refusing such employment in the first instance." [Section 593.1(a)]

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective October 24, 1968, on the ground that he voluntarily left his employment without good cause, is sustained. (The referee did not rule on the initial determination of the local office disqualifying claimant from receiving benefits effective November 14, 1968, on the ground that without good cause he refused employment for which he is reasonably fitted by training and experience.)

Appealed By: Claimant

Findings of Fact: Claimant last worked as a used car salesman for a period of approximately five weeks. Prior to this employment and throughout his working life, claimant had been a machine operator. On his last factory job, he had averaged approximately $143 per week. After the loss of his job due to lack of work, claimant sought other means of earning a living. The employer herein offered claimant a job as a used car salesman, an occupation in which claimant had never engaged, with a salary of $60 per week, plus 20% commission on all sales made. While nothing in the record indicates the number of hours claimant was required to be on the sales floor, such record does reveal that claimant was to work evenings as well as six days a week. Shortly after claimant began his association with the employer, he was asked to remain on the selling floor only four hours each day and to devote the rest of his time to searching out customers on his own.

Subsequent to a trial of five weeks and on October 23, 1968, claimant terminated his employment because during his period of employment he averaged $75 a week. He had received an average of no more than $15 a week in sales commissions. Claimant attributed his meager earnings to the fact that the new car salesmen who were unsuccessful in selling a new car to a customer were selling the customer a used car instead of referring the customer to the used-car salesmen of the employer thereby depriving claimant of the opportunity to make a sale and the commission involved therein. He had understood that the new car salesmen were to refer such customers to him and not make the sale themselves. Since claimant believed that he had given this employment a reasonable time and the good wages which the claimant had expected had not developed, claimant left the employment. On December 10, 1968, claimant obtained employment in his occupation as a machine operator.

On November 14, 1968, the employer herein indicated to the insurance office that it was willing to offer claimant the same job back. This offer was communicated to claimant who refused to accept it.

Appeal Board Opinion and Decision: We do not agree with the opinion of the referee that since there was no change in the terms and conditions of hire throughout the period of his employment, and no circumstances developed during the course of claimant’s employment which would have justified him in refusing the employment in the first instances, claimant should be disqualified for voluntary leaving of employment without good cause. We consider that claimant accepted the job as a used car salesman on a trial basis. This is bolstered by the fact that the record fails to indicate definite terms of employment, such as the number of hours to be devoted to floor sales work, the number of hours to be devoted to seeking out potential customers, and whether salespersons of new cars had the right to make sales of used cars and receive the commission thereon. We are satisfied that claimant worked five weeks and discovered that his average commission per week was only $15 and that he gave the job a reasonable and fair trial. It would not be reasonable and fair to expect the claimant who is not working in his regular occupation to continue working at a job which paid substantially less than his usual occupation for which he had training and experience and could earn substantially more. We therefore hold that claimant left the employment with good cause under the Law.

In view of the foregoing, and since the offer of re-employment was not accompanied by any assurances that the terms and conditions of employment would differ in any respect from the prior period of his employment, we hold that claimant was justified in refusing the offer of re-employment.

The initial determinations of the local office are overruled.

The decision of the referee is reversed. (January 6, 1970)

COMMENTS

This case illustrates an application of the qualification in the rule of Matter of Sellers (A-750-1550) which states that dissatisfaction with wages, even though they are below those which are prevailing for claimant’s occupation, is not good cause for a voluntary quit "unless circumstances are involved which have developed in the course of employment."

 



A-750-1720

Index No. 1610-4

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

March 10, 1970

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Provoked Discharge

APPELLATE DIVISION DECISION

Matter of Robert M. Donahue, 33 AD 2nd 848

LOSS OF LICENSE: CAB DRIVER, REFUSAL TO SUBMIT TO SOBRIETY TEST

Refusal of a police officer’s request to take a chemical test for intoxication, resulting in revocation of operator’s license and consequent loss of employment as cab driver, constitutes voluntary leaving without good cause.

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 29, 1968, which determined that claimant voluntarily left his employment without good cause by provoking his discharge.

Claimant, a cab driver, was arrested on December 2, 1967 by a State Trooper and charged with driving while intoxicated. The trooper requested him to submit to a blood test for intoxication, which he refused to do. He requested an opportunity to consult with legal counsel and about one and one-half hours after the arrest, he conferred with his attorney by telephone. Thereafter, on advice of his counsel, he offered to submit to the test, whereupon he was advised that it was too late. The charge of driving while intoxicated was thereafter dismissed by the court. On February 13, 1968 the Motor Vehicle Bureau held a hearing which resulted in the revocation of claimant’s operator’s license by reason of his refusal to submit to the test. By reason of the revocation, claimant was unable to continue in his employment as a cab driver and applied for unemployment insurance benefits.

By initial determination claimant was held to be disqualified from receiving benefits for voluntarily leaving of employment without good cause. The Referee sustained this determination on the assumption that the determination of the Commissioner of Motor Vehicles was proper. The board affirmed the decision of the Referee granting claimant leave to reopen the case upon a favorable decision in a pending article 78 proceeding to review the determination of the Commissioner of Motor Vehicles which was then pending in this court.

In Matter of Donahue v. Toffany [___A.D. 2d___ (decided October 20, 1969)], this court confirmed the determination of the Commissioner of Motor of Vehicles. Whether claimant’s refusal to take a chemical test thereby causing the revocation of his license constituted a voluntary leaving of his employment without good cause is a question of fact within the province of the board to determine. The decision of the board is supported by substantial evidence and should not be disturbed. [Matter of Fishbein (Catherwood), 28 A.D. 2d 1059].

Decision affirmed, without costs. (December 11, 19690

 



A-750-1722

Index No. 835.2

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

May 4, 1970

INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS, REGISTRATION AND REPORTING
Due Diligence

Appeal Board Decision 154,308

FAILURE TO REPORT TO EMPLOYMENT SERVICE BECAUSE WORK IS IMMINENT

Recall to work may be a valid reason for not reporting to the Employment Service on the working day immediately preceding the recall date. (See "Comments")

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective August 8 through August 10, 1969, on the ground that she failed to comply with reporting requirements, is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a cutter, was laid off from her job on June 27, 1969, because work was slow. She filed an original claim for benefits effective July 1, 1969 and received five benefit payments to August 10, 1969. On her last interview at the insurance office, the insert to claimant’s insurance booklet was marked to indicate that she was due to report to the employment office on Friday, August 8, 1969. However, claimant did not report on that day because she had received a letter from her employer advising her to report for work on Monday, August 11, 1969.

Appeal Board Opinion and Decision: The credible evidence establishes that claimant had good cause not to report to the employment office on Friday, August 8, 1969 as indicated on the insert to her insurance booklet, in view of the fact that her employer had advised her to report for work on Monday, August 11, 1969. We, therefore, conclude that her failure to comply with reporting requirements was with good cause.

The initial determination of the local office is overruled.

The decision of the referee is reversed. (April 14, 1970)

COMMENTS

The Appeal Board found in this case that a cutter’s failure to report to the Employment Service on a Friday was with good cause in view of the fact that she was starting work on Monday of the next week. Conceivably the Board might have reached a different conclusion for a claimant, such as a waiter, where work on weekends is customary. On the other hand, it is also conceivable that a failure to report to the Employment Service could be found to be with good cause even more than one working day prior to the start of employment, if a claimant is in an occupation, such as engineer, where employment is usually on a longer-range, permanent basis, and orders for temporary one or two-day jobs are quite unlikely.

Thus, there is no precise formula for making these determinations. In deciding whether a failure to report to the Employment Service should be excused, consideration should be given not only to the proximity of the re-employment date to the reporting date, but also to factors such as claimant’s occupation and the practices of his industry.

 



A-750-1723

Index No. 780A.5
1040.4

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

July 23, 1970

INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Suspension Period
HEARINGS AND APPEALS
Limitation on jurisdiction

Appeal Board Decision 157,903

LAPSED CLAIM: NEW AVAILABILITY DETERMINATION REQUIRED

A determination of unavailability loses its validity when a claim becomes inactive, so that a new determination must be issued if a claimant is still unavailable when an additional claim is filed after a lapse of time or a change of conditions.

Referee’s Decision: The initial determination of the Out-of-State Resident Office holding claimant ineligible to receive benefits, effective December 15, 1969, on the ground that he was not available for employment, remain in effective because the claimant failed to request a hearing thereon within the statutory period, and also claimant was ineligible to receive benefits, effective March 23, 1970, on the ground that he was not available for employment.

Appealed by: Claimant

Findings of Fact: Claimant, a salesman, filed an original claim for benefits, in New York, effective November 24, 1969. He allowed this claim to lapse when he went to San Antonio, Texas, to look for work. He refiled an interstate claim for benefits, in Texas, against New York, effective December 15, 1969, and reported regularly on this claim until January 21, 1970, when he filed a certification for the statutory week ending January 20, 1970. Thereafter, he allowed this claim to lapse by not reporting thereon any further. He returned to New York, where he refiled another additional claim, effective March 23, 1970. In the interim, on January 29, 1970, the Out-of-State Resident Office issued an initial determination, mailed to claimant at his Texas address, holding him to be unavailable for employment effective December 15, 1969, the effective date of his interstate claim. Claimant did not request a hearing on this initial determination until March 30, 1970, when he learned of its existence. The local office, where he filed in New York, has not issued any initial determination respecting his availability for employment since March 23, 1970, the effective date of his subsequent additional claim.

Appeal Board Opinion and Decision: The Board has had this identical situation presented to it in a prior case. Appeal Board 151,802. In that case also, the referee carried over to a subsequent period, an initial determination of unavailability issued in respect to a prior claim, which had lapsed. The Board said:

"Inasmuch as the local office failed to issue any initial determination as to claimant’s availability in respect to her refiling effective march 4, 1969, the referee had no jurisdiction to rule on any period subsequent to February 2, 1969. We find that orderly procedure required the issuance of a new determination following the refiling of claimant’s claim." (Underscoring supplied)

The Board finds that the same reasoning applies to the present case. The local office not having issued any initial determination in respect to claimant’s availability subsequent to his refiling of his claim, effective march 23, 1970, there was no such issue before the referee. He was limited to ruling only on the initial determination, effective December 15, 1969, which could cover the period only through the date for which claimant last claimed benefits on that claim: viz., January 20, 1970. He would have had such jurisdiction only if the refusal issue, which was properly before him, had in its elements to indicate unavailability. Since claimant did not request a hearing on that initial determination until more than 30 days after it was mailed to his then last known address, his request was untimely and the referee could not rule on the merits thereof for lack of jurisdiction.

The initial determination of the Out-of-State Resident Office holding claimant ineligible to receive benefits, effective December 15, 1969 remains in effect.

There is no initial determination concerning claimant’s availability, effective March 23, 1970, in issue herein.

The referee’s decision, insofar as appealed from, is modified accordingly and, as so modified, is affirmed. (June 30, 1970)

COMMENTS

  1. This case emphasizes that, following the issuance of a determination of unavailability, it is important not only to scrutinize the claim on a continual basis, but also to consider issuing a new determination whenever the claimant refiles after his claim has lapsed.
  2. Appeal Board case 151,802, cited in this decision, concerned a claimant who did not report to the insurance office for about a month because she gave birth. Upon refiling, that office merely continued her ineligibility due to unavailability, based upon a determination issued while she was pregnant. Thus, not only was there an appreciable lapse in the claim, but circumstances had changed. For either reason, a new determination should have been issued, and the Board found that the referee had no jurisdiction to rule on the period subsequent to the refiling.

 



A-750-1724 (Revised)

Index No. 1660A-4

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

October 15, 1970

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Health

Appeal Board Decision 155,946

LUNCH PERIOD: SECTION 162 OF LABOR LAW

In the absence of an employee objection, a 30-minute lunch period in a factory or mercantile establishment is permissible without application to the Industrial Commissioner pursuant to Section 162 of the Labor Law, and therefore cannot avert disqualification because of a separation for unrelated reasons.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 23, 1969 on the ground that she voluntarily left her employment without good cause by provoking her discharge, is overruled.

Appealed By: Industrial Commissioner and employer

Findings of Fact: Claimant was employed as a stenographer and clerk, in a foundry at Oneida, New York, from October 17, 1966 through August 22, 1969. She worked 40 hours a week, from 7 a.m. to 3:30 p.m. with a half-hour for lunch. Claimant was frequently late in arriving at work. During the year 1969 she was late 70 times.

Claimant was unable to get along with one of the foremen and there was a constant clash of personalities, resulting in a lack of cooperation between them in connection with the performance of their work. Claimant had been warned on several occasions about her tardiness and behavior toward the foreman. She admitted she often came late to annoy the foreman and "give him something to complain about." Claimant was late on August 21, 1969 and was discharged at the end of the week, because of her tardiness and lack of cooperation.

Although claimant was allowed only one-half hour for lunch, neither she nor the other workers complained. Under Section 162 of the Labor Law it is provided that workers in a factory are to be allowed at least 60 minutes for the noon-day meal. However, it also provides that the Industrial Commissioner may permit a shorter time to be fixed for the meal period, but such permit must be in writing and be kept conspicuously posted in the main entrance of the establishment.

At the Board hearing, it was established that it is the practice of the Labor Department to permit a 30-minute lunch period without application to the Industrial Commissioner, unless there is evidence that this would be detrimental to the workers, in which case an investigation is made. The employer had requested permission to have a midnight shift for women. Such request was granted by the Industrial Commissioner and a notice was posted authorizing the maintenance of such shift. No complaint had been made by any worker, including claimant, after the posting of this notice.

Appeal Board Opinion and Decision: The referee correctly found that claimant had provoked her discharge by her repeated tardiness and uncooperative conduct toward the foreman, even after she had been repeatedly warned. However, the referee ruled that claimant had good cause to leave her employment because the employer violated the Labor Law in allowing her only 30 minutes for her lunch. The record does not support his conclusion.

The evidence now before the Board establishes that a 30-minute lunch period in a factory is permissible even without application to the Industrial Commissioner, in the absence of any objection by an employee and in the absence of proof of a hardship to such employee because of the shortened lunch period.

Inasmuch as there is a lack of proof that claimant objected to the 30-minute lunch period, there is no apparent reason why claimant’s conduct in provoking her discharge should be excused or waived because of an unproven alleged violation of the Labor Law by the employer. In this day and age when it has become economically essential for a large percentage of married women to go to work, it is to their advantage and usually it is their desire, to leave work as early as possible in order to have sufficient time to attend to their domestic chores. To do so, they are even willing to shorten their lunch period. A violation of Section 162 of the Labor Law is enforceable only by action of the Industrial Commissioner and no right of action to recover compensation for any loss sustained by reason of such violation is given to any employee. (See McElroy v. City of New York, 50 Misc. 2d 223, affirmed in 29 A.D. 2d, 737 and Tanner V. Imperial Recreation Parlors, 265 App. Div. 371).

Claimant worked for a considerable length of time, taking a 30-minute lunch period without complaint. Her situation is similar to that in Matter of Sellers, 13 A.D. 2d, 204, reversing Appeal Board, 70,414, wherein it was held that claimant did not have good cause to leave his employment because of the inadequacy of his pay, since he continued to be employed under the same conditions as when he was hired.

For all of the reasons herein above set forth and on the basis of all of the evidence in this case, we conclude that claimant provoked her discharge by her actions and this is tantamount to voluntarily leaving her employment without good cause. She did not leave her employment because of the 30-minute lunch period. She was properly disqualified from receiving benefits under Section 593.1 of the Law.

The initial determination of the local office is sustained.

The decision of the referee is reversed. (August 6, 1970)

COMMENTS

In the above case, claimant was discharged because she was frequently late in arriving at work and was uncooperative. Presumably the Board would have reached the same conclusion had she left voluntarily for reasons other than objection to the lunch period, or even because of the short lunch period, in the absence of evidence that she complained about it.

 



A-750-1727

Index No. 1650A-7
1650D-7
1710.4

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

November 23, 1970

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Safety

Appeal Board Decision 158,730

REASONABLE SAFETY REQUIREMENT; NET FOR SHOULDER-LENGTH HAIR

If a male worker needs protective headwear on the job because of shoulder length hair, leaving because of objection to the reasonable device chosen by the employer is without good cause.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective February 26, 1970, because he voluntarily left his employment without good cause, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant was rehired as a band-saw operator, by a former employer, a manufacturer of electrical products, on February 24, 1970. He has a beard, which is about three or four inches long and he wears his hair nearly shoulder length. When hired, claimant was informed that safety rules required the wearing of protective clothing designed to prevent accidents due to such hairstyles. This could be either a safety hat or a hair-net. The decision as to which would be used to be made by the department supervisor. Claimant decided to wear a hat.

On the next day, claimant’s department supervisor ordered him to wear a hair-net rather than a hat. Claimant refused and sought a reassignment to other work, from the personnel office. There was no other job assignment for him. Claimant then resigned.

Appeal Board Opinion and Decision: The evidence herein establishes that claimant understood that his supervisor’s choice of protective headwear for him was to be a hair-net and the claimant did not wish to wear one. Since the choice of the specific item of protective clothing to be worn was the supervisor’s prerogative and there is no evidence to show that the choice was not a reasonable one, the claimant had no basis for any objection to the supervisor’s order directing him to wear the hair-net. Accordingly, claimant did not have good cause to resign from his job rather than comply with the supervisor’s reasonable order.

The initial determination of the local office is sustained.

The decision of the referee is reversed. (October 16, 1970)

 



A-750-1730

Index No. 1460A-6
1460B-7

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

March 4, 1971

INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Payments without Work

Appeal Board Decisions 160,995 & 161,000

PAID VACATION OR HOLIDAY AFTER TERMNATION

A claimant is ineligible for benefits for a properly designated paid vacation period, or paid holiday, even though his employment was terminated prior thereto.

A.B. 160,995

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective July 20 through August 2, 1970, because it was a paid vacation period for which no benefits are payable, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a planning administrator, worked for an optical company for more than six years through July 10, 1970, when he was laid off because of a lack of work. At that time he was given vacation pay for the two-week period from July 20 through August 2, 1970, which had been designated as a vacation period for all employees in a vacation notice, dated January 26, 1970, posted on the bulletin boards in the plant.

Opinion: The issue in this case is whether or not a claimant, whose employment was terminated prior to a duly designated vacation period, and who was then given his vacation pay, is eligible for benefits during the designated vacation period. This issue has been considered by the Board on several occasions subsequent to the amendment of Section 591.3 of the Labor Law, which became effective April 26, 1963. In Appeal Board 107,486, the Board ruled that notwithstanding that claimant’s employment was terminated prior to the designated vacation period, since claimant had received his vacation pay at the time of his discharge, by mandate of the statute he was ineligible to receive benefits for such vacation period. More than seven years later, this precise issue was again considered by the Board, which then concluded that the Legislature, in enacting the 1963 amendment dealing with vacation period or holiday, did not contemplate a situation where claimant’s employment has been terminated prior to the scheduled vacation period and claimant has been prepaid for such vacation period (Appeal Board 153,497). In That decision, the Board reconsidered and overruled the earlier decision in Appeal Board 107,486.

In order to ascertain the intent of the 1963 Legislature in amending the Law dealing with a vacation period or a holiday, we must consider the statute as it existed prior thereto. Subdivision 3 of Section 591 was newly added to the Labor Law in 1958 (L. 1958 c. 387, Sec. 13). It provided that no benefits shall be payable to a claimant during a vacation period. It defined a "vacation period" as a period during which a claimant has a temporary respite from work, and for which entire period such claimant is given a vacation payment or allowance by his employer directly, and such claimant was substantially fully employed by such employer during the last work week before and the work week immediately following such period [Section 591.3(a)]. Subdivision 3(b) provided specific conditions where a claimant was not eligible for benefits during a vacation period even though he was not substantially fully employed by his employer during the work weeks immediately before and after the vacation period. In subdivision 3(c), there was again a reference to a vacation period in which claimant had a respite from work. Subdivision 3(d) of the 1958 statute stated, in part:

"(d) a period during which a claimant has a respite from work is not a vacation period even though he is given a payment or allowance by his employer for such period, if

* * *

"(2) immediately preceding the beginning of such period or immediately thereafter the employment of such claimant is terminated."

As the administration of the new statute dealing with vacation period proceeded, it was subjected to various criticisms. The sponsor for the 1963 amendment of Section 591.3 of the Law observed, that unemployment insurance is properly payable only to claimants who are suffering a loss of wages due to unemployment and that there is no loss when an individual receives full pay for a holiday or for a vacation, even though he is not working during that period. The sponsor further observed that the 1958 law permitted the payment of unemployment insurance benefits, in addition to full pay for a holiday or for a vacation in certain cases, and that this should not be permitted. It proposed that a claimant shall not be considered unemployed on any day to which vacation or holiday pay is validly allocated under the terms of claimant’s contract of employment (New York Conference on Unemployment Insurance, 1963 Legislative Program).

The industrial Commissioner submitted to the Governor a memorandum in support of the proposed 1963 amendment of Section 591.3, pointing out that the original statue had created results in conflict with the expressed purpose of the Unemployment Insurance Law, and that, under the proposed 1963 amendment, "Agreed or announced days of paid vacation and holidays render a claimant ineligible for benefits…even though the claimant’s employment may have been terminated." In recommending the 1963 amendment, the Industrial Commissioner stated that the bill will minimize duplication of vacation and holiday pay by unemployment benefits in consonance with sound unemployment insurance principles. As a result of the 1963 amendment, Section 591.3 of the Law now reads:

"3. Vacation period or holiday. (a) No benefits shall be payable to a claimant for any day during a paid vacation period, or for a paid holiday, nor shall any such day be considered a day of total unemployment under section five hundred twenty-two of this article.

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

"(c) A paid vacation period or a paid holiday is a vacation period or a holiday for which a claimant is given a payment or allowance not later than thirty days thereafter, directly by his employer or through a fund, trustee, custodian or like medium provided the amount thereof has been contributed solely by the employer on behalf of the claimant and the amount so contributed by the employer is paid over in full to the claimant without any deductions other than those required by law, even if such payment or allowance be deemed to be remuneration for prior services rendered as an accrued contractual right, and irrespective of whether the employment has or has not been terminated.

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

It thus appears that the Legislature was cognizant of the problems that had arisen in administering the original statute dealing with payments for vacation periods. Having considered the statements of the sponsor of the 1963 amendment and of the administrator of the unemployment insurance program, we conclude that the Legislature abandoned its original concepts as to vacation periods and payments therefore and that, by virtue of such amendment, Section 591.3 of the Law no longer views a vacation period as a respite from work. No longer is it material that vacation payments be a bonus for past services rendered. No longer does a claimant’s eligibility for benefits depend on the existence of an employer-employee relationship. The final sentence of Section 591.3(c) is specific and clear. Accordingly, we conclude that a claimant is ineligible to receive unemployment insurance benefits where he was duly paid for a vacation period or a holiday duly designated in advance, "irrespective or whether the employment has or has not been terminated." (Underscoring supplied)

In view of our present position, we reaffirm the decision of the Board in Appeal Board 107,486, and we deem that the decision of the Board in Appeal Board 153,497, is no longer binding.

Decision: The initial determination of the local office is sustained.

The decision of the referee is reversed.

Dissenting Opinion: I must disagree with the position taken by the majority in these cases. I view the circumstances herein as being no different from those of Appeal Board 153,497, wherein the Board concluded that there was no legislative intent to have the provisions of Section 591.3(c) of the Law apply to cases where the employment had terminated in advance of the vacation period. As the Board said therein, after citing the statute and underscoring the words "irrespective of whether the employment has or has not been terminated.":

"It should be noted that the position emphasized above applied to a situation where a claimant, who has been on a scheduled paid vacation and then is no longer employed will nevertheless not be eligible to receive benefits when the said claimant, within 30 days after the expiration of the vacation period, receives payment therefore. It appears the legislature in enacting the said statute, did not contemplate a situation where a claimant’s employment has been terminated, sometime prior to the scheduled vacation, which had been fixed while the said claimant was still employed and the claimant is prepaid the earnings for that vacation. Hence, since the employer-employee relationship in the present case was terminated by claimant’s discharge on March 14, 1969, before the advent of her vacation period, we hold that the money paid to claimant at the time of her discharge did not constitute the two weeks in issue as a paid vacation within the intent of Section 591.3(c) of the Law."

It should be noted that the Board has remained of the same view in respect to this issue, despite two subsequent applications by the Industrial Commissioner (Appeal Board 157,383A and 158,349A).

In each of the cases, under review herein, the very same situation prevails, with minor differences not pertinent to the overall problem. Essentially, during the period in issue, the employer-employee relationship did not exist. Despite the fixation of the specific vacation period or holiday, and regardless of the method of such fixation, the termination of the employment relationship prior to the commencement of the period in issue precludes the application of the statute thereto. This conclusion is in accord with the view expressed in the cited decision, supra and the same result prevail herein. I therefore, vote to affirm the decisions of the respective referees.

A.B. 161,000

Referee’s Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective May 30, 1970, only because it was a paid holiday for which no benefits are payable, and charging claimant with an overpayment of $12 in benefits, ruled to be recoverable, is overruled. The initial determination holding that claimant wilfully made a false statement to obtain benefits, by reason of which a forfeiture of eight effective days was imposed as a penalty in reduction of claimant’s future benefit rights, is modified by reducing the forfeit penalty to four effective days.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a sewing-machine operator, worked for a dress manufacturer for more than seven years until March 27, 1970, when she was laid off due to a lack of work. Claimant’s union is in contractual relations with her employer. The collective bargaining agreement between claimant’s union and her employer provides that the employer was to pay claimant for certain holidays, including Christmas Day, December 25, 1969, and Memorial Day, May 30, 1970. Claimant knew that she was entitled to be paid for those holidays. The insurance booklet issued by the local office to claimant contained printed instructions that she mark the booklet with "N" to indicate no work at all on that day; with a "Y" to indicate some work on that day; with a "P" to indicate that claimant "received or will receive holiday or vacation pay" for such day.

Claimant marked her insurance booklet with a "P" for December 25, 1969. She marked with a "N" for May 30, 1970, because she did not expect to be recalled to work before June 30, 1970. Claimant knew that she was usually paid for holidays after she returned to work. She was recalled to work on June 15 and given the holiday pay for May 30, 1970 on June 23, 1970.

Claimant filed an additional claim for benefits effective April 3, 1970. On June 5, 1970, when she certified for benefits for the statutory week ending May 31, 1970, claimant stated that she was totally unemployed on each day of that statutory week, including May 30, 1970. She knowingly did not certify that she would be paid for the holiday, May 30, 1970. Claimant was paid benefits in the amount of $12 for May 30, 1970.

Opinion: We do not agree with the conclusion of the referee that since claimant was not taking time off from work on May 30, 1970, for purposes of rest, it was not a paid holiday for which no benefits are payable within the meaning of Section 591.3 of the Law.

The primary issue herein is whether or not a claimant, whose employment was terminated prior to a duly designated holiday, and is duly paid therefore, is eligible for unemployment insurance benefits for such designated holiday.

In Appeal Board 160,995, issued simultaneously herewith, we have reviewed the statute dealing with vacation periods and holidays as originally enacted in 1958, and as amended in 1963 (Labor Law, Section 591.3). In that case, we concluded that a claimant is ineligible to receive benefits where he was duly paid for a vacation period or for a holiday which had been duly designated in advance, irrespective of whether the employment has or has not been terminated. Our decision in Appeal Board 160,995, is hereby incorporated herein by reference. Accordingly, we conclude that the claimant herein is not eligible to receive benefits for May 30, 1970, because it was a paid holiday for which no benefits are payable, within the meaning of Section 591.3 of the Law.

The benefits paid to claimant for that day constitute an overpayment, which is recoverable, because she falsely stated that she would not receive pay for that holiday. Since claimant was overpaid in benefits, the wilful misrepresentation which she made in certifying that she would not receive pay for the holiday on May 30, 1970, requires a forfeit penalty of eight effective days.

Decision: The initial determinations of the local office are sustained.

The decision of the referee, insofar as appealed from is reversed.

 



A-750-1731

Index No. 1320D-6

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

March 29, 1971

INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
Lack of Work or Industrial Controversy

Appeal Board Decision 160,176

EMPLOYER’S ASSUMPTION OF CLAIMANT’S DUTIES DURING STRIKE

An office worker loses employment because of an industrial controversy, and is subject to a suspension from benefits, if laid off when his employer, relieved of supervisory responsibilities as the result of a strike of production workers in the establishment, decides to perform his duties.

Referee’s Decision: The initial determination of the local office suspending the accumulation of benefit rights by claimant during a period of seven consecutive weeks, effective May 6 through June 23, 1970, because she lost her employment due to an industrial controversy in the establishment in which she was employed, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a bookkeeper, worked as the office manager of a sheet metal and roofing firm which employed union sheet metal workers, roofers, and engineers. A number of the sheet metal workers performed their services in the building where the employer had its offices and a shop. The other sheet metal workers and the roofers worked outside the premises at various job sites. On May 5, 1970 the sheet metal workers struck the employer. Claimant was laid off at the end of that day. The principals of the employer decided to perform claimant’s duties during the strike because they had no supervisory duties to perform.

Opinion: Section 592 of the Labor Law applies to all cases of unemployment resulting from strikes, lockouts and other industrial controversies (Matter of Heitzenrater, 19 NY 2d 1, 7, affirming 22 A.D. 2d 542, affirming Appeal Board 87,617.) The test to be applied in such cases is whether or not an industrial controversy exists in the establishment where claimant has been employed (Matter of Ferrara, 10 N.Y. 2d 1,9 modifying 11 A.D. 2d 171, affirming Appeal Board, 63,261 et al). The evidence herein demonstrates that claimant and a number of the striking sheet metal workers worked in the same building, which contains both the offices and the shop of the employer. This constitutes the establishment of the employer. It is immaterial that claimant was not a striker, or that neither the office nor the building in which claimant worked was under construction or repair at the time claimant was separated from her employment. Since the strike occurred in the establishment in which claimant was employed and it caused the interruption of her employment, she is subject to the suspension of her benefits as provided in Section 592 of the Law. (See Appeal Board, 87,218; 129,532 through 129,535; 150,742).

Decision: The initial determination of the local office is sustained. The decision of the referee is reversed.

 



A-750-1732

Index No. 1730.3
1735 D-2

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

March 30, 1971

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Vacation
Violation of Terms of Employment

Appeal Board Decision 162,485

POSTPONEMENT OF PROMISED VACATION

Leaving of employment is with good cause when an employer, having agreed at time of hire to a vacation after one year, breaches that agreement by postponing the vacation for a substantial time.

Referee’s Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective September 12, 1970, because she voluntarily left her employment without good cause, is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a bookkeeper, worked for the employer herein for 11 months from October 14, 1969 through September 11, 1970. At the time of hire it was agreed that after claimant had worked one year she would have one week of vacation. Early in September 1970 claimant requested that she be permitted to take her vacation in October. When the employer rejected this request, claimant asked to be allowed to take her vacation in December of 1970. The employer rejected this request and stated that claimant would not be able to take her vacation until the summer of 1971. Claimant left the job on September 11, 1970.

Opinion: The evidence establishes that the employer breached the agreement of hire by refusing to allow claimant to take her vacation after she had worked one year. Accordingly, we conclude that claimant had good cause to leave the job when the employer unreasonably insisted that she wait until the following summer to take her vacation.

Decision: The initial determination of the local office is overruled.

The decision of the referee is reversed.

 



A-750-l735

Index 1150-A2

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

May 10, 1971

INTERPRETATION SERVICE -BENEFIT CLAIMS
MISCONDUCT
Falsification of employment application

Appeal Board Decision 162,012

CONCEALMENT OF ILLNESS AT TIME OF HIRE

A false statement on an employment application made to conceal an illness or disability (epilepsy) constitutes misconduct.

Referee's decision: The initial determinations of the local office disqualifying claimant from receiving benefits effective August 6, 1970, because he lost his employment due to misconduct in connection with his employment and, in the alter- native, because he voluntarily left his employment without good cause by provoking his discharge, remain in effect because the claimant failed to request a hearing thereon within the statutory period.

Appealed by: Claimant

Findings of fact: Claimant, a tester desk man, worked for a public utility from February 16 through August 5, 1970. Prior to being hired, claimant executed a pre-placement medical questionnaire in which he stated, among other things, that he never had epilepsy. He certified thereon that his answers were true. In sub- mitting the subsequent employment application, claimant agreed that any false statement, misrepresentation or failure to disclose pertinent information made at any time during the employment procedure may be sufficient to result in his dismissal. On July 13, 1970, claimant became ill and was taken to the employer's medical department. On the following day, he admitted that his illness resulted from an epileptic seizure and that he has had epilepsy for many years. Claimant was discharged because of the false answer in his medical questionnaire.

Claimant filed an original claim for benefits effective August l0, 1970. On September 9, 1970, the local office mailed to claimant the initial determinations herein. Al though claimant did not immediately read the instructions regarding the request for a hearing he did so about two weeks later. On September 23, 1970, claimant appeared at the local office and requested a hearing.

Opinion: The credible evidence establishes that claimant made a request for a hearing on September 23, 1970, when he appeared at the local office. Such request was made within the period prescribed by the statute and was timely. Accordingly we must consider the merits of the initial determinations issued herein. The evidence establishes that claimant submitted false medical information in connection with his application for employment. Admittedly he concealed the fact that he had suffered from epilepsy for many years. His reason for doing so, i. e. in the past, whenever he told tile truth he was not hired, does not justify such concealment. Falsification of his application for employment constituted misconduct in connection with his employment.

Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective August 1910, because he lost his employment due to misconduct in connection with his employment is sustained.

The decision of the referee is reversed. (February 16,1971).

 



A-750-1738

Index No. 765.11
795.11
820.1
875.3

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

August 11, 1971

INTERPRETATION SERVICE-BENEFITS CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Absence from jurisdiction
Filing and certifying requirements
Seeking other employment

Appeal Board Decision 164,715

REFUSAL TO GIVE DETAILS OF JOB INTERVIEW

Refusal to divulge the details of an alleged job interview in another city justifies denial of benefits for unavailability on the days of absence from the local office jurisdiction and for failure to report due to such absence.

Referee’s Decision: The revised initial determination of the local office holding claimant ineligible to receive benefits effective February 9, 1971, only, and effective February 16,1971, only, because he failed to comply with reporting requirements, and the initial determination holding claimant ineligible to receive benefits effective February 8, 1971, only, because he was not available for employment, are overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant was last employed as a manufacturer’s representative at a terminal salary of $30,000 a year until December 13, 1970. He filed an original claim for benefits effective January 18, 1971 and received four payments. He is scheduled to report to the insurance office on Tuesdays. Claimant failed to report to the insurance office on Tuesday, February 9 and Tuesday, February 16, 1971. Claimant alleges that on Monday, February 8, 1971, he had an appointment with a prospective employer in Boston. He left New York on Monday morning, February 8, and did not return to New York until the evening of February 9. He failed to report to the insurance office on Tuesday, February 16, because he was in Chicago in that day on a job interview. He refused to give any details regarding his interviews to the insurance office or at the referee hearing. He would not divulge such information because he felt it would be detrimental to his efforts to find employment.

Opinion: The Court has held that a claimant is not entitled to receive benefits if he refuses to answer questions relating to his job efforts. (Matter of Sorrentino 277 App. Div. 1073, rev’g Appeal Board 20,361)

Since he persisted in his refusal to divulge the names of or details of the interviews with the prospective employers claimant was not eligible for benefits on the days in issue.

Decision: The revised initial determinations of the local office holding claimant ineligible to receive benefits effective February 9, only, and effective February 16, 1971, only, because he failed to comply with the reporting requirements are sustained.

The initial determination holding claimant ineligible to receive benefits effective February 8,1971 only, because he was not available for employment is sustained.

The decision of the referee, insofar as appealed from, is reversed. (July 8, 1971)

 



A-750-1739

Index 915A-3

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

August 19, 1971

INTERPRETATION SERVICE - BENEFIT CLAIMS
REDUCTION DUE TO PENSION
Pension or retirement payment: definition

APPELLATE DIVISION DECISION

Matter of Benjamin Landsman

INDIVIDUAL PLAN FOR RETIRED EMPLOYEE

A weekly payment following retirement made by an employer in lieu of claimant's participation in the company's general pension plan may properly be held to be a "pension or retirement payment" under Section 600 Of the Law, even though payable only for a limited number of years.

DECISION

Appeal by the claimant from a decision of the Unemployment Insurance Appeal Board ruling claimant's benefit rate to be zero because he was receiving payments from a pension plan financed solely by his employer (Labor Law, §600).

There is no real question here that claimant, 72 years old at the time he left employment, had retired (compare, Matter of Guilfoyle [Dow Jones & Co. - Catherwood], 36 AD 2d 108). Rather the issue is the nature of benefits he is receiving from the employer. Briefly the record reveals that the employer inaugurated a pension plan when claimant was 65 years old and thus ineligible for coverage under the plan. However, the board of directors of the employer on the termination of his employment voted to pay him (or his wife if he died) $65 a week for 3 years because of his many years of faithful service. The board found that this payment was in lieu of his participation in the retirement plan and thus constituted pension or retirement payments and not severance payments as claimant asserted. We find no basis to disturb this determination. Matter of Walker [Reader's Digest - Catherwood], (28 AD 2d 256) is not factually apposite. Nor can we accept claimant's argument that the payments here involved did not require a reduction pursuant to section 600. Claimant's construction of the words "under the plan" is much too narrow considering the legislative intent of preventing "pensioner-claimant" windfalls in the enactment of section 600 (Matter of Guilfoyle [Dow Jones & Co. - Catherwood], supra, at 109-110); N.Y. State Legis. Annual, 1963, p. 370). In our opinion the board could properly find on the facts present in the instant case that section 600 was applicable, and, accordingly, its decision must be affirmed.

Decision affirmed, without costs. (June 28, 1971)

 



A-750-1740

Index 1735 A-4
1290 A-13

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

September 15, 1971

VOLUNTARY LEAVING - BENEFIT CLAIMS
Violation of terms of employment
Wages: insufficient
REFUSAL OF EMPLOYMENT
Wages: general

Appeal Board Decision 165,156A

UNFULFILLED PROMISE OF WAGE INCREASE

An agreement made in the course of employment to increase pay, with the amount and date specified, becomes, in the absence of special circumstances, a condition of the employment which, if not fulfilled, justifies voluntary leaving and subsequent refusal to return without such increase. (For an example of "special circumstances", see A.B. 50,097; A-750-1374)

Referee's decision: The initial determinations of the local office (1) disqualifying claimant from receiving benefits effective October 4, 1970, because she voluntarily left her employment without good cause, (2) disqualifying claimant from receiving benefits effective November 18, 1970, because without good cause she refused employment for which she is reasonably fitted by training and experience, (3) charging her with a recoverable overpayment of $88 in benefits are overruled.

The initial determination of the local office holding that claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of eight effective days was imposed as a penalty in reduction of claimant's future benefit rights is modified by reducing such penalty to four effective days.

Appealed by: Industrial Commissioner and claimant

Findings of fact: Claimant, an alteration hand, worked for the employer for three years until October 3, 1970. Her rate of pay was $2.50 per hour until mid-September, 1970, when she requested an increase to $3 an hour. A week later, the employer agreed to pay claimant $3 per hour beginning with the week ending October 3, 1970. When claimant received her pay for the week ending October 3, 1970, she found that she had been paid at the rate of $2.75 per hour. She left the job after the employer refused to pay her $3 per hour as promised. The prevailing wage in New York City for alteration hands was $2.54 per hour.

Claimant filed an additional claim for benefits, effective October 19, 1970, and stated that she lost her last job because it was "slow, no work". Claimant was paid benefits totalling $88 through November 1, 1970.

On November 16, 1970, claimant was referred by the local office to her last employer who offered to pay her $2.75 per hour. She did not accept the referral nor did she contact the employer. On November 25, 1970, the employer informed the local office that it no longer had claimant's job open.

Opinion: We reject the contention of the Industrial Commissioner that claimant quit the job because of dissatisfaction with her wages. The credible evidence establishes that claimant left her job because the employer breached its agreement to pay claimant at the rate of $3 per hour, effective the week ending October 3, 1970. Claimant had good cause to quit the job because of employer's breach of said agreement. Accordingly, there was no overpayment of benefits to claimant.

When claimant stated that her last employment had ended because it was "slow-no work", she was aware that she had quit the job because the employer had broken its agreement to pay her $3 per hour. Thus, her statement constitutes a wilful misrepresentation made to obtain benefits requiring a forfeiture penalty of four effective days.

We have reconsidered our original ruling that claimant's refusal of reemployment was without good cause because the job offered was suitable and paid more than the prevailing wage for such work in the locality. We agree with the referee's conclusion that claimant had good cause to refuse reemployment under the very same terms that justified her leaving the job.

The Industrial Commissioner urges that different rules should apply, depending upon when the agreement was made. He contends that when the promise of an increase in pay is made at the time of hire it becomes a condition of the employment, whereas a promise made by the employer after the employment has commenced does not constitute a condition of the employment. We reject such contentions. We perceive no basis upon which to distinguish agreements to grant a pay increase at a definite date because of the difference in time when such agreements are made. In this case, the employer's agreement to increase claimant's rate of pay at a definite date constituted a new agreement between the parties for the continuance of claimant's employment. Such agreement is subject to the same interpretation as would be an original contract of hire. If the employer materially violates such an agreement and reneges on his promise to increase claimant's pay at the time agreed upon, it provides good cause for the claimant to quit the job.

The Industrial Commissioner further contends that since the employer offered the prevailing wage in the locality, claimant's refusal of suitable employment was without good cause. Ordinarily this rule obtains. However, it is not only inequitable, but it is unconscionable to invoke the statutory disqualification of refusal of employment without good cause, where an employer has broken his agreement to pay claimant more than the prevailing wage and later offers a lesser sum than agreed upon, and takes refuge in the fact that the wage he offers is not substantially less favorable to claimant than the prevailing wage for such work in the locality. In such case it is not the prevailing wage, but the wage agreed upon that is material and relevant. It would be absurd to rule that claimant had good cause to quit the job because the employer had dealt unfairly with her and then deny her benefits because she refused to resume the employment under the same conditions which had justified her leaving the job.

Accordingly, we conclude that claimant had good cause to refuse the offer of reemployment at $2.75 per hour made by the employer whose employment she had left with good cause because he had breached his agreement to pay her $3 per hour.

Decision: The decision of the Board filed April 6, 1971 (Appeal Board, 163,275), is hereby rescinded.

The initial determinations of the local office disqualifying claimant from receiving benefits effective October 4, 1970, because she voluntarily left her employment without good cause and charging claimant with an overpayment or $88 in benefits, ruled to be recoverable, are overruled.

The initial determination disqualifying claimant from receiving benefits effective November 18, 1970 on the ground that without good cause she refused employment for which she is reasonably fitted by training and experience is overruled.

The initial determination holding that claimant wilfully made a false statement to obtain benefits by reason of which a forfeiture of eight effective days was imposed as a penalty in reduction of claimant's future benefit rights is modified to reduce the forfeiture penalty to four effective days, and as so modified, is sustained.

The decision of the referee is affirmed. (July 16, 1971)

Dissenting opinion: Our original views on the issue now under reconsideration were expressed in Appeal Board, 28,204. We held that the voluntary leaving of employment and the refusal of a subsequent offer of reemployment were to be considered as parts of a whole and that if a claimant had been ruled to have left the employment with good cause, then the refusal of reemployment under the same terms and conditions was also with good cause. Similarly, it was held that if the leaving had been without good cause and the statutory penalty had been imposed on the claimant, there should be no penalty imposed for the refusal because this would be the imposition of a double penalty for the same offense. (cf. Appeal Board, #6,631)

The Appellate Division of the Supreme Court, Third Department, in Matter of Crowe, 280 App. Div. 427, aff'd. 305 N.Y. 699, rev'g. Appeal Board 28,204, did not agree with the Board's concept of "unitary treatment" for a "single offense". The Court said at page 430:

The statute, however, carefully separates voluntary separation from refusal of employment. If they are separate events, as they certainly are in this record, they may not be given unitary treatment. The Division of Placement and Unemployment Insurance itself set in motion the "offer of employment" which was distinct in time and circumstance from the original separation.

This offer of employment, even though from the former employer, fulfilled the statutory definition of an offer of employment and the effect of the separately provided penalty for "Refusal of employment" cannot be avoided by the fact that the State agency selected the same employer to make an offer of renewed instead of entirely new employment.

The Court characterized the leaving and the refusal of employment as "separate events" and then added the comment "as they certainly are in this record." Thus, the Courts clearly limited the effect of their decision to separate occurrences, separated in time by the passage of a significant period.

In its decision in Matter of Bonaparte, 26 AD 2d 843, aff'g. Appeal Board 123,300, the Court, by adoption of certain language from the referee's decision, imposed a further limitation upon the concept of the relationship between the old and new employments. There was no issue of voluntary leaving of employment in the case because the employer making the offer was the penultimate employer prior to the filing of the claim for benefits and the claimant's last employment ended under non-disqualifying conditions. The claimant refused the offer of hire because, during his prior employment of eight months duration, which had terminated by his quitting the job nearly three months, earlier, he had been required to work a considerable amount of overtime without any additional pay therefor. By implication, the referee conceded that this reason would have been good cause for claimant to leave the employment had this issue been presented to him. However, in referring this contention to the issue of refusal, the referee said, "The employer offered terms of reemployment to claimant at $100.00 for a five-clay, 4O-hour week, covering the job as a truck driver. In the event the employer did not comply substantially with the terms of hire, claimant would have been in a position to leave such employment with good cause. Claimant has not established good cause for refusing the job when he did." (emphasis supplied)

The Court, by adopting the referee's language quoted above, thus indicated that, even though the good faith of the employer might be questionable and the claimant might have good reason to anticipate the recurrence of the same situation that caused the leaving of the employment, it was incumbent on the claimant to accept the offer of rehire.

In the instant case the employer breached his contract with the claimant by not paying the full amount of the promised increase. Such a breach of contract has always been held to be a material change to the detriment of the claimant so as to justify the leaving of the employment. But, the offer of rehire at the new wage, established unilaterally by the employer's act, was a good offer of employment to anyone else; why not so when made to claimant?

I agree with the majority of the Board that equity and good conscience would require a ruling that this claimant's refusal was also with good cause. However, I am constrained not to do so because the decisions in Matter of Crowe, supra, and Matter of Bonaparte, supra, preclude this possibility. These decisions and the principles they establish, constitute a firm bar to the application of the ruling made on the issue of voluntary leaving, to the subsequent issue of refusal of employment, merely because the same parties, are involved as employer and employee and the same job is under consideration. These decisions establish these issues as being separate and distinct from each other and requiring separate consideration. Accordingly, I must dissent from the ruling of the majority and hold that the claimant's refusal of the offer of reemployment was without good cause. I vote to adhere to our original decision.

COMMENTS

1. By this decision the Appeal Board has held that an agreement to increase an employee's rate of pay at a definite future date and for a specified amount is binding whether made at time of hire or subsequently, and that "if the employer materially violates such agreement and reneges on his promise...at the time agreed on, it provides good cause for the claimant to quit the job."

2. An opposite conclusion was reached in A.B. 50,097 (A-750-1374). There, however, the rule notes special circumstances, such as poor business conditions and the fact that claimant had received several increases in the past to the employer's maximum for the position.

3. In the instant case the Board also found that refusal to return to work with such employer at less than the agreed rate of pay is with good cause despite the fact that such lesser rate met the test of prevailing wages, stating that it would be "unconscionable" to rule otherwise.

 



A-750-1741

Index 1640B-5
1290A-11

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

October 29, 1971

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Experience or training
REFUSAL OF EMPLOYMENT
Wages

APPELLATE DIVISION DECISION

Matter of James Bus, 374 AD 2d 98

REASSIGNMENT IN LIEU OF LAYOFF

Choosing layoff rather than accepting transfer to another job because it would entail a substantially reduced rate of pay is a leaving of employment without good cause, provided the offer meets the statutory tests, including those of suitability and prevailing wages.

DECISION

This an appeal by the employer from a decision of the Unemployment Insurance Appeal Board, filed January 7, 1971, which affirmed a Referee's decision sustaining initial determinations of the respondent Industrial Commissioner granting benefits to the claimant.

The B Steel Company employed claimants in various positions and departments in its Lackawanna steel plant. A lessening of the amount of work needed by the company resulted in a reduction of the working force and eventually resulted in claimants not being employed at B.

Claimants contend that they had good cause to refuse the jobs offered to them by B prior to being laid off. This in turn depends on whether the board was correct in concluding that a job offer at a wage which would result in a reduction of earnings of 15 percent below the level of prior earnings was so substantial that claimants had good cause to refuse such employment.

B's hiring policy is to start new employees at the lowest entry-level job in one of the plant's numerous departments. As the employees acquire seniority, they fill jobs having higher classifications when such vacancies occur in their department. If there is a reduction in the work force, progression would be downward. Those with the most seniority would bump those in the department having less seniority. In the event that there are no longer a sufficient number of jobs in a department for those employed, the employee who is no longer required in a department is given a "return notice" and sent to the employment office. If work is still not available in any of the plant's departments the employee is laid off. If work is available in other departments, the employee is offered such work. Upon transfer to the new department, if the offer is accepted, the employee becomes the lowest person in terms of seniority and thus would have the least chance of progression to higher jobs in the new department. However, the employee would not lose his seniority in his old department and would be recalled to his original department when business improved.

Here, claimants had progressed in their departments to jobs which were rated above their entry-level job. As a result of reductions in the work force, claimants lost their jobs in their own departments but were offered jobs in other departments. Most of the jobs offered were as laborers in the coke oven and structural shipping departments. The rate of pay for these jobs was $2.765 an hour. The claimants refused the jobs primarily because they felt that the reduction in pay was very great. Had the laborer jobs been in their own department claimants would have been compelled to accept them or been subject to discharge. As a result of refusing the jobs offered, claimants were laid off and filed for benefits.

After a hearing, the referee affirmed the initial determinations granting claimants employment benefits. The referee ruled that because a substantial reduction of earnings would result if the jobs offered were accepted, claimants' refusal was with good cause. In addition, the referee, without specifying, determined that most of the claimants were suited to the offered employment by experience. The Unemployment Insurance Appeal Board following its own prior decisions and without passing on the issue of whether claimants were suited to the jobs offered, affirmed the referee's decision on the ground that the jobs offered would have resulted in earnings substantially below that which they had been earning when laid off. The reduction, being at least 15 percent even under the "Earnings Protection Plan" negotiated by B and the United Steel Workers of America, was substantial and claimants' refusal was therefore with good cause.

There is evidence in the record from which to conclude that there would have been at least a 15 percent reduction in wages from the jobs claimants held during the preceding twelve months. Thus, the board's finding in this regard should be affirmed (Matter of Rumsey Manufacturing Corp [Corsi], 296 N.Y. 113; Matter of Weber [Catherwood], 32 AD 2d 697). Similarly, the board's rejection of B's contention that claimants would have received more than the base pay given to laborers as claimants gained seniority is also supported by the record. Claimants would have been the lowest in seniority in their new departments and thus would have had the least opportunity to be assigned jobs with higher classifications. In addition, the labor force in the higher classifications in the departments where the proposed assignments were to be made was stable and openings of a permanent nature were infrequent.

It is well established that the board is the final arbiter of factual issues and also that it is charged with the responsibility of interpreting the various provisions of the Labor Law relating to unemployment insurance (Matter of Marsh [Catherwood], 13 NY 2d 235, 239).

The question for this court is whether or not there is a rational basis for the board's conclusion that an offer of employment at a wage substantially below that which the employees had been earning constituted good cause for refusal of the offer of employment. (See Matter of Marsh [Catherwood], supra 240)

"The Act [Unemployment Insurance Law] was designed to 'lighten [the) burden' of 'involuntary unemployment' which 'so often falls with crushing force upon the unemployed worker and his family'. (Labor Law. §501.) 'The primary purpose of the law is to ease the hardship of involuntary unemployment due to economic conditions or other conditions beyond the control of the employee. It was not intended as a substitute for a minimum wage law. * * * It was not intended to regulate wages--it was intended as a substitute for the complete, loss of wages forced upon an employee. (Labor Law, §§ 501,522.)' (Matter of Sellers [J. W. Mays. Inc. - Catherwood], 13 AD 2d 204, 205-206." (Matter of Shanley Catherwood, 27 AD 2d 496, 499)

In the Shanley case (supra) this court reversed the board's interpretation of what constituted good cause for the refusal of employment pursuant to subdivision 2 of section 593 of the Labor Law.

The said subdivision 2 of section 593 contains four subparagraphs which specify what shall be deemed not to be without good cause and the fact that the wage offered is less than what the claimants had been previously earning is not mentioned therein. Since the sole ground or fact relied upon by the board for finding there was good cause for the refusal of employment is that the wages were substantially less than that which the employees had been earning in their capacity as skilled workers, the determination was erroneous as a matter of law. (See Matter of Matyevich [Catherwood], 15 AD 2d 397; cf. Matter of Crowe [Corsi], 280 App. Div. 427 affd. 305 N.Y. 699).

To hold otherwise would mean that workers in this State would be subsidized by unemployment insurance benefits when by accepting work for which they are fitted by experience and training they could support themselves. Such a result would be contrary to the purposes of the Unemployment Insurance Law as set forth hereinabove (Matter of Matyevich [Catherwood], supra, 388-390). The result that workers must accept suitable employment or be disqualified from benefits does not prevent such workers from seeking higher paid positions while performing the new employment. The theory relied upon by the board in this case appears to be an application of the rationale applicable to situations involving "prevailing wage" rather than an application of the established basic rules governing what constitutes good cause for the refusal of an offer of otherwise suitable employment.

As noted hereinabove the board has not determined whether or not the jobs offered are those for which the claimants were fitted by training and experience. One cannot refuse suitable full time employment for which he is equipped merely because a different type of employment is preferred. (Matter of Ranno [Catherwood], 21 AD 2d 721). A percentage reduction in salary or wages cannot alone be controlling --"pragmatism" is a word of consequence in the field of Unemployment Insurance Law.

The decision appealed from should be reversed and matter remitted for further proceedings not inconsistent herewith, with costs to appellant against the Industrial Commissioner. (June 24, 1971)

COMMENTS

1. This decision affirms the long-established rule that, refusal to exercise "bumping rights" is not in itself disqualifying, and that the job offered in lieu of layoff must be evaluated as to suitability in the same manner as any other job offer. At the same time, however, the Court strikes down the practice of comparing the wages of the offered job with previous earnings, and holds that a determination in claimant's favor on the ground that the wages were substantially less than those which he had been earning "was erroneous as a matter of law."

2. When a claimant chooses layoff over transfer to another job, the issue is one of voluntary leaving. To resolve the issue, whether or not "bumping rights" are involved, the standards of Section 593.2 of the Unemployment Insurance Law regarding refusal of employment must be applied. This includes the requirements that the offer must be one for which claimant "is reasonably fitted by training and experience," and that the wages, hours and conditions offered are not "substantially less favorable to the claimant than those prevailing for similar work in the locality."

3. The reasoning of the Court in this voluntary leaving case is also applicable to issues of refusal of employment. Whether the offer is made by claimant's last employer or any other employer, a determination in such cases can no longer be based on comparison with previous earnings.

4. The rule or this release should not be applied to instances of voluntary leaving because of a wage reduction (usually for economic reasons) without a change of duties. The principles enunciated under Index 1735 of the Interpretation Service continue to govern such situations.

 



A-750-1742

Index 815.1

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

November 10, 1971

INTERPRETATION SERVICES - BENEFIT CLAIMS
Filing and certifying requirements

Appeal Board Decision 166,767

WORK PRIOR TO FILING

Refusal to identify the firm for which claimant last worked constitutes failure to comply with registration requirements, regardless of whether such work was performed as employee or in self-employment.

Referee's decision: The initial determination of tile local office holding claimant ineligible to receive benefits effective April 1, 1971, because he failed to comply with registration requirements, is overruled.

Appealed by: Industrial Commissioner

Findings of fact: Claimant was last employed as an engineer in repairing data processing machines. This employment terminated by lay-off on December 31, 1970. He filed an original claim for benefits effective January 4, 1971, and received ten benefit payments through March 21, 1971. He was employed from March 22 through March 26, 1971.

Claimant filed an additional claim for benefits on April 1, 1971. He refused to supply the insurance office with the name and address of his last employer because he believed that he had worked as an independent contractor and had been self-employed, and because he believed that it would not be to his best interest to have this firm learn that he was claiming unemployment insurance benefits.

Opinion: The credible evidence establishes that claimant failed to comply with registration requirements because he refused to furnish pertinent information concerning his claim to the insurance office. It is immaterial whether claimant worked in the week in question as an employee or in self-employment. Claimant is required to furnish the insurance office with information regarding the work he had performed prior to filing his claim. It has been held that a claimant is not entitled to receive benefits if he refuses to answer questions relating to his job efforts (Matter of Sorrentino, 277 App. Div. 1073, rev'g Appeal Board, 20,3611 Appeal Board 164,715). Accordingly, we conclude that claimant's refusal to answer questions concerning his last employment constitutes a failure to comply with the registration requirements.

Decision: The initial determination of the local office is sustained.

The decision of the referee is reversed. (October 15,1971).

 



A-750-1743

Index 1715-3
2050A-1

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

January 25, 1972

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Attendance at school training
SECTION 599
Voluntary quit to attend training

Appeal Board Decision 165,640

QUIT TO ATTEND TRAINING

Leaving employment to attend vocational training is without good cause, in the absence of special circumstances. (See "Comments")

Referee's decision: The initial determinations of the local office holding claimant eligible to receive benefits effective February 22, 1971, without disqualifying conditions and granting her approval, pursuant to Section 599 of the Law, for vocational training, are sustained.

Appealed by: Employer

Findings of fact: Claimant was employed part-time as a cashier in a department store from September 16, 1970 until February 19, 1971. She worked evenings, four hours a day on four days a week, starting at 5:45 p.m. In addition thereto, since September 1969, claimant had been attending a college as a fully-matriculated day student, majoring in Correctional Administration. Her school hours were usually 9:00 a.m. to 2:00 p.m. For the semester commencing February, 1971, claimant decided to increase the number of credit courses she was carrying and her school hours were increased accordingly until 3:00 p.m. Claimant found that she could not maintain her augmented school schedule and studies and continue to work, as she had been doing previously. She quit her employment because she considered her education to be more important than her work, filed a claim for benefits and applied for approval of her course of study as vocational training under Section 599 of the Law. Approval was granted and she received three benefit payments of $21.00 each, through March 21, 1971. Such payments were stopped upon receipt of the employer's objection to her eligibility.

In the area where claimant resides and was employed, there has been a significant expansion of the population. As a result, there has been an increase in the number of mercantile establishments in the area. New shopping centers and malls have been constructed and there has been a significant increase in the number of positions as cashier and salesperson. Claimant's occupation is in demand in this area and there are numerous opportunities for such employment in this area.

Opinion: Section 599 of the Law, insofar as is applicable, reads as follows:

Vocational and related training: Preservation of eligibility.

Notwithstanding any other provision of this article, a claimant shall not become ineligible for benefits because of his regular attendance at a vocational training course. ..which the ommissioner has approved and continues from time to time to approve for the claimant.

This language clearly indicates a condition precedent. A claimant must be eligible to receive benefits and does not become ineligible by reason of attendance at a training course approved by the Industrial Commissioner. However, the claimant herein left her employment on her own choice to continue her studies unhampered by her obligations to her employer. She left the employment without good cause and therefore this condition precedent has not been met.

It is argued that the Appeal Board precedent decisions in this type of case would be inconsistent should this claimant be denied approval under Section 599.

In Appeal Board, 151,659, we said:

". ..the Board has repeatedly ruled that although it is commendable for a worker to leave his job in order to go to school and continue his education, however, by doing so, he would be held to have left his employment without good cause (Appeal Board, 21,948; 44,915; 30,538; 75,953)."

(Cf. Appeal Board 28,734; 78,335; 83,930; 113,009). The policy expressed has not been abrogated even for claimants who left employment to obtain vocational training (Appeal Board 112,588; 122,171). The bare desire to obtain further education or vocational training does not constitute good cause to leave employment. Other factors, such as existed in the cases cited in argument on appeal herein, must be found in each case before it can be said that a particular claimant had good cause to leave employment for that purpose. In Appeal Board, 151,659 and cases cited therein, it was held that there was no applicable disqualification from receipt of benefits pursuant to Section 593.1 of the Law. The evidence indicated that, in all instances, there was a leaving of employment with good cause, as in Appeal Board, 151,659, where the claimant was given a leave of absence to attend an upgrading course in skills useful to the employer and given under the auspices of his union in agreement with the employer's association, and then returned to employment with the same employer after completion of the course; or the employment was temporary stop-gap work, obtained for the purpose of providing the claimant with an income until the course should commence. Under these circumstances, the claimant always had an unquestioned basic eligibility to receive benefits without disqualification. In the instant case, this does not appear to be so.

Assume, arguendo, that the claimant had become unemployed through no fault of her own. The record indicates that, even so, approval of her application under Section 599 could not be granted. There is nothing in the record to indicate that claimant's employment opportunities were substantially impaired because of existing or prospective conditions of the labor market in the locality or in the state, or reduced opportunities for employment in her occupation or skill.

The claimant did not have good cause to leave her employment. She is subject to disqualification from receipt of benefits for having done so and therefore she may not be accorded approval of her vocational training under Section 599 of the Law. Claimant was overpaid the benefits she received, but this overpayment is not recoverable.

Decision: The initial determinations of the local office are overruled.

The employer's objections are sustained.

The claimant is disqualified from receiving benefits effective February 20, 1971, on the ground that she voluntarily left her employment without good cause. She was overpaid in benefits however, such overpayment is not recoverable.

The decision of the referee is reversed. (December 15, 1971)

COMMENTS

  1. By this decision the Appeal Board affirms the long-standing rule that leaving employment because it interferes with attendance at school or college is generally without good cause. (See release A-750-l53; Index 1620-4). It states "the policy expressed has not been abrogated even for claimants who left employment to obtain vocational training."
  2. In the instant decision, the Board also indicated that a leaving of employment to attend vocational training may be with good cause when such employment "was temporary stop-gap work, obtained for the purpose of pro viding the claimant with an income until the course should commence." This might apply, for example, to work secured during the summer recess from vocational training which previously had been approved for the claimant under Section 599.

 



A-750-1744

Index l460A-10

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

February 11, 1972

INTERPRETATION SERVICE-BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Vacation pay

Appellate Division Decision: Matter of Dante A. Faccio

and Appeal Board Decision 165,431A

PAID VACATION PERIOD: DEFINITION

If the period for vacation had not previously been designated for a claimant, an accrued vacation payment made by the employer upon discharge is severance pay and, therefore, in such instance, a period following the discharge cannot be a "paid vacation period" within the meaning of Section 591.3 of the Law.

Matter of Faccio

Appeal from a decision of the Unemployment Insurance Board, filed October 8, 1961, which determined claimant was entitled to benefits.

Claimant's employment terminated on January 31, 1964, at which time he was finally discharged. He received in addition to his salary the sum of $800, representing accumulated earned vacation credits. No designation was made by the employer for a vacation period under its union agreement. However, a letter dated January 30, 1964 was delivered to claimant on January 31, 1964, advising him that he had earned a certain number of days of vacation credit for 1963 and 1964 amounting to $800, and "vacation pay [was] to start at date of termination February 3, 1964."

The board found claimant was eligible to receive unemployment insurance benefits for the four-week period immediately fol1owing his discharge. The question narrows to whether the pay received by claimant as accumulated vacation credits was vacation pay or severance pay. It has been firmly established that a dismissed employee, while unemployed and attempting to find work may receive severance pay and yet be entitled to unemployment insurance benefits.(Cf. Matter of Walker [Readers Digest-Catherwood], 27 AD 2d 256,257). Not so, however, with vacation pay designated for vacation purposes. (Cf. Matter of Friedman [Catherwood], 27 AD 2d 473). The requirement of subdivision 3, paragraph (b) of section 591 of the Labor Law in regard to the employer designating time for vacation purposes does not permit a mislabeling or arbitrary designation as vacation pay. This was no vacation for claimant in the true sense of the word, no respite from work with rest and relaxation and an expectation of return at the end of the period. We find that the $800 paid to claimant was clearly a dismissal payment, the right to which was earned by him during prior service. (Matter of Walker [Readers Digest [Catherwood] supra.)

Decision affirmed, with costs. (June 24, 1971)

Appeal Board Decision 165,431A

Referee's decision: The initial determinations of the local office holding claimant ineligible to receive benefits effective August 3 through August 16, 1970, because it was a paid vacation period for which no benefits are payable and charging claimant with an overpayment of $130 in benefits ruled to be recoverable, are overruled.

Appealed by: Industrial Commissioner

Findings of fact: Claimant, a checker-foreman was employed by a manufacturer of railroad equipment for more than six years until July 31, 1970, on which date he was permanently laid off because of a reduction in force. On that date he received payment for three weeks of vacation. On July 14, 1970, while claimant was still employed, the employer posted notices to all employees that the plant was scheduled for a vacation shut-down for two weeks, from August 3 through August 16, 1970, and that unless otherwise notified, maintenance employees would be scheduled to work during the vacation shut-down.

Claimant filed an original claim for benefits on August 6, 1970, effective August 3, 1970 and executed a questionnaire in which he answered in the affirmative, the "Have you received or are you entitled to receive vacation pay during your present period of unemployment?"

Thereafter, when he certified for benefits for the statutory weeks ending August 9, and August 16, 1970 claimant marked his insurance booklet with "N" for each day in those weeks. The instructions in the insurance booklet require that claimant mark "P" for those days for which he "received or will receive vacation pay". Claimant was paid $130 in benefits for the statutory weeks ending August 9 and August 16, 1970. The local office applied $75 in benefits due claimant for the statutory week ending November 8, 1970 as an offset against the overpayment.

Opinion: Since claimant received his vacation pay immediately prior to the vacation period, which had been duly designated by the employer in advance, he was ineligible to receive benefits for such vacation period (Labor Law. Section 591.3. See Appeal Board 160,995).

The case at bar is distinguishable from Matter of Faccio, recently decided by the Court (37 AD 2d 633, aff'g. Appeal Board, l18,289A). In that case the Board rejected the Industrial Commissioner's argument and ruled that the provisions of Section 591. 3 of the Law requiring written advance designation of a vacation period were not met when the employer gave written notice to claimant on the last day of his employment that he had earned $800 of vacation credit and that his vacation pay was to start at the date of the termination of his employment. The Court ruled that the $800 was dismissal pay and that since it was not vacation pay claimant was entitled to benefits. Therefore section 591.3 cannot be applied to the facts herein.

In the case at bar the employer complied with the requirements of the statute and duly designated, in writing and in advance, the vacation period in issue. Since the employer complied with the statutory conditions, claimant was not entitled to benefits for the designated paid vacation period, from August 3 through August 16, 1970, and the benefits which he received constitute an overpayment.

The issue herein is whether or not the overpayment is recoverable. Section 597.4 of the Law provides that, unless it is based upon a retroactive payment of remuneration, any benefits already paid shall not be affected provided they were accepted in good faith, and claimant did not make any false statement, and did not wilfully conceal any pertinent fact in connection with his claim. In the light of these statutory provisions, we have reconsidered our decision filed April 14, 1971 (Appeal Board, 163,445), and concluded that in marking his booklet with an "N" for each of the days in the statutory weeks in issue, claimant made statements which were false, in fact. He was required to mark "P" for all days for which he had received or was to receive vacation pay. It is immaterial that he did not intend to deceive the local office or that he had previously informed the local office that he had received vacation pay. Claimant is obliged to mark his insurance booklet accurately, and since the information which he supplied for the weeks in issue was, in fact, false, the benefits that claimant received constitute a recoverable overpayment, as provided in the Law (Appeal Board, 111,592).

Our attention has been called to Appeal Board 112,250, decided June 2, 1964. Upon re-reading the facts and the opinion in that case, we conclude that the Board erred in the final paragraph thereof wherein it ruled inadvertently that the overpayment received by that claimant was recoverable and stated that there may be no waiver of recoverability of an overpayment where such overpayment results from the retroactive payment of remuneration. Since that claimant had received his vacation pay in advance of the designated vacation period, there could be no retroactive payment of his vacation pay (Appeal Board, 126,049). Accordingly, we conclude that there was no basis in Appeal Board, 112, 250 for the conclusion that there was a retroactive payment of benefits so as to make the overpayment of benefits to that claimant recoverable on that ground.

The initial determination of overpayment indicates that the local office subsequently offset $75 in benefits due claimant for the statutory week ending November 1970, against the overpayment of $130. It should be noted that claimant had been credited with the statutory week ending August 9, 1970 as the waiting week required by the Law.

Decision: The application by the Industrial Commissioner to reopen and reconsider the decision of the Board filed April 14, 1971 (Appeal Board, 163,445), is granted and the said decision is hereby rescinded.

The initial determinations of the local office are sustained.

The decision of the referee is reversed. (January 14, 1972)

DISSENTING OPINION:

The issue involved herein has been the subject of review by the Board and by the Court. Specifically, it resolves itself into the basic question: Is there a paid vacation period during which a claimant is ineligible to receive benefits, after the claimant's employment has been terminated permanently by the employer?

In cases arising subsequent to the effective date of Chapter 794, Laws of 1963 amending Section 591.3, Labor Law (April 26,1963), the Board, despite interpretations to the contrary sought by the Industrial Commissioner and numerous employers, consistently held to the rule that, where all the statutory prerequisites of designation and payment had been complied with, the period originally designated was considered to be a "paid vacation period", during which a claimant was ineligible to receive benefits, even though the employment had terminated sometime prior thereto and the claimant was receiving benefits prior to the designated vacation period. The Board held that only the exact period which had been designated at a time when the claimant was still in employment was to be the period of ineligibility (Appeal Board 107,486).

With the passage of time, however, it became apparent that an incongruous situation had developed. In effect, claimants were being deemed to lack total unemployment and to be in the employment of their former employers at times when they actually were permanently unemployed and were seeking new employment. Furthermore, the periods of such resulting ineligibility would fall within periods wherein claimants were in receipt of benefits. They would receive benefits up to the designated "vacation" period, would then be ineligible on that basis for the designated period and thereafter would resume the receipt of benefits.

An example of the incongruity mentioned above is given by referral to the factual situations found in Appeal Board, 140,717 and Matter of Roman, 25 AD 2d 580, aff'g Appeal Board, 114,593, adhered to on reconsideration in Appeal Board, 120, 546A, cited therein. In Appeal Board, 140,717, the claimant required an additional week of covered employment to permit her to file a valid original claim. During substantial periods of layoff in her base period, she had received holiday pay in two weeks thereof and had reported such to the local office, which then credited her with only three effective days of compensible unemployment in each of the respective weeks. The local office had denied claimant credit for these weeks as weeks of employment when she sought to file a new original claim and the referee had sustained the initial determination, basing his conclusion on Matter of Roman, supra. The Board reversed the decision of the referee, pointing out:

"--, there is a distinguishable feature between that case and the instant case. In Matter of Roman the employer-employee relationship had terminated while here claimant was on a temporary layoff in each of the two weeks in question and the employer-employee relationship continued."

The significant difference thus commented on is set forth in the Board's original decision in Matter of Roman, supra, (Appeal Board 114, 593, adhered to in Appeal Board 120,546A) as follows:

"Claimant's employment terminated long prior to the week here in issue and claimant did not work in any employment during that week. Nevertheless, in pursuance of the provisions or the collective bargaining agreement which was in effect during the period of claimant's employment, claimant was entitled to and did receive a payment from the employer representing holiday pay for Christmas Day which fell in the week ending December 30, 1962.

Opinion: We do not agree with the referee's conclusion that since claimant was not an applicant for unemployment insurance benefits in the week during which the paid holiday occurred, he was entitled to be credited with that week as a "week of employment" on the authority or the Industrial Commissioner's Regulation II g. Appeal Board 165,431A

"Week or employment" is clearly defined in Section 524 of the Law which provides that the term "means a week in which a claimant did some work in employment***" underscoring supplied. The regulation which implements the foregoing section is inapplicable under the facts here involved. Such regulation provides for a credit or a week of employment "even though no actual work is performed" only in instances where the worker is "on paid vacation or other paid leave of absence". He did no work during the week at issue because he had become unemployed prior thereto and continued to be unemployed thereafter. Accordingly, the plain language of the statute compels the conclusion that the week involved was not "a week of employment."

The Court affirmed the Board in a memorandum decision reciting the same facts and coming to the same conclusion.

The first occasion when the Board reconsidered this problem was in Appeal Board, 153,497, (April 1, 1970). The claimant's employment had terminated on March 14, 1969. Her vacation had already been scheduled for the weeks ending June 1, and July 6, 1969, and at the time or discharge, she was paid what would have been her wages for those two weeks. The referee sustained the initial determination of ineligibility for those weeks because they were paid vacation periods. On appeal by the claimant and after a further hearing before it, the Board reasoned that it did not believe that the Legislature had contemplated such a situation when it enacted Chapter 794 or the Laws of 1963. Accordingly, the Board held that the two weeks in issue were not paid vacation periods or ineligibility because the employer-employee relationship had been terminated in advance thereof. (In the subsequent case or Appeal Board 160,995, I noted in my dissenting opinion that the Board has remained of the same view despite two subsequent applications by the Industrial Commissioner requesting to reconsider the said decision (Appeal Board, l57,383A and 158,349A)).

In Appeal Board, 160,995 (February 17, 1971) involving an identical factual situation as in Appeal Board, 153,497, the majority of the Board reverted to its prior rulings and again held the claimant to be ineligible for such a period.

They indicated that they considered the decision in Appeal Board, 153,497, as not binding. There the matter rested.

As of that moment, there was an obvious inconsistency between the statute and the Board's application thereof. Section 591.3(a), as amended by Chapter 794, Laws of 1963, reads:

"No benefits shall be payable to a claimant for any day during a paid vacation period, or for a paid holiday, nor shall any such day be considered a day of total unemployment under Section five hundred twenty-two of this article." (emphasis supplied).

Section 522 reads:

"Total Unemployment" means the total lack of any employment on any day."

Section 524, referred to Appeal Board, 114,593 (Mater of Roman, supra) reads:

"Week of employment" means a week in which a claimant did some work in employment"

Taking these three sections and applying to them the interpretations that have been made in accordance with the foregoing discussion, it is seen that under Section 591.3(a), a week in which a claimant receives "holiday" or "vacation" pay is not of "total unemployment", but neither is it a "week of employment" under Section 524. A claimant will get credit for such a week as a week of "covered" employment, if it occurred during a temporary layoff, by the rule of Appeal Board 140,717. It will not be credited as a week of "covered" employment if it occurred after the termination of the employer-employee relationship, under the rule of Matter of Roman, supra. However, it would still be a period of ineligibility to receive benefits pursuant to Section 591.3(a) and Appeal Board 160,995. Thus the sections of the statute and the Board and Court rulings thereon were inconsistent in their treatment of the same factual situation. The issue called for a reasonable and final resolution.

On June 24, 1971, the Appellate Division of the Supreme Court, Third Department rendered a unanimous decision in Matter of Faccio, 37 AD 2d 633, aff'g Appeal Board 1l8,289A. The primary issue in that case, when considered by the Board, was whether the employer had sufficiently complied with the preliminary requirement of Section 591.3 in respect to the designation of the vacation period, in order to constitute the four weeks following the termination of claimant's employment a "paid vacation period". Both the employer and the Industrial Commissioner appealed from the Board's decision that there had been no such compliance and therefore the claimant was eligible to receive benefits during the period in issue.

In his brief in Matter of Faccio, supra, the Industrial Commissioner referred to the purpose of the enactment of Chapter 794, Laws of 1963, and quoted the following from the Court's prior decision in Matter of Miranda, 13 AD 2d 571, aff'g Appeal Board, 72,228:

"---the underlying policy of the "vacation period" concept-- is designed to preclude an employee who is receiving a true rest from work and being paid directly by the employer to receive a windfall in unemployment benefits."

The Industrial Commissioner further argued that: "The fact that claimant was terminated is immaterial since the statute clearly states in paragraph (c) that it applies irrespective of whether the employment has or has not been terminated." Thus, the Industrial Commissioner, in addition to the basic question of proper compliance with the preliminary requirement of announcement, presented to the Court for its consideration the further issue of the materiality of the termination of the claimant's employment prior to the commencement of the vacation period.

The Court noted in its opinion that: "No designation was made by the employer for a vacation period under its union agreement." It then recited the fact of a written notice handed to the claimant on his last day of employment advising him of the number of days of vacation credit he had accrued and the amount of the payment that was being made to him for such purpose. However, at that point, the Court ceased any further consideration of the issue of designation of the vacation period and instead turned directly to the issue raised by the Commissioner of the termination of the claimant's employment. The Court said:

"The question narrows to whether the pay received by claimant as accumulated vacation credits was vacation pay or severance pay. It has been firmly established that a dismissed employee, while unemployed and attempting to find work may receive severance pay and yet be entitled to unemployment insurance benefits. (Cf. Matter of Walker Readers Digest-Catherwood), 29 AD 2d 256,257. Not so, however, with vacation pay designated for vacation purposes. (Cf. Matter of Friedman (Catherwood), 27 AD 2d 473). The requirement of subdivision 3, paragraph (b) of Section 591 of the Labor Law in regard to the employer designating time for vacation purposes does not permit a mislabeling or arbitrary designation as vacation pay. This was no vacation for claimant in the true sense of the word, no respite from work with rest and relaxation and an expectation of return at the end of the period. We find that the $300 paid to claimant was clearly a dismissal payment, the right to which was earned by him during a prior service. (Matter of Walker (Readers Digest-Catherwood), Supra)."

It is clear from the Court's repeated reference to Matter of Walker, supra, and Matter of Friedman, supra, that it was impressed by the Commissioner's reference in his brief to the "underlying policy of the vacation period concept," it had set forth in Matter of Miranda, supra, based on the language of Section 591.3(b), which was left unchanged by Chapter 794, Laws of 1963. Thus, by inference, it pointed to the specific difference in these two cases (Walker, and Friedman), namely, in the Walker case, the claimants were al terminated for their employment whereas, in Friedman, they were on a temporary layoff and returned to work at the close of the designated "vacation" period. Thus the Court has indicated its conclusion that, despite the language of the statute, as amended in 1963, a payment for accrued vacation credits made to an employee at the time of his final termination of employment is not a vacation payment, but is rather severance or dismissal pay, even though the period subsequent to the discharge was already designated as a vacation period. Thus, since there is no "vacation pay", even though there may be a "vacation period" that was properly designated, no ineligibility to receive benefits arises therefrom.

The Court, by its decision in Matter of Faccio, supra, sought to resolve the glaring inconsistencies that had thus developed. It applied the rule of statutory construction and interpretation set forth in McKinney's Statutes, Section 98 (a):

"All parts of a statute must be harmonized with each other as well as with the general intent of the whole statute, and effect and meaning must, if possible, be given to the entire statute and every part and word thereof."

(Commentary)

A statute must receive such reasonable construction as will, if possible, render all its parts consistent with its scope and purpose. Thus, generally a particular provision of an act is not to receive a special meaning at variance with the general purpose and spirit of the act. Inconsistency in the same statute is thought to be contrary to the intent of the lawmakers, and hence it is to be avoided."'(emphasis supplied).

The Court did so by answering the question at the beginning of this dissenting opinion, in the negative, by reasoning that the payment made to a terminated employee is not vacation or holiday pay, but is dismissal or severance pay.

The majority argues that Matter of Faccio, supra, does not apply herein because The Court ruled that the provisions of Section 591.3 did not apply to the facts therein because the payment was not vacation pay. This argument is fallacious, because before the Court could arrive at such a conclusion, it had to consider the provisions of this statute in toto to determine the nature of the payment that was made to claimant Matter of Faccio, supra, does apply herein because, here too, the nature of the payment made to the claimant is such that it renders the ineligibility provisions of Section 591.3 inapplicable. The Court's ruling therein is controlling in this case.

I vote to overrule the initial determination of the local office and to affirm the decision of the referee.

COMMENTS

  1. This rule reflects the Appellate Division decision in Matter of Faccio as interpreted by A.B. l65,431A. The Appellate Division decision was appealed to the Court of Appeals. The Court of Appeals affirmed the Appellate Division decision.
  2. The rule should be applied only when there has been a permanent separation from employment. It should not be applied in cases of layoff, regardless of duration, if there is an expectation of recall.
  3. The principle of this decision does not apply to pay for holidays since those days are established prior to the discharge.

 



A-750-1747

Index No. 765.12
795.6

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

May 25, 1972

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

Appeal Board Decision 170,282

ATTIRE PRECLUDING REFERRAL

Insistence on attire that is generally not acceptable to employers in the area, making referral by the placement office virtually impossible, and his independent job efforts unrealistic, renders claimant unavailable. (Claimant, seeking clerical or sales work, reported repeatedly to the employment service office wearing dungarees, a jersey and sneakers, despite advice of that office that employers would not interview applicants so dressed).

Referee Decision: The initial determination of the local office holding claimant ineligible to receive benefits effective June 28,1971 because he was not available for employment, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a mail clerk, last worked for a state agency for eight months until April 7, 1971 when he was laid off due to a reduction in force. He filed an original claim for benefits in Troy effective April 5, 1971 and transferred his claim to the local office in Albany when he moved to that city on or about June 1, 1971. Claimant received 11 benefit payments through June 27, 1971.

Claimant reported to the employment service in Albany on June 25, 1971, seeking referrals to clerical or to the sales work. He was wearing faded dungarees and a jersey and faded sneakers. He was requested to return on June 28,1971 dressed more appropriately. He reported on June 28 again wearing the same attire. He was advised by the manager of the placement office that no referrals could be made to employers in that area because the employers serviced by that office would not interview applicants for office or sales work who were dressed in dungarees or sneakers. When claimant refused to change the style of his dress on subsequent visits the employment service notified the local office thereof. Claimant did not report to the local office after July 15, 1971 because it had been ruled that he was unavailable for employment.

During the period from June 28 through July 15,1971 claimant applied for sales work to several music stores, to a retail store selling electronic equipment, to a book store, to several large department stores which have record and music departments, and to several mod boutique stores. He did not apply to the personnel offices of the department stores, but spoke only with employees at the record and music counters.

Claimant has had sporadic employment since he left college. He is 26 years of age.

Opinion: We do not agree with the referee that claimant made reasonably diligent independent efforts to find employment because he contacted establishments where employers would raise no objection to his appearance. Claimant was not requested to change his hairstyle or shave his beard. He was merely requested to modify his style of dress to one which would be acceptable to employers in the area. No one can quarrel with claimant’s right to dress, as he deems fit. However, his insistence on attire that was not acceptable to employers serviced by the Albany placement office made referrals by that office virtually impossible and constituted an unreasonable restriction on claimant’s employability. Moreover, his job search during the period in issue was neither diligent nor realistic. There is no convincing evidence that other employers in the area would have accepted claimant for sales or office work, while he insisted on dressing as he did. Accordingly, we conclude that claimant was not available for employment during the period here in issue.

Decision: The initial determination of the local office is sustained.

The decision of the referee is reversed. (April 6,1972)

 



A-750-1749(Revised)

Index 1320E-2
1620-4(b)
1710-8(b)
1725-6(b)

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

February 21, 1973

INTERPRETATION SERVICE - BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
In the establishment, question of
VOLUNTARY LEAVING
Other personal reasons
Safety
Union relations

COURT OF APPEALS DECISION

Matter of William Buckley, 31 NY 2nd 950

REFUSAL TO CROSS PICKET LINE

  1. Refusal by claimant to cross a picket line maintained at his job site by striking employees of another employer operating at the same location, does not subject him to suspension for industrial controversy when no industrial controversy exists "in the establishment" where he is employed.
  2. Such refusal is with good cause, not only when there is fear for personal safety, but also if claimant's union standing would be jeopardized.

REFEREE AND BOARD DECISIONS

Referee's findings of fact: By initial determinations claimants were ruled eligible to receive benefits with no disqualifying conditions. The employer objected, contending that claimants were disqualified from benefits effective May 25, through June 25, 1970, because each lost his employment as the result of an industrial controversy in the establishment in which he was employed.

The parties stipulated that the decision herein would apply with full force and effect to all of the claimants similarly situated who had requested hearings but who were not noticed to appear in this proceeding.

Claimants were either boilermakers, ironworkers, operating engineers or truck drivers who worked for a division of a steel manufacturing corporation. This division concerned itself with constructing and manufacturing the plant facilities within a particular steel manufacturing establishment.

All of the claimants were union employees and were working under a bargaining agreement which was in effect. None had grievances which are here pertinent.

Concurrently four plumbing contractors were engaged in various jobs within the steel manufacturing plant. Because these plumbing contractors had not reached working agreements with a certain construction laborers' union local, that union caused pickets to be placed at the entrances of the steel plant, which pickets carried signs indicating a grievance against the said plumbing contractors.

Pickets were placed during the morning of May 25, 1970, a Monday.

Those of the claimants who had not yet entered the gates did not do so because of the pickets. Those who had entered the plant before the pickets were placed left as soon as they learned of the placement of the pickets.

None of the claimants reported until June 26, the day following the removal of the pickets, with the exception of some of the claimants who may have been called in for emergency work.

Each of the claimants reported on a daily basis but did not work because they were unwilling to cross the picket line. This reluctance to cross such lines was the result of some apprehension as to their safety and also the fear that their own union might take disciplinary action against them for having failed to honor such picket line.

Referee's opinion: Since claimants' employer employed no laborers from the striking union it cannot be said that claimants' unemployment resulted from an industrial controversy in the establishment in which they worked. The Appeal Board has consistently upheld the right of union workers to refuse to cross picket lines established by a striking union without fear of disqualification from benefits. (Matter of Wittlaufer, 277 AD 305, Affirming A.B. 18,177-48). It is immaterial that the nature of the picketing left little reasonable ground for fear of personal injury and that the type of picketing did not physically bar access to the plant.

Referee's decision: The employer's objections are overruled. The initial determinations are sustained.

Appealed by: Employer.

Appeal Board opinion: After a review of the record including testimony and evidence adduced before the referee and due deliberation having been had thereon, and having found that the referee's findings of fact and opinion are fully supported by the record, and that no errors of fact or law appear to have been made, the Board adopts the findings of fact and the opinion of the referee, as the findings of fact and the opinion of the Board. The Board notes that a similar situation was considered by it previously and was decided with the same result. Appeal Board, 155,712, et. seq.

Appeal Board decision: The decision of the referee is affirmed.

Appealed by: Employer.

Appellate Division decision: The decision of the Appeal Board is reversed. (Opinion not reproduced)

Appealed by: Claimant and Industrial Commissioner.

COURT OF APPEALS DECISION

MEMORAMDUM:

There was substantial evidence supportive of the board's findings of the non-striking employees' fears of personal injury and of disciplinary action being taken against them by their union (National Labor Relations Bd. v. Allis-Chalmers Mfg. Co., 388 U.S. 175) should they cross the picket lines. That apprehension of bodily injury may constitute "good cause" (Labor Law, §593, subd. 1, par. a) is scarcely debatable, and that claimants were not required to jeopardize their union standing is also clear (see Labor Law § 593, subd. 2, par. [a]).

The order appealed from should be reversed and the decision of the Unemployment Insurance Appeal Board reinstated, with costs. (December 29, 1972).

 



A-750-1750

Index 1715-4
2050A-2

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

June 8, 1972

INTERPRETATION SERVICE -BENEFIT CLAIMS
VOLUNTARY LEAVING
Attendance at school or training
SECTION 599
Voluntary quit to attend training

Appeal Board Decision 173,143F

"STOP-GAP" EMPLOYMENT

When a claimant, after applying to a training facility for admission to vocational training, obtains employment intending to work until the training starts, good cause exists for leaving that employment to commence the course, provided the training meets the conditions for approval set forth in Section 599 of the Law.

Referee decision: The initial determinations of the local office disqualifying claimant from receiving benefits effective January 8, 1972 on the ground that he voluntarily left his employment without good cause, holding claimant ineligible to receive benefits effective January 10. 1972 on the ground that he was not available for employment and disapproving claimant's request for vocational training allowances under Section 599 of the Unemployment Insurance Law, are sustained.

Appealed by: Claimant

Findings of fact: Claimant entered the military service in September 1968. Prior to that time he had worked in unskilled employment in Syracuse for several months. While in the service claimant was trained as a helicopter repairman and served in such capacity for one year in Vietnam. In August 1971, prior to his discharge from the service claimant applied for admission in a school of aeronautics. He intended to take vocational training in order to meet the requirements set by the Federal Aviation Administration. He was accepted by the school to start January 10, 1972.

After his discharge from the military service claimant applied for unemployment insurance in October 1971 and received one benefit payment at the rate of $75. He then returned to work as an unskilled warehouse aid with his former employer until it was time for him to start his course of vocational training. He resigned from his job effective January 7, 1972 in order to start his course of training on January 10.

Opinion: Claimant's application for training allowances has been turned down on the ground that claimant had an outstanding (dis)qualification and that employment opportunities for which he was reasonably fitted by training and experience were not substantially impaired. We have previously held on several occasions that one who accepts stop-gap employment while waiting for an approvable course of training to begin may leave such employment in order to attend the course without being subject to disqualification. The fact that the stop-gap employer in this case was a former employer of claimant does not change the nature of this employment. This was clearly stop-gap employment undertaken while claimant was awaiting the commencement of a course of vocational training for which he had previously applied and been accepted. As for the lack of impairment of employment opportunities we perceive no basis for this determination when the employment service training form clearly states "Applicant has no civilian skills." Accordingly we find that claimant was not subject to disqualification and was eligible for training allowances. In view of his eligibility under Section 599 his availability is academic.

Decision: The initial determinations of the local office are overruled. The decision of the referee is reversed. (May 2), 1972)

COMMENNTS

  1. The rule of release A-750-1743 (Index 1620-5 and 2510-1) states that leaving employment to attend vocational training is without good cause, in the absence of special circumstances. The "Comments" of that release state that an exception might apply, for example, to "stop-gap" employment secured during the summer recess from vocational training which previously had been approved for the claimant under Section 599. The present decision indicates that where stop-gap employment is concerned, it is immaterial that approval of the training is not obtained prior to the quit; what does matter is whether the training is otherwise approvable.
  2. It thus becomes important in cases of voluntary leaving to attend training to ascertain and compare the date claimant began the employment with the date he first applied for the training. If this comparison leads to the conclusion that the employment was stop-gap, it must then be determined whether the conditions of Section 599 are met. In making such determination, it is immaterial that the employment was full-time, steady and voluntarily terminated.

 



A-750-1754

Index 1620-2
1640C-5
1675-3

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

March 12, 1973

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Other personal reasons
Desire for different work
Military service

Appeal Board Decisions 174,361 et.al.

CONSCIENTIOUS OBJECTOR: ALTERNATIVE SERVICE

A conscientious objector who accepts alternative civilian service assigned by his draft board under the Selective Service Law is not subject to a voluntary leaving disqualification if he leaves such assignment at the termination of his period of obligation.

Referees' decisions:

  1. The initial determination of the local office holding claimant, J.F., eligible to receive benefits effective April 24, 1972 without disqualifying conditions, is overruled.
    Appealed by: Industrial Commissioner and claimant.
  2. The initial determination of the local office holding claimant, H.C. eligible to receive benefits effective December 13, 1971 without disqualifying conditions, is sustained.
    Appealed by: Employer.

Findings of fact: Claimants are both residents of Buffalo, who claimed conscientious objector status under the Selective Service Law. Claimant, J.F., had received his Bachelor of Arts Degree from the University of Buffalo in January 1970. Claimant, H.C., was approximately 19 years of age at the time he claimed conscientious objector status and had no extensive work history. Conscientious objector status was approved for both claimants and in fulfillment of their obligation under the Selective Service Law they were required to perform alternate civilian service approved by the authorities. Pursuant to the Selective Service Regulation they were required to perform this service at a location at least 50 miles from their homes in Buffalo.

Under the procedure set forth above, claimants went to work as aides for the employer herein, a hospital located in Rochester, New York. The employer was aware that claimants were conscientious objectors, and might leave at the end their required term of service. Claimant, H.C., had been given the option by his draft board of service at any of three institutions, the closest of which to his home was the employer herein. The record does not indicate how claimant, J.F., came to be assigned to the employer hospital. At the conclusion of their respective required terms of service and on their release by the Selective Service authorities, both claimants returned to their homes in Buffalo. Claimant, H.C's mother was severely ill and he wished to be with her. Claimant, J.F., wished to continue his education at the University of Buffalo.

After their return to their homes in Buffalo, both claimants sought work and actually obtained some work through their own efforts. During the periods in issue they were found to he available by the local office.

Opinion: Ordinarily, one who accepts employment with full knowledge of the terms and conditions, is not justified in leaving such employment thereafter, absent a change of circumstances, even if he would have had good cause to refuse such employment in the first instance. Matter of Sellers, 13 AD 2d, 204. However, we do not feel that the reasoning in Matter of Sellers is applicable in this case. Under the facts herein, we do not feel these claimants freely and voluntarily accepted the terms and conditions of their employment. They were required to serve in this capacity as an obligation under law. This was a recognized alternative obligation under the Selective Service Law and their leaving to return to their homes when such period of obligation terminated, was with good cause.

The evidence also discloses that both claimants were available, at least to the date of their respective hearings. They sought work and actually obtained work. They were interviewed periodically by the local office and satisfied the local office of their availability. No evidence was presented by the objecting employer which would alter this conclusion.

We are not unmindful of the employer's contention that its account is being charged when it had continuing work available for the claimants and when it had cooperated with the Selective Service Authorities in utilizing the services of conscientious objectors. We feel that such contention must be addressed to the legislature who may wish to consider whether such service should be excluded from the definition of employment under the law. In the absence of such legislative action, we find that the employer's objections herein cannot be sustained.

Decision: The initial determinations of the local office holding claimants eligible without disqualifying conditions are sustained.

The decision of the referee in the case of claimant, J.F., is reversed.

The decision or the referee in the case of claimant. H.C., is affirmed. (December 13, 1972).

Dissenting Opinion

I must dissent from the conclusions reached by my two associates herein. I do not find any merit in the reasoning they have advanced to justify these claimants in voluntarily leaving their employment with the hospital.

The purpose for the enactment of Article 18, Labor Law, (The Unemployment Insurance law), is clearly set forth in Section 501 thereof. It is stated therein that,

"Economic insecurity due to unemployment is a serious menace to the health, welfare and morale of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family, --- the legislature therefore declares that in its considered judgment the public good and the well-being of the wage earners of this state require the enactment of this measure for the compulsory setting aside of financial reserves for the benefit of persons unemployed through no fault of their own." (emphasis supplied)

The basic reason for the enactment of Article 18 is gleaned from the above and specifically from the emphasized portions thereof. It has long been recognized that the right to receive the benefits provided for therein, is not founded on need alone, nor on the reason why the particular employment was undertaken in the first instance. Rather, such right is based solely on the circumstances under which the claimant became unemployed and whether, as finally stated above, such circumstances establish that the claimant became unemployed through no fault of his own. There have been prior cases where it has been determined that, although a claimant left employment of his own choice, there was good cause to do so, and thus, the claimant was unemployed through no fault of his own. Matter of Sweeney, 267 App. Div. 846, rev'g. Appeal Board. 9240; Matter of Shaw, 5 NY 2d 1014, aff'g. 6 AD 2d 354, aff'g. Appeal Board, 58768; Matter of Lauria, 18 AD 2d 848 aff'g. Appeal Board, 79952A; Matter of Russo, 18 AD 2d 846 aff'g. Appeal Board 79951A. However, there have been other cases where the opposite was found to be so and these claimants were not allowed to receive benefits because their employment terminated through their own fault for various reasons. Matter of Pillersdorf, 278 App. Div. 59 rev'g. Appeal Board 22361; Matter of Reiger, 17 AD 2d 269 rev'g. appeal Board UCFE-552. Matter of Shatzer, 19 AD 2d 945, aff'g. appeal Board 96948, Matter of Leofanti, 23 AD 2d 936 aff'g Appeal Board 106,525 Matter of Perry, 24 AD 2d 921 aff'g. Appeal Board 104,840.

I find nothing in these cases that would justify these claimants in leaving their employment at the hospital. True, they both accepted the work as a means of fulfilling their obligation to perform service for their country under the Selective Service Law. However, as pointed out above, the Unemployment Insurance Law does not take into account the reason for the acceptance of any particular employment as being justification for its subsequent relinquishment.

Certainly, considering the desire of claimant J.F. to continue his education, the Board has consistently held that this is not good cause to leave one's employment. Appeal Board 81628, 104,200; 122,171, 165,640. And in respect to claimant H.C., it is significant that there was actually no compelling family reason for him to leave his employment. His wife was living with him while he worked at the hospital and actually was also employed in the same institution. His parents had no real need for his presence in their home for any reason. It is of great further significance that, in respect to both claimants, the hospital was desirous of continuing their employment.

There appears to have been no compelling reason for either claimant to have left his employment. Each displayed merely a basic desire to return to his hometown for reasons which have never been held to be good cause. In our society, people move about constantly to various parts of the country. This desire, in and of itself, does not carry with it the right to receive benefits, in the absence of other justifying circumstances. Certainly the circumstances advanced by my fellow members as such justification, namely, the termination of their period of military service obligation, are not such. The Unemployment Insurance Law was never intended as a medium for paying benefits under such conditions, except where specifically so provided, as in the case of ex-servicemen who receive such benefits pursuant to Chapter 85 Title 5, of the U.S. Code. I believe that, had Congress or our Legislature intended that persons who met their obligations under the Selective Service Law, as did the claimants, should be treated the same as those who actually had performed military service, it would have been so provided in the pertinent statutes. In the absence thereof, I see no basis for the Board to so interpret existing law as to accomplish the same result.

I vote to sustain the employer's objections against the receipt of benefits by both these claimants on the ground that they voluntarily left their employment without good cause.

COMMENT

The employer appealed this decision to the Court.

In the Matter of Fleishman & Chlebowski Jr., [Levine], 43 AD 2nd 624, the court affirmed this Appeal Board Decision.

 



A-750-1755

Index 1320C-5

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

March 19, 1973

Interpretation Service - Benefit Claims
INDUSTRIAL CONTROVERSY
Unemployment due to

APPELLATE DIVISION DECISION

Matter of Joseph J. Hunger, Sr.

RECALL TO WORK DURING STRIKE

A claimant on seasonal layoff with uncertain recall date (such date depending on weather conditions) is not subject to industrial controversy suspension when he refuses to return to work because of a strike in the establishment.

DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 1, 1971, which determined that claimant was entitled to unemployment insurance benefits.

The B.S. Co. Inc., closely connected with the construction industry, operates on a seasonal basis, generally from April until November. The collective bargaining agreement provided for, among other things, protection of seniority rights and other benefits for employees who return each year from seasonal layoffs. Claimant, an employee of appellant, became inactive on December 19, 1969 and thereafter was eligible for and received unemployment insurance benefits. On April 1, 1970 a strike took place at employer's premises and on April 27, 1970 claimant was called to return to work, but refused to cross the picket line at employer's plant. The question presented is whether or not claimant lost his employment as a result of an industrial controversy, and therefore was subject to a suspension of benefits (Labor Law, §592, subd. [l]).

The board has determined as a question of fact that the employment relationship between claimant and his employer terminated on December 19, 1969, the layoff date. Therefore, claimant did not lose his employment as a result of an industrial controversy nor did he leave employment without just cause (Labor Law, §592, subd. [l] §593, subd. [2], par. [b]; Matter of Burger [Corsi], 277 App. Div. 234, affd. 303 N.Y. 654). The factual determination of the board is supported by substantial evidence and it cannot be disturbed on appeal (Labor law, §623).

Decision affirmed, without costs. (October 19, 1972).

COMMENTS

  1. The instant rule should not be applied to temporary layoffs of expected short duration, when there is a definite or approximate date to return.

 



A-750-1757

Index 910.1

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

May 4, 1973

INTERPRETATION SERVICE - BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Base year earnings and employment

Appeal Board Decision 179,158

WEEK OF EMPLOYMENT: PAID VACATION PERIOD

A statutory week which includes one or more days of paid vacation for which benefits would not be payable, when the employment relationship continues, is a "week of employment" for determining entitlement.

Referee decision: The initial determination of the local office holding claimant ineligible to receive benefits effective May 29, 1972, because he did not have at least twenty weeks of covered employment in his base period, is sustained.

Findings of fact: Claimant, a taxi-cab driver, filed an original claim for benefits effective May 29, 1972, thereby establishing a base period from May 31, 1971 through May 28, 1972. He was credited with fourteen weeks covered employment and with earnings of $1,288.23 in his base period, which included $126.52 for a paid vacation in August 1971. In his pre-base period, he had 47 weeks of covered employment and earnings of $4,347.03.

Claimant last worked on August 8, 1971, when he went on vacation for a three week period. Prior to his leaving on vacation, claimant and his employer had agreed that claimant was to have a three week vacation beginning August 9, 1971 and ending August 30, 1971. The employer's vacation schedule listed this vacation period for claimant. Claimant did not return to his employment after his vacation because he had to stay at home to attend his ailing wife. He returned to work in April 1972 and worked four weeks through April 30, 1972.

Claimant had covered employment and earnings in his base period as follows:

EMPLOYER

WEEKS OF EMPLOYMENT

REMUNERATION

C. Operating Co.

17

$1,288.23

WEEKS WITH EARNINGS OF LESS THAN $30 = 2

Opinion: Claimant was in continuous employment through his vacation period. Since this was a designated vacation period within the meaning of the law, claimant is entitled to be credited with these three weeks of employment in his base period. Claimant thus had a total of seventeen weeks of covered employment in his base period and total earnings of $1,288.23 therein. Since he had sufficient weeks of covered employment in his pre-base period he is eligible to file a valid original claim under the alternate condition as prescribed by Section 527.2 of the Law.

Decision: The initial determination of the local office is overruled.

The claimant is eligible to receive benefits, subject to his satisfying the other requirements of the Law. He is to be credited with the weeks of employment and with the remuneration therein as set forth hereinabove.

The decision of the referee is reversed. (April 17, 1973)

COMMENTS

This decision confirms the guideline in Paragraph C-5, Special Bulletin A-710-10 (revised 8/25/76), "Benefit Claims During Vacation Periods and Holidays."

As indicated there the rule would also apply to cases of layoff when the employer-employee relationship continues. It also would apply to paid holidays under these conditions. In addition, both the vacation pay and holiday pay would constitute "remuneration" for entitlement purposes.

 



A-750-1758

Index 1640 B-6

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

May 29, 1973

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Experience and training

Appeal Board Decision 167,920A* et.al.

*Reopened and adhered to by A.B. 182,815A et. al.

REASSIGNMENT IN LIEU OF LAYOFF

A claimant who was hired as a laborer but advanced to higher-paying skilled jobs which he performed satisfactorily for a substantial period immediately prior to layoff, with only sporadic and infrequent work as a laborer during that time, is not reasonably fitted by training and experience for a laborer job and is not subject to disqualification for voluntary leaving when he chooses layoff rather than accepting such unskilled work.

Referee decision: The initial determinations of the respective local offices holding claimants eligible to receive benefits effective various dates, without disqualifying conditions and overruling the employer's objections that claimants should be disqualified from receiving benefits, effective various dates, on the ground that without good cause they refused employment for which they are reasonably fitted by training and experience, are sustained.

Appealed by: Employer.

Findings of fact: Claimants are members of the Steelworkers' Union and worked in the employer's plant. The employer's hiring policy is to start new employees at the lowest entry-level job in one of the employer's many departments. As the employees acquire seniority they fill jobs having higher classification when vacancies occur in their departments. The collective bargaining agreement between the employer and claimants' union, dated August 1, 1968, provided for seniority pools within the various departments of the plant for the purposes of layoff and recall. It also provided that if there is a reduction in the work force, those with the most seniority (two or more years of continuous service) would "bump" those in the department with less seniority; that in the event that there was no longer a sufficient number of jobs in a department, those who are no longer required in that department are sent to the employment office which lays off the employee unless there is work available in other departments; that if work is available in other departments, the employee is offered such work; that if the employee accepts a transfer to a new department, he becomes the lowest person in that department in terms of seniority; that the employee does not lose his seniority in his old department and will be recalled to the original department when business improves.

Claimant, W.A., Jr., age 40, was originally hired on May 11, 1964 as a laborer, grade 2, and was assigned to the Specialty Products Shop. Thereafter he advanced to higher paying skilled jobs such as welder's helper, shear operator, spray painter, press operator, hooker, roller helper and floorman. In the week ending September 7, 1968, he worked two days as a laborer, grade 2. In the week ending May 17, 1969 he worked five days as a laborer, grade 2. In the week ending April 25,1970 he worked one hour as a laborer, grade 2. Claimant last worked on August 7, 1970 in the Specialty Products Shop as a stacker, grade 4, at $3.055 per hour, plus incentive. He was laid off due to a reduction in the work force in his department. Claimant filed an additional claim for benefits effective August 10, 1970 and received benefits through January 10, 1971 and extended benefits through March 21, 1971. On August 10, 1971 the employer offered claimant a job as a laborer, grade 2, in the Structural Shipping yard, at $2.885 per hour, without incentive. He refused the job because of the difference in pay. On September 4, 1970 the local office issued an initial determination holding claimant eligible for benefits. On September 29, 1970, the employer protested the initial determination and requested a hearing. After a hearing thereon, the referee sustained the initial determination by a decision filed January 5, 1971 (Referee #71-296-70). This decision was affirmed by the Appeal Board on April 15, 1971 (Appeal Board 163,615). After claimant filed for extended benefits in January, 1971 he was interviewed on March 24, 1971. Although the employer's personnel department; was then notified that the facts were the same as those previously ruled upon, the local office issued another initial determination of eligibility on March 24, 1971. The employer protested this initial determination and requested a hearing thereon which was held and resulted in the decision of the referee filed June 18, 1971 (Referee #13404-71) which sustained the initial determination of the local office issued on March 24, 1971. This case was appealed by the employer in Appeal Board 166,906, which is now before this Board.

Claimant, J.C., age 21, was originally hired on July 3, 1968 as a laborer, grade 2, and was assigned to the 14" Mill. Thereafter he advanced to higher paying skilled jobs such as catcher, hot saw gauger, scrapman, stock shear gauger and grinder. In 1969 he was transferred to the Electrical Yard Department where he worked as an electrical helper, grade 6; as millwright C and as a motor inspector, both grades 12. He continued to work in that department in 1970 during which he advanced to millwright A (grade 16) and motor inspector 8 and A (grades 14 and 16). Claimant worked as a laborer, grade 2, for one day in the week ending September 28, 1968; for one day in the week ending October 5, 1968; and for two days in the week ending December 14, 1968. He last worked on September 12, 1970 in the Electrical Yard Department, as an electrical helper, grade 6, at $3.225 per hour, without incentive. He was laid off due to a reduction in the work force in his department. On September 15, 1970, the employer offered claimant a job as a sweeper, grade 2, in the Electrical Machine Shop, at $2.885 per hour, without incentive. He refused the job because of the difference in pay and because it was a different shift. Claimant filed an original claim for benefits effective September 14, 1970 and received one benefit payment through September 27, 1970.

Claimant, G.F.S., age 24, was originally hired on September 27, 1967, as a laborer, grade 2, and was assigned to the Blast Furnace. In January 1968, he was transferred to the 44" Mill where he worked as a laborer for the first two weeks of that month. He was then transferred to he electrical section of the Billet Preparation Department where he advanced to higher paying skilled jobs such as electrical helper, electrical oiler and millwright C, grades 6 and 12 respectively. Claimant did not work as a laborer after January, 1968. He last worked on April 3, 1970 in the Billet Preparation Department as an electrical helper, grade 6, at $3.097 per hour, plus incentive. He was laid off due to a reduction in the work force in his department. Claimant filed an additional claim for benefits effective April 6, 1970. On April 23, 1970 the employer offered claimant a job as a laborer, grade 3, in the Brickmason Department, at $2.848 per hour, plus incentive. He refused the job because it was not electrical work and because of the difference in pay.

Claimant, G. S., age 24, was originally hired on June 30, 1964 as a laborer, grade 2, and was assigned to the Structural Shipping Yard. Thereafter he advanced to higher paying skilled jobs such as car blocker, craneman and truck loader (grades 6 and 8). He worked as a laborer, grade 2, in this department on two days in the week ending August 30, 1969, on one day in the week ending September 6, 1969 and on one day in the week ending September 13, 1969. Claimant was then transferred to the Structural Repair Shop as a handyman, grade 5. Thereafter he worked in that shop as a painter, as a fitter helper, as a crane operator and as a punch and cutter operator (grades 5,6 and 8). He last worked on August 14, 1970 in the Structural repair shop as a handyman, grade 5, at $3.14 per hour, plus incentive. He was laid off due to a reduction in the work force in his department. On August 14 1970, the employer offered claimant a job in the Coke Ovens as a laborer, grade 2, at $2.885 per hour, without incentive. He refused the job because of the difference in pay and because it was a different department. Claimant filed an additional claim for benefits effective August 17, 1970.

Claimant, J.J.K., age 34, was originally hired on May 18, 1955 as a laborer, grade 2, and was assigned to the Strip Mill. By 1968 he was working in the Car Repair Shop, as an oiler, grade 4. During 1968, 1969 and 1970 he advanced to higher paying skilled jobs in that department such as car repairman A (grade 11) and plate shear operator (grade 8). In the week ending December 20, 1969, he worked for 6 hours as a laborer, grade 2, in this department. Claimant last worked on August 14, 1970 in the Car Repair Shop as a car repairman A, grade 11, at $3.65 per hour, plus incentive. He was laid off due to a reduction in the work force in his department. On August 17, 1970, the employer offered claimant a job as a laborer, grade 2, in the Sintering Plant, at $2.885 per hour, without incentive. He refused the job because of the difference in pay. He filed an original claim for benefits effective August 17, 1970.

Opinion: Our original decision was based on the fact that claimants would have suffered substantial reductions of earnings by accepting the jobs as laborers. However, in Matter of Bus, (37 AD 2d 98, rev'g Appeal Board 161,054) the Court ruled that a percentage reduction in salary or wages cannot alone be controlling and that a refusal of employment as a laborer in an entry-level job was without good cause where the sole basis therefore was that the wages offered were substantially less than those which claimant had earned in his last job as a skilled worker. Accordingly, it is necessary to consider whether or not the claimants herein were reasonably fitted by training and experience for the laborer jobs which were offered to them.

The credible evidence establishes that since the inception of their employment, claimants have worked for the employer in various higher-paying skilled jobs and that during the two years prior to his layoff, each claimant had worked only sporadically and infrequently as a laborer. Accordingly, and in view of the provisions of the collective bargaining agreement dealing with seniority, we conclude that claimants were not reasonably fitted by training and experience for the laborer and sweeper jobs offered to them and that they refused such employment with good cause.

Decision: The initial determinations of the local offices are sustained. The employer's objections are overruled.

The decision of the referee filed January 5, 1971 is modified accordingly, and as so modified, is affirmed.

The decision of the referee filed June 18, 1971, insofar as it pertains to claimant W. A. Jr. is modified accordingly, and as so modified is affirmed. (February 2, 1973).

COMMENTS

  1. Matter of Bus, cited in this decision, is reported at Index 1290A-11 and 1640 B-15 (A-750-1741). It emphasized that in a "bumping" case, the job offer must meet the statutory tests, including those of suitability and prevailing wages.
  2. The instant decision, one of several issued by the Appeal Board in the wake of Matter of Bus, is presented to show the Board's reasoning in determining whether a "bumped" claimant is reasonably fitted by training and experience for the job offered to him in lieu of layoff. It notes that in the two years prior to his layoff each claimant worked almost exclusively in higher-skilled jobs. However, as in other areas of claims adjudication, there does not appear to be any simple formula that can be applied to resolve these cases. Good judgment and common sense must be used, for example, in deciding what is a "substantial period" of work experience.

 



A-750-1759

Index 1150A-5

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 18, 1973

Interpretation Service -Benefit Claims
VOLUNTARY LEAVING
Provoked discharge

Appeal Board Decision 181,391

FALSIFICATION OF EMPLOYMENT APPLICATION

Termination for falsely claiming on an employment application to have experience operating a machine used on the job may be a disqualifying provoked discharge.

Referee decision: The initial determination of the local office holding claimant eligible to receive benefits effective October 30, 1972, without any disqualifying conditions, is sustained.

Appealed by: Employer.

Findings of fact: The claimant was employed by a large cleaning contractor as a porter for about three months to October 23, 1972. His terminal salary was $3.72 an hour. The claimant executed and signed a written application of employment dated July 19, 1972, in which he stated that he had two years experience in operating a floor waxing (buffing) machine. He also stated that he had experience in mopping large areas. The employer hired the claimant and put him to work at several locations where machines were not used. On October t 23, 1972, the employer sent the claimant to a location where he was asked by the supervisor whether he could operate a floor buffing machine. When claimant replied that he was able to operate the machine, the supervisor put him to work. Claimant attempted to operate the machine but he was unable to do so, although the supervisor attempted to instruct him in its use. The claimant was discharged by the employer for being unable to operate the waxing Machine and because of the false statement he made in his employment application.

Opinion: The employer in hiring claimant relied on the statements which claimant had made in his employment application. The credible evidence establishes that claimant was unable to operate the floor waxing machine and had misrepresented his work experience in his employment application. Under these circumstances, we conclude that claimant provoked his discharge, which is tantamount to a voluntary leaving of his employment without good cause.

Decision: The initial determination of the local office is overruled.

The employer's objection is sustained. Claimant is disqualified from receiving benefits effective October 24, 1972 because he voluntarily left his employment without good cause by provoking his discharge.

The decision of the referee is reversed. (May 17, 1973).

COMMENTS

Statements or concealments regarding circumstances prejudicial to the employer's interest must be distinguished from mere "puffing" of experience or qualifications. The former may lead to a disqualification, the latter need-not. Thus:

1. In A.B. 67,034, reported at A-750-1496 an electrician, who was unable to get work because of his age, exaggerated from 3 months to 3 years the length of time he worked for a previous employer. The Appeal Board overruled a disqualification.

2. In A.B. 58,928 (not reported) a class B machinist, anxious to be hired as a class A machinist in a steel plant, added 6 months to the period he worked for his penultimate employer in order to conceal his last job from which he had been discharged as not qualified. The Board sustained a disqualification for misconduct.

One important difference between the two cases described above is that the machinist, unlike the electrician, had previously been discharged because he was not qualified to perform the work in question, and attempted to conceal the fact, an act which was prejudicial to the employer's interests and went beyond mere "puffing." Claimant's actions in the instant case also went beyond mere "puffing," in that he falsely claimed to have a skill which was required in the job for which he was hired.

 



A-750-1764

Index 1180-4

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

July 24, 1973

Interpretation Service -Benefit claims
MISOONDUCT
Union relations

COURT OF APPEALS DECISION

Matter of Felix Rodriguez

STRIKE PROHIBITED BY LAW

Discharge for participating in a work stoppage expressly prohibited by statute is ground for disqualification for misconduct.

DECISION

Several years ago, the court held that participation by employees in a strike in violation of a "no-strike" clause contained in their collective bargaining agreement with their employer did not constitute misconduct within the meaning of subdivision 3 of section 593 of the Unemployment Insurance Law so as to deprive them of unemployment insurance benefits. (Matter of Heitzenrater [Hooker Chem. Corp.] 19 N Y 2d 1.) This appeal here by our leave, calls upon us to decide whether the same result should follow where employees engage in a strike or work stoppage which has been declared "unlawful" by statute (Labor Law §713). In our view, it should not.

The facts are quickly told. The employer, appellant P Hospital, is a voluntary non-profit making hospital. The claimant-respondent, Felix Rodriguez, was employed as a worker in the hospital's food service department for some five months. About 12 o'clock on January 9, 1971, when the noon-day meal was being prepared and served to hospital patients, the claimant and other workers on duty in the hospital's main kitchen participated in a mass work stoppage to protest the disciplinary action taken against two other employees. Although most of them returned to their jobs shortly after the stoppage began, a group of more than 20, including Rodriguez, continued to refuse to work. He also refused, despite orders from hospital officials, to leave the premises and, indeed, did not depart until approximately 7 p.m. The hospital thereupon discharged the claimant and other participants in the work stoppage.

Rodriguez filed a claim for unemployment insurance benefits and was found eligible. The hospital objected and on its application, a hearing was conducted before a referee. Although he found that the claimant engaged in a "mass work stoppage," he concluded that it "must be considered an industrial controversy"; accordingly, he overruled the employer's objection and that the claimant was entitled to unemployment benefits. The Unemployment Insurance Appeal Board affirmed that decision citing the Heitzenrater case (19 NY 2d 1, supra)- the Appellate Division unanimously affirmed the Board's determination (39 A D 2d 1015) and, as noted, the appeal is before us by our permission.

It has long been the policy of the courts of this State to prohibit and enjoin concerted activities such as strikes work stoppages and picketing directed against non-profit making hospitals. (See, e.g., Jewish Hospital of Brooklyn v. John Doe," 252 AV. Div. 581; Beth-El. Hospital v Davis, 34 Misc 2d 1045 Society of New York Hospital v.Hanson 185 Misc. 937). Recognizing this long standing policy, the Legislature, when it enlarged the coverage of the New York State Labor Relations Act in 1963 to include employees of non-profit making hospitals and residential care centers (L. 1963, ch. 515, §4, amdg. Labor Law, §715, subd. [3] ), it also amended section 713 of that statute (Labor Law §713) to expressly confirm the prohibition against all forms of strikes and work stoppages at such hospitals (L. 1963, ch. 515, §3). After reciting that "[n]othing in this article shall be construed...to interfere with, impede or diminish in any way the right of employees to strike or engage in other lawful, concerted activities," section 713, as amended goes on to provide, in part, that:

"it shall continue to be unlawful for the employees of a non-profit making hospital or residential care center, or their representatives, or any other persons to engage in or to induce or encourage, or to attempt to engage in or to induce or encourage any strike, work stoppage, slowdown or withholding of goods or services by such employees or other persons at such hospital or residential care center."

The primary purpose of the court-developed policy thus codified was to protect the public, and particularly hospital patients, from the potentially disastrous consequences of such activity. It is noteworthy that the Legislature did not merely prohibit work stoppages; it also established alternative peaceful methods for resolving those disputes for instance, by compulsory arbitration (Labor Law, §716; See, also, Labor Law, §703-706) and, by so doing, removed justification for the conduct proscribed.

Since the claimant participated in a work stoppage which was expressly absolutely prohibited by section 713, it follows that in contradistinction to the situation in the Heitzenrater case (19 NY 2d 1, supra) he engaged in legislatively defined "misconduct in connection with his employment" Labor Law, §593, subd. [3]. In Heitzenrater, we decided that mere participation in a strike in violation of a no-strike clause in a private collective bargaining agreement did not constitute such "misconduct", within the sense of sect:593 as to deprive them of unemployment insurance benefits, primarily because, to hold otherwise, would have required those administering the Unemployment Insurance Law -the Division of Employment to resolve complicated issues of labor relations properly reserved to other agencies. Thus, in the course of our opinion in that case (19 NY 2d, at p. 7) we declared:

"Actually, 'fault' or 'misconduct' is not a meaningful concept to apply to a work stoppage which results when the parties in negotiating a collective bargaining agreement, cannot reach an understanding as to wages, hours or working conditions. If there be any 'fault', it is often attributable to both parties. Furthermore, even in those disputes which are precipitated by the apparent breach of an existing agreement, the determination of fault or misconduct involves questions of labor relations that are frequently complicated and recondite. It would have been decidedly "unwise to vest in officials of a social welfare agency -like those administering the Unemployment Insurance Law -the power to decide such matters. They are best left to agencies especially qualified to deal with them."

In cases such as the one before us, however, the absolute nature of the prohibition insures that no "complicated " or "recondite" questions of labor relations law can arise. The simple fact is that the Legislature itself resolved all such issues by explicitly proscribing and expressly stamping as unlawful strikes and work stoppages by employees of non-profit making hospitals or, for that matter, by public employees (Civil Service Law [Taylor Law], §210, subd. [1]). It would constitute a strange rule of statutory construction to hold that one provision of the Labor Law should be interpreted to require payment of benefits to an individual who has been discharged for engaging in conduct in indisputable violation of another, and later enacted, provision of that same statute. (See, e.g. East End Trust Co. v. Otten, 255 N.Y. 283, 286-287. Gwynne v. Board of Education, 259 N. Y. 191, 197.)

The fact and legal issues in this case are clear and uncomplicated, and the statutory scheme, far from requiring a policy of "governmental neutrality" between contending private parties (Mtr. of Heitzenrater [Hooker Chemical Corp.], 19 NY 2d 1, 7, supra; Matter of Ferrara [Catherwood]; 10 NY 2d 1, 8), commits the State to an active role in prohibiting a threatened injury to the public interest when the conduct engaged in has been expressly declared "unlawful" by the Legislature. A basic public policy of the State -the prevention of disruption of essential services -would be defeated and violated were we here to sanction the payment of unemployment benefits.

The order appealed from should be reversed, without costs, the determination of the Unemployment Insurance Appeals Board in favor of the claimant annulled and the employer's objection to the claimant's eligibility for unemployment benefits sustained. (July 5. 1973)

COMMENTS

  1. Matter of Heitzenrater, cited in this decision, is reported at A-750-1594. It concerned a work stoppage in violation of a no-strike clause in a collective-bargaining agreement. The Court distinguished that situation from conditions, as in the instant case, where the work stoppage has been "expressly declared 'unlawful' by the Legislature. "
  2. A misconduct disqualification in accordance with the instant rule would be effective beginning with the actual date of discharge, since the employer-employee relationship is not terminated by the controversy. (See A-750-1554).
  3. The Court decision also implies that while there is such "unlawful" stoppage of work benefits are not payable to workers involved in that work stoppage under any circumstance, on the grounds of a basic public policy superseding the provisions or Section 592.1.

 



A-750-1765

Index 1460C-2

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 10, 1973

Interpretation Service -Benefit Claims
TOTAL OR PARTIAL UNEMPLOYMENT
Discharge-related payments

Appeal Bard Decision 183,096

SALARY CONTINUATION UNTIL EFFECTIVE DATE OF DISCHARGE

If a claimant is discharged, with the effective date of the discharge set in the future, the employer-employee relationship continues and the claimant is not totally unemployed during the intervening period for which wage payments and fringe benefits continue, even though he is not obligated to render any services in that period.

Referee decision: The initial determination of the local office holding claimant eligible to receive benefits effective November 6. 1972 without any disqualifying conditions is modified to hold claimant ineligible to receive benefits effective November 26 through December 4, 1972 and from December 28 through December 31, 1972 because he was not available for employment.

Appealed by: Employer and claimant.

Findings of fact: Claimant, an assistant manager, worked for the employer for several years. On November 3, 1972 he was informed that effective December 31, 1972 his employment would be terminated due to reorganization. Claimant was also informed that he did not have to render any further services to the employer and was advised to seek other employment either through a private placement bureau, to which he was referred by the employer, or through his own efforts. From November 6 through December 31, 1972 claimant received his regular salary and his coverage by the employer for major medical insurance, profit sharing, life insurance, hospitalization and all other fringe benefits was continued. Claimant's wife gave birth to a child on November 26, 1972 and remained hospitalized until November 30, 1972. Claimant's wife was ill thereafter and did not fully recover her health until December 4, 1972. Claimant obtained new employment late in December 1972 and started in business position on January 2, 1973. Claimant could have begun his new employment on December 28, 1972, but because he was receiving salary from his last employer through December 31, 1972 he chose to begin his new employment on January 2, 1973.

Opinion: The credible evidence establishes that throughout the period from November 6, through December 31, 1972, the employer-employee relationship continued; that claimant received his regular salary and that he continued under coverage by the employer for medical insurance, profit sharing, life insurance, hospitalization and all other fringe benefits. Accordingly, we conclude that claimant was not totally unemployed during the period in question and that he is, therefore, ineligible for benefits under the Law. In view thereof, the issue of claimant's availability for employment from November 26 through December 4, 1972 and from December 28 through December 31, 1972 becomes academic and need not be decided.

Decision The initial determination of the local office is overruled.

The employer's objection that claimant is ineligible to receive benefits effective November 6 through December 31, 1972 because he was not totally unemployed is sustained.

The decision of the referee is modified in accordance with the foregoing, and as so modified is affirmed. (July 23, 1973).

COMMENTS

This case should be distinguished from one in which, after the effective date of discharge, claimant is kept "on the payroll" as a bookkeeping device to receive payment in the nature of separation wages. (See A-750-1342).

 



A-750-1767

Index 840-4

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

January 23, 1974

Interpretation Service -Benefit Claims
CLAIMS AND REPORTING
Due diligence

APPELLATE DIVISION DECISION
Matter of Kathryn M. Howard

FAILURE TO REPORT: ITINERANT OFFICE

A claimant in an itinerant office may not receive credit for any period of unemployment from the day on which an unexcused failure to report occurs, including intervening weekdays on which the office is closed, until he is again entitled to credit by subsequent compliance with reporting requirements.

DECISION

This is an appeal from a resettled decision of the Unemployment Insurance Appeal Board, filed April 28, 1972, which modified the initial determination of the Industrial Commissioner, holding claimant ineligible to receive benefits effective May 5 through May 9, 1971 because she did not comply with reporting requirements, and determined that claimant was ineligible to receive benefits effective May 5, 1971 only.

Claimant, who last worked for C.M. of Ellenville, New York, filed for benefits effective April 5, 1971 and received three benefit payments through May 2, 1971. She lived in the vicinity of said village and was assigned Wednesday as her regular day to report to the itinerant unemployment insurance office at said place, which point was open only on Mondays and Wednesdays. Claimant failed to report to said office on Wednesday, May 5, 1971 because she went with a friend who was working in Poughkeepsie to look for employment, although she didn't have any appointments for job interviews. She did report to the Ellenville office on Monday, May 10, 1971, and in a statement dated that day recited that she had made calls for work from a house at Poughkeepsie but did not remember the names of the places called. At a hearing thereafter held, she indicated places to which she had phoned.

The Industrial Commissioner is directed to administer the Unemployment Insurance Law and is empowered to promulgate necessary rules and regulations to properly administer the allowance of unemployment insurance benefits (Labor Law, §530, subd. 1; Matter of Ianni (Catherwood), 15 A D 2d 593). A claimant is entitled to accumulate effective days for the purpose of benefit rights only if he has complied with the provisions of said law regarding, among other things, his registration as totally unemployed and the reporting of his subsequent employment and unemployment (Labor Law, §590, subd. 1) and no effective days shall be counted except those as to which notification has been given in a manner prescribed by the commissioner (subd. 8). He is required to register as totally unemployed at a local State employment office serving the area in which he was last employed or in which he resides in accordance with regulations prescribed by the commissioner and, after so registering, to report for work at the same office or give notice of the continuance of his unemployment as often and in such manner as prescribed by the Commissioner (Labor Law, §596, subd. 2).

Under section 473.2 of the regulations of the Industrial Commissioner, a claimant is required to report in person at the office or itinerant point where his claim for benefits is on file at such days and hours as may be required by such office ( subd. 'b' ), and may not receive credit for any period of unemployment from the day on which a failure to report occurred until he next reports or until the beginning of the week in accordance with section 473.1 of said regulations, whichever is earlier (subd. 'd'), However, the failure to so report in compliance with section 473.2 may be excused by the Commissioner upon proper presentation of facts and circumstances if it is shown to his satisfaction that they constitute good cause (subd.'g')

Reporting in accordance with the provisions of the Labor Law and the regulations of the Industrial Commissioner is a necessary prerequisite to eligibility for benefits (cf. Matter of Rescigno [Catherwood], 24 A D 2d 658), and we may not disturb the board's finding that claimant did not have good cause for her failure to report on May 5, 1971, since that finding is supported by substantial evidence (Matter of Nixon [Catherwood] 29 AD 2d 895: cf, Matter of Iacone [Catherwood], 34 AD 590 ).

A regulation, such as 12 NYCRR 473.2, appears necessary, reasonable and valid in view of the vast number of claims presented and processed and the effective administration of the complexities of the act require regulated reporting such as the one under consideration (Matter of Nixon [Catherwood], supra). It is within an area of administration of the Commissioner which the Appeal Board is bound to accept since the Commissioner, and not the Board, has been given the legislative delegation (cf. Matter of Marsh [Catherwood], 17 A D 2d 527, 531, affd. 13 NY2d 235). In Matter of Omolino (Catherwood) (11 A D 2d 553), where claimant was instructed to report on a Friday, forgot to so report but returned the following Monday, this court reversed the appeal board, upheld the regulation and stated that claimant's failure to report on the Friday in question deprived him of benefits for the otherwise effective days of that week. In Matter of McGowan (Murphy) (266 App. Div. 933), where claimant became unemployed on December 14, 1942 but did not file until January 27, 1943, the court reversed the board and stated that it was without authority to predate claimant's application to the December date. Thus, the instant regulation of the Commissioner's within the discretion granted by the Legislature and should not have been nullified or altered by the Board (cf. Matter of Moorehead [Catherwood] 24 AD 2d 6663; 62 N.Y. Jur., Unemployment Insurance, §139, p. 136)

The decision should be reversed, without costs, am the matter remitted for further proceedings not inconsistent herewith.

DISSENTING OPINION

There is no dispute as to the facts:

The board's decision attempts to equitably adjust the rights of claimants who report to a permanent facility office and an itinerant office. Here, the claimant did not report on the day assigned to her, but did report on a day when the itinerant office was next opened. The board stated :

We find that there is no adequate explanation for the difference in treatment afforded claimants who report to itinerant points as between original claims, additional claims and reporting requirements.

Since it fails to take into consideration the considerable disadvantage in the service afforded to claimants who are required to report to itinerant points, we conclude that regulation 41 (d) is unreasonable and grossly unfair when it is interpreted so as to penalize a claimant who fails to report to an itinerant point, as required, on a day when such office is open and rules such claimant to be ineligible to receive benefits until the next day he reports, even though the itinerant office is not open in the interim period.

While reporting requirements are reasonable, the penalty for failure to report is discriminatory and should be construed so as not to include people reporting to an itinerant office which is not open on a Monday through Friday basis.

The board's decision to disqualify the claimant effective May 5, 1971 only should be affirmed. (November 29, 1973).

COMMENTS

1. This decision affirms the necessity, reasonableness and validity of Regulation 41d, am its application by the Industrial Commissioner to claimants reporting to itinerant offices.

2. The principle has already been established that a claimant whose unexcused failure to report occurs on Friday loses credit also for Saturday and Sunday; and that a claimant whose unexcused failure to report occurs on the day before a holiday which causes the local office to be closed, loses credit also for such holiday. (A-750-1425).

 



A-750-1769

Index 1275A-5

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

March 11, 1974

Interpretation Service -Benefit Claims
REFUSAL OF EMPLOYMENT
Experience and training

Appeal Board Decision 185,963

EXECUTIVE SECRETARY

An executive secretary is not reasonably fitted by training and experience for work as secretary and, therefore, generally has good cause to refuse such employment. (See "Comments").

Referee decision: The initial determination of the local office disqualifying claimant from receiving benefits effective March 1, 1973 because, without good cause, she refused employment for which she is reasonably fitted by training and experience, is sustained.

Appealed by: Claimant.

Findings of fact: Claimant, an executive secretary, was employed as such through October 13, 1972 when her employment ended under non-disqualifying conditions. For the past 18 years she has been employed as an executive secretary to various high ranking corporate officers in industries and is currently employed as the executive secretary to the vice-president of a large international trading company. The employment service had classified her as an executive secretary.

The claimant filed an valid original claim. effective February 19, 1973. On March 1, 1973, she was offered five referrals to secretarial positions, she refused all of these referrals because they were merely secretarial in nature. She was fitted for employment as an executive secretary based on her training and experience.

Opinion: The credible evidence establishes that claimant possesses extensive experience as an executive secretary to the senior executive officers of large concerns and is so classified. It is significant that she is currently so employed. Accordingly. we conclude that the claimant had good cause to refuse the referrals to employment as a secretary because she was not fitted for these by her training and experience.

Decision: The initial determination of the local office is overruled. The decision of the referee is reversed. (October 10,1973).

COMMENTS

  1. "Executive secretary" is a new Employment Service occupational classification which has recently received Federal approval. It involves specialized duties and responsibilities which place it at a higher skill level than that of secretary.
  2. Although not indicated in the Board's decision, two of the five referrals to positions as secretary offered to claimant met the prevailing wage for executive secretary. The instant decision, therefore, represents an exception to the principle of Matter of Doyle wherein a stenographer who refused an offer of employment as a clerk-typist at a salary satisfying the prevailing wages for either clerk-typist or stenographer, was held to have refused employment without good cause. (see A-750-972).

 


A-750-1772

Index 1460D-4

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 26, 1974

Interpretation Service -Benefit Claims
TOTAL UNEMPLOYMENT
Back pay awards

APPELLATE DIVISION DECISION
Matter of Minnie Cohen, 44 AD 2nd 286

AWARD REDUCED BY UNEMPLOYMENT BENEFITS

An award in settlement of a claim for wages lost because of wrongful discharge, which takes into account the amount of Unemployment insurance benefits received by the claimant during the period, does not affect his rights to such benefits.

DECISION

This is an appeal from a decision of the Unemployment Insurance Appeal Board, filed May 10, 1973.

Claimant, a medical secretary employed by a hospital five days a week, was discharged on March 2, 1972 when her employer discovered she was working concurrently at another job. She continued in her second job until March 10, 1972 and thereafter filed for and received unemployment insurance benefits from that point until April 25, 1972 when she commenced new employment at another location.

Her discharge from the hospital was protested by her union and, upon submission of the controversy to the New York. State Board of mediation, an arbitrator ruling in her favor that she was not discharged for just cause directed that she "be reinstated to her job without loss of seniority and other rights under the contract. The Employer shall pay to Minnie Cohen $717.50 in full settlement of her claim for wages lost because of the wrongful discharge." The calculation of the sum of $717.50 was based upon earnings she would have received during the period of lost employment from the time of discharge by the employer herein, less the amount earned from the second employer and the unemployment insurance benefits obtained.

In seeking recovery of the benefits paid to claimant, the appellant Industrial Commissioner contends her award is for back pay. Thus claimant was not "totally unemployed" during the period she received them and such benefits should be recoverable as within the definition of "retroactive payment of remuneration." (Labor Law, § 597, subd. 4.)

The Unemployment insurance Appeal Board disagreed and held the payment was not "remuneration" as defined by subdivision 1 of section 517 of the Labor Law since the arbitrator's award determined by reducing her earnings by the amount of unemployment received together with other income and, thus, not within the contemplation of the statute.

The award of the arbitrator was, in fact, a determination of the measure of damages for her wrongful discharge. The amount of the award was calculated by reducing the total amount she would have earned from the hospital by the amount of income obtained from collateral sources. In other words, the arbitrator held she was bound to mitigate her damages. Accordingly claimant was totally unemployed during the period under review and there was no overpayment.

The decision should be affirmed with costs. (April 25,1974)

COMMENTS

1. This decision introduces a new element in cases involving an award for wrongful discharge. It concludes that such an award, if the amount is reduced by the unemployment insurance benefits received for the period in question, does not render the claimant employed and is therefore not "remuneration" so that the provisions of Section 597, regarding recovery of benefits upon a retroactive payment of remuneration, are not applicable.

2. An award of "back-pay" which is reduced only by earnings in other employment should, as in the past, be considered to be a retroactive payment of remuneration within the purview of Section 597.

3. The principle of the instant decision should be distinguished from the rule A-750-1125 concerning a "back-pay" award which does not take into account any unemployment benefits received but still falls short of full restoration of wages lost. In such a case, claimant should be held "not totally unemployed," but for only part of the period of his unemployment following discharge, determined by measuring the amount of the award against his customary wage rate.

 



A-75O-1773

Index 725.13b
1150C.6(b)

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

July 15, 1974

Interpretation Service -Benefit Claims
MISCONDUCT
Theft and mishandling of funds
AVAILABILITY AND CAPABILITY
Health

Appeal Board Decision 191,103

DISCHARGE FOR PILFERING

  1. Discharge for pilfering is not disqualifying when such conduct stems from a psychiatric disorder manifested by a compulsion to steal.
  2. A claimant discharged under such circumstances is incapable of employment in the absence of medical evidence that he is no longer suffering from the psychiatric disorder.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective September 28, 1973, because he lost his employment through misconduct in connection herewith, is overruled.

Appealed by: Industrial Commissioner.

Findings of fact: The claimant, an electrical technician, worked for a public utility for about 23 years through September 27, 1973. He has a psychiatric disorder manifested, in part, by his compulsion to take from others objects for which he had no personal use. In the last two years he was arrested four times for petty larcenies. On September 27, 1973 he took from the employer’s premises, without permission, two rolls of wire, valued at about $140, for the use and benefit of a friend. When accused, he admitted that he had taken the wire and promptly retrieved the two rolls. The claimant was discharged because of this act. After his discharge, he first sought psychiatric attention for his condition and is now undergoing such treatment. He filed an original claim for benefits on October 9, 1973.

Opinion: The credible evidence establishes that the claimant was discharged for committing an act over which he had no control. When we have heretofore considered conduct leading to disqualification either for misconduct or a provoked discharge, we have sustained such a disqualification where claimant committed a conscious act of free will. On the other hand, when the claimant’s conduct stemmed from an illness, it has been held not to result in such disqualifications (Appeal Board 192,188; 103,193). In the instant case, the claimant was suffering from a psychiatric disorder which by its nature precludes the conclusion that his act was that of a person freely exercising his will. In the absence of any evidence that the claimant’s behavior was deliberate, willful or consciously wanton or negligent, and in view of the persuasive medical evidence of claimant’s psychiatric disorder at the time of the acts here in issue, we conclude that the claimant‘s acts did not, under the Unemployment Insurance Law constitute misconduct nor did he provoke his discharge.

However, since it appears that claimant had not sought medical attention for his psychiatric disorder until after he was discharged and that he filed his claim for benefits within two weeks of his discharge, and in the absence of medical evidence to the contrary, we conclude that at the time he filed his claim he was still suffering from the psychiatric disorder and was, therefore, incapable of employment.

Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective September 28, 1973 because he lost his employment through misconduct in connection therewith is modified to hold claimant ineligible to receive benefits effective October 9, 1973 because he was not capable of employment, and as so modified, is sustained.

The decision of the referee is modified accordingly, and as so modified, is affirmed. (April 26, 1974)

 



A-750-1775

Index 1105A-4
1605E-1

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

September 12,1974

Interpretation Service -Benefit Claims
MISCONDUCT
General
VOLUNTARY LEAVING
General

COURT OF APPEALS DECISION
Matter of Leola James, 34 NY 2nd 491

"PROVOKED DISCHARGE" CONCEPT VOIDED

There is no statutory authority for a disqualification on the grounds of a "provoked discharge" and, therefore, if an employer decides to discharge a claimant because of an act or omission which is detrimental to his interests, there can only be a misconduct disqualification.

DECISION

These are three appeals argued together, each of the three claimants raising objection to the administrative application of the so called doctrine of voluntary separation from employment by provoked discharge. Each claimant, at one level or another of the procedure in the Division of Unemployment Insurance, was denied insurance benefits on the purported ground that each had provoked her discharge and had therefore terminated her employment voluntarily. In each case the Appellate Division affirmed the decision of the Unemployment Insurance Appeal Board and the claimants appeal by leave of this court.

There should be an affirmance in each of the three cases. Although the doctrine of provoked discharge has been improperly extended and applied by the Division, on the findings of fact in each case, claimant by her misconduct had rendered herself and had been held by the Division to be ineligible for unemployment insurance benefits until she first qualified herself by reemployment as provided in the applicable statute.

The Unemployment Insurance Law (Labor Law, art. 18) provides, inter alia, that for a limited period measured by subsequent employment of not less than three days in each of four weeks or earnings of at least $200, one is ineligible to receive benefits, if the employee voluntarily left his employment or if the employee had been discharged for misconduct in connection with his employment (Labor Law, §593).

At one time there had been a difference in the disqualification periods for the two kinds of separation from employment noted above, a longer period or disqualification being imposed for misconduct discharges. Since 1958 the periods have been the same (L. 1958, ch. 387, §15, amdg. § 593 of Labor Law).

Be that as it may, the doctrine of provoked discharge had its origin not in the statute but in Matter of Malaspina [Corsi] (309 N.Y. 413) and the special kind of discharge there involved. An employee was discharged by his employer because the employee had refused to join the union in an agency shop under a collective bargaining agreement. The act of the employee in refusing to join the union was therefore voluntary. The act of the employer was compelled by its obligation under the collective agreement. It was held that under such circumstances the employee, who had known of the requirement before employment and being fully aware of the inevitable consequences of his refusal, had voluntarily left his employment by provoking his discharge. Arguably, this was a legitimate and essential gloss on the statute to fill a gap. It did not purport to, nor might it, create a third and distinct category for determining temporary ineligibility for unemployment insurance benefits (see, however. cases cited by respondent, which appear to have tolerated the unauthorized expansion or the doctrine: Matter of Gladstone [Catherwood], 30 NY 2d 576; Matter of Edwards [Levine], 31 NY 2d 643, den. lv., 39 AD2d 644; Matter of Schnee [Levine], 31 NY 2d 642, den. lv., 39 A D 2d 644; Matter of Goloty [Catherwood], 29 N Y 2d 489, den. lv., 39 A D 2d 1022; Matter of Morales [Catherwood], 28 NY 2d 485, den. lv., 36 A D 2d 579; Matter of Kreager [Catherwood], 27 N Y 2d 737, appeal dsmd.).

It is suggested by respondent that administrative extension of the doctrine beyond the situation where the employee's voluntary acts result in the employer's "involuntary discharge" of the employee arose from two conditioning circumstances. The first was the pre-1958 difference in eligibility periods between voluntary separation and misconduct. The second was the reluctance to stigmatize a discharged employee with misconduct. In short, the doctrine for either or both of these reasons was extended to accomplish on the one hand a benevolent purpose, and on the other a euphemistic purpose, perhaps understandable, but logically mischievous. Indeed, claimants argue, with some cogency, that the inappropriate extension of the doctrine has in effect introduced, without statutory authority, an added, distinct ground for disqualification, and to make matters worse, susceptible of arbitrary application.

The criticism by claimants is sound but the result of invoking it in the cases at hand does not entitle them to relief. In each instance, the claimant was guilty of misconduct in connection with her employment, and the findings of fact, apart from the characterization of the conclusion, resulted properly in temporary ineligibility. In two of the cases, the employee was advised directly that continued misconduct would result in sanctions being imposed, in one case by discharge, and in the other by treating the misconduct as insubordination, a polite and euphemistic way of advising the employee that she was inviting discharge. In the third case, it is immaterial whether the employee's conduct was characterized as misconduct or as a voluntary separation: after sustaining injuries, she did not return to her employment and, although being requested to advise her employer when she would return, she did not.

Consequently, it is concluded that there should be an affirmance in each of the cases for the reasons above stated, but with the urgent suggestion that the Division, if its determinations are to survive judicial review, recast its thinking, regulations, and applications of the standards under the statute. Otherwise, as claimants argue, it may happen, although it did not in the instant cases, that persons are denied eligibility because discharged but only for valid cause which, however, could neither be characterized as misconduct nor voluntary separation. There is no question that "valid cause" for discharge must rise to the level of misconduct before an employee becomes ineligible to receive benefits. This, the Division's regulations unequivocally expressed, in classifying, among other things, inefficiency, negligence, and bad judgment, as valid causes for discharge and which do not render the employee ineligible.

Among other jurisdictions, there has always been disagreement whether one who effects his own discharge by indirection my be deemed to abandon his employment "voluntarily". The doctrine is a fiction in most cases, the real cause of discharge being misconduct. Some jurisdictions refuse to recognize the category of "constructive voluntary leaving" (see 81 C.J.S., Social Security and Public Welfare, §164, at p. 250; see, also, Ann., Unemployment Compensation -Union Acts; 90 ALR 2d 8:35, 837). It would seem that the doctrine arose largely within the context of union activities and collective bargaining agreements, where special policy considerations were at work. Certainly those special concerns account, in large measure, for the Malaspina (supra) result (see Ann., Unemployment Compensation -- Union Acts, op. cit., supra). For the large majority of cases, considerations of eligibility under the rubric of misconduct leads to more sensible analysis and resolution. More important, the statute requires it.

In the light of the above analysis, it is timely to turn to the particular acts and findings in each or the three cases.

Claimant James was employed as a counter girl in a coffee shop. After repeatedly reporting for work under the influence of alcohol she was told that unless that ceased she would be discharged. On her last day of employment she reported for work under the influence or alcohol, and was discharged at the end of the working day. An initial determination was made that she had been discharged for misconduct or in the alternative that she had provoked her discharge. The referee and the Appeal Board without changing any finding of fact concluded that she had voluntarily left her employment by provoking her discharge. The result of ineligibility was compelled once the facts were found as they were. It would serve no useful purpose to remand the claim to the Division to reassess the conclusion. The net effect would be only to substitute the correct category for the misapplied doctrine or provoked discharge.

Claimant Guerrasio was a restaurant cashier and hat check girl. Sustaining injuries in a motorcycle accident, she was away from her employment with initial advice to her employer. The referee found that she was not ineligible because her physical condition had prevented resumption of employment. The Appeal Board found that claimant's sister had advised the employer of the accident and her expected disability for one week. Claimant was not heard from until some three weeks after the accident, despite unanswered telephone calls to her. Just before the summer, her father telephoned the employer, advised that she was with relatives upstate, and that she would like to return to work after the summer. The restaurant would be closed during the summer. The Appeal Board held that claimant provoked her discharge. In fact she had, according to the Board's finding, voluntarily terminated her employment for the time being, or, in the alternative, was guilty of misconduct in fixing her own periods of employment and in not giving notice of when she would be able to return to work. Again, it would serve no useful purpose to remand the claim to the Division to reassess the conclusion, only to eliminate the inappropriate language of provoked discharge which should be limited to "involuntary" discharge by the employer due to "voluntary" act of the employee.

Claimant Morrison's case is the most troublesome of the three. She was employed as a social case worker in a mental health clinic, and became involved in a tendentious exchange. When a superior asked for her to explain the disposition in a particular case, she, according to the superior, did not give a satisfactory explanation. She was called to the director's office were the superior was also present. Sensing the confrontation she left the director's office, although first warned by the director that her leaving would be considered an act of insubordination. She was later discharged. The referee and Appeal Board found the facts as above and held that she had provoked her discharge. Of course, misconduct could always provoke discharge but that is not what the doctrine covers. For that matter "valid cause", to the extent dependent on voluntary acts, could be said to "provoke discharge". This claim demonstrates best the misuse of the provoked discharge doctrine and the dangers of misuse. At the same time, the findings unequivocally point to misconduct and the Division so found or else it could not have verbalized as applicable the provoked discharge doctrine. Hence, as with the other cases, no useful purpose would be served in remanding the claim to the Division to reassess the findings or the result.

In summary, each of the cases demonstrate the inappropriateness of the provoked discharge doctrine, where the employer may or may not choose to discharge the unsatisfactory employee. Matter of Malaspina [Corsi] (309 N.Y. 413, supra) should be confined to the instance of the "involuntary" discharge by an employer for cause flowing from the "voluntary" act or acts of the employee. Causes for discharge which do not attain the level of misconduct may not be used to render claimants ineligible for benefits. Voluntary separation should, except perhaps in the unusual situation of the Malaspina case, be confined to the giving up of employment, permanently or temporarily without cause or justification.*

* Attorneys for claimants are commended, despite the technical outcome of the appeals, for their efforts on these appeals and for the benefit conferred in helping clarify the standards for eligibility for unemployment insurance benefits. (July 11,1974).

Accordingly, the orders of the Appellate Division should be affirmed, without costs.

COMMENTS

  1. This decision virtually outlaws the concept of voluntary leaving by provoked discharge. The only exception would be instances where the voluntary act of an employee compels his employer to discharge him. The Court characterized such a separation as an "involuntary discharge" and cited as an example Matter of Malaspina ( A-750-1286, revised). In that case, claimant's loss of employment was compelled by his failure to join a union as required by the collective bargaining agreement and was held to be a voluntary leaving without good cause. The employer had no choice.

Another example would be refusal to fill out a personnel security questionnaire required by the Federal Department of Defense and which is a condition to continuance in employment. Still another example would be loss of employment as a truck driver or cab driver by claimant who allowed his driver's license to lapse. In all of these cases, there is a voluntary leaving of employment. (However, if a driver's license was cancelled because of a violation of law, a misconduct disqualification would be in order.)

  1. At the same time, the Court has broadened the concept of "misconduct" so that in practically all cases where in the past a provoked discharge disqualification was imposed, a disqualification for misconduct may be substituted. This includes any case where claimant was discharged for an act or omission, on or off the job, which was detrimental to his employer's interests. The restrictive meaning which previously had been applied to the term "misconduct" must be disregarded. Former definitions of this term in the Interpretation Service or elsewhere are no longer valid.
  2. The term "provoked discharge" or its equivalent should be avoided in all cases, and should not appear anywhere on the Notice of Determination.

 



A-750-1776

Index No. 1105 D-3

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

September 27, 1974

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Termination of disqualification

COURT OF APPEALS DECISION

Matter of Clyde Slade

DISCIPLINARY SUSPENSION FROM EMPLOYMENT

A disqualification for misconduct may, under appropriate circumstances, be imposed upon disciplinary suspension from employment, but may not extend beyond the date set for reinstatement.

APPELLATE DIVISION DECISION

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 27, 1972, which determined that claimant was ineligible from receiving benefits effective October 12, 1971 on the ground that his loss of employment was due to misconduct in connection therewith.

Claimant, an auto mechanic employed by a bakery, was discharged on October 11, 1971 when he was seen leaving the plant with two loaves of bread. There had been a number of thefts in the plant, and the employer had posted signs to the effect that anyone caught stealing would be discharged forthwith. Claimant protested his dismissal and, pursuant to his union’s collective bargaining agreement, the issue was submitted to binding arbitration.

On February 14, 1972 the State Mediation Board determined that the penalty of discharge was too severe, and restored him to his position without loss of seniority rights imposing a disciplinary suspension with total loss of pay from October 11,1971 to the date of reinstatement, which was set at five days after receipt of the determination. When claimant applied for reinstatement, there was no work available since the company was going out of business.

After a hearing, the Referee determined that claimant’s loss of employment was due to misconduct in connection therewith. On appeal the board affirmed the Referee’s determination. On this appeal, claimant contends that this determination is erroneous in that the Referee and the board failed to properly consider the effect of the arbitration award, which set aside claimant’s discharge. The board was required to consider the award of the State Mediation Board, which was binding upon both the employer and employee. This award in effect abrogated claimant’s discharge. Thus, as a matter of law, claimant was never discharged, but instead was suspended. Since claimant, as a matter of law, was not discharged by the employer, the board could not predicate its determination upon a loss of employment through misconduct in connection therewith. Upon claimant’s reinstatement, there being no work available, he became unemployed and eligible for benefits. There is, therefore, no substantial evidence on the present record to support the board’s determination.

Decision reversed, and matter remitted for further proceedings not inconsistent herewith, without costs.

COURT OF APPEALS DECISION

Order affirmed, with costs, on the memorandum at the Appellate Division. (July 10, 1974)

COMMENTS

  1. This decision represents an exception to the statutory requirement that a disqualification for misconduct terminates only when a claimant "has subsequently worked in employment on not less than three days in each of four weeks or earned remuneration of at least two hundred dollars". (Section 593.3)
  2. A claimant who refrained from filing for benefits until after the reinstatement date of a fixed-period disciplinary suspension would not be subject to disqualification based on the suspension. The Court’s ruling thus has the effect of eliminating the accident of filing as a factor in determining eligibility in such cases.

A-750-1777

Index No. 1110-1

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

January 6, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS          
MISCONDUCT
Absence and lateness

Appeal Board Decision 197,674

EXCESSIVE ABSENCE

Absence for a non-compelling reason after the employer has indicated its displeasure with an excessive absence record, is misconduct.

Referee Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective May 22, 1974 because she voluntarily left her employment without good cause by provoking her discharge, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: The claimant, age 21, worked as a general office worker for a research service company for about twelve weeks through May 21, 1974. During the short period of her employment she was absent a total of eight times. Most of her absences occurred as a result of preparation for her forthcoming marriage. The employer made known to her its displeasure with her repeated absence. On May 21, 1974 the claimant was absent from work because she was waiting with her family at a hospital while her sister was giving birth. She was discharged because of her excessive absences.

Opinion: The credible evidence establishes that the claimant was absent from work on eight separate occasions within a period of about twelve weeks. In the total absence of medical evidence and in view of the claimant’s earlier statement to the local office wherein she explained her absences entirely on the basis of preparations for her marriage we reject the claimant’s contention that her absences were due to illness, and we find that her absences were for non-compelling reasons. The claimant’s conduct amounted to abuse of her employer’s interest which gives the employer the right to expect that, except for compelling reasons, an employee will report to work regularly. Under the circumstances we conclude that the claimant lost her employment through misconduct in connection therewith.

Decision: The initial determination of the local office is modified to disqualify the claimant from receiving benefits effective May 22, 1974 because she lost her employment through misconduct in connection therewith.

The decision of the referee is reversed. (October 2, 1974)


A-750-1778

Index No. 1110-2

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

January 9, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Absence and lateness

Appeal Board Decision 195,977

FAILURE TO NOTIFY WHEN ABSENT

Failure without good reason in violation of employer’s rule to contact employer on the first day of absence after having been warned to do so, is misconduct.

Referee Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective March 23, 1974 because he voluntarily left his employment without good cause by provoking his discharge, is overruled.

Appealed By: Industrial Commissioner.

Findings of Fact: The claimant was employed by a food refrigeration company as a traffic clerk for 25 weeks through March 22, 1974. During this period of time, claimant was absent 16½ days and was warned about his absenteeism and his failure to comply with the rule that when he was absent from work he must notify the employer in advance of the start of his shift. Claimant knew of this regulation. Claimant did not report for duty on Monday, March 18, 1974 nor did he or anybody else contact the employer. On March 20, 1974 claimant’s wife telephoned the employer and explained that claimant had to leave for South Carolina on Sunday, March 17, 1974 in order to attend the funeral of his aunt. Claimant was discharged for his last absence and for failure to notify the employer in advance of his shift.

Opinion: The credible evidence establishes that claimant had been warned about the necessity of adhering to the rule requiring that he notify the employer in advance of his shift, if he was to be absent from work. In view of the warnings previously issued for his infractions of this reasonable rule, he should have protected his employment by notifying his employer on the first day of his absence. Claimant voluntarily elected not to adhere to this rule. This act of disobedience by claimant constitutes misconduct in connection with his employment.

Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective March 23, 1974 because he voluntarily left his employment without good cause is modified to disqualify claimant for misconduct in connection with his employment, and as so modified, is sustained.

The decision of the referee insofar as appealed from is reversed. (July 31, 1974)


A-750-1779

Index No 1110-3

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

January 13, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
ABSENCE AND LATENESS

Appeal Board Decision 199,635

EXCESSIVE LATENESS

Repeated lateness for non-compelling reasons despite warning by supervisor, is misconduct.

Referee Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective June 13, 1974 because he voluntarily left his employment without good cause by provoking his discharge, is overruled.

Appealed By: Employer

Findings of Fact: Claimant was employed as a porter in a hospital for about 15 months. He initially traveled to work by automobile. When the car was stolen, he thereafter had bus transportation. Claimant was repeatedly warned by his supervisor for latenesses, and that he would be discharged if he failed to show improvement. Nevertheless, he thereafter was again late on several occasions, including one-half hour on June 8, 1974. He was discharged by the employer on June 12, 1974, after a conference with his supervisors.

Opinion: The credible evidence establishes that notwithstanding the various warnings, claimant persisted in latenesses thereafter, which inevitably jeopardized the continuance of his employment. His failure to comply with these warnings constituted misconduct in the course of employment. Under the circumstances, he lost his employment through misconduct in connection therewith (Matter of James, ___N.Y. 2d ___, aff’g 40 AD 2d 949 aff’g Appeal Board 169,366).

Decision: The initial determination of the local office is modified to disqualify claimant from receiving benefits effective June 13, 1974 because he lost his employment through misconduct in connection therewith and, as so modified, is sustained.

The decision of the referee is reversed. (October 17, 1974)


A-750-1780

Index No. 1110-4

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

January 23, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Absence and lateness
Insubordination

Appeal Board Decision 197,338

TIME OFF WITHOUT PERMISSION

Claimant’s precipitous action in announcing that he would take the next two days off for vacation, and then doing so in defiance of supervisor’s denial of permission, is misconduct.

Referee Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective April 9, 1974, because he voluntarily left his employment without good cause by provoking his discharge, is overruled.

Appealed By: Employer

Findings of Fact: The claimant, a graphics, photo and paste-up man, worked for a newspaper for eight months until April 8, 1974. He was employed on a part-time basis, Monday through Wednesday, 9 A.M. to 6:30 P.M. Late in the afternoon on Monday April 8, he told his immediate supervisor that he would be absent for the remainder of the week, as he was going to Ft. Lauderdale, Florida for the Easter vacation. The supervisor remonstrated with claimant and advised claimant that he could not be spared, but claimant insisted on going. When claimant returned from Florida and reported back to work on Monday, April 15, his supervisor told him that he had been discharged.

Claimant’s job duties entailed the operation of sensitive photograph equipment requiring special training and experience. The skills that he possessed were needed particularly on the two days of each week, Tuesday and Wednesday, before the employer’s publication went to press. A replacement for the claimant, who would be satisfactory to the employer, would be difficult to obtain on short notice.

Opinion: The credible evidence establishes that late in the afternoon of Monday, April 8 the claimant told his immediate supervisor that he would not be in to work again until the following Monday, April 15, because he was going to Florida for the Easter vacation. The supervisor denied claimant permission to make the trip. On April 9 the claimant left for Florida. As a result of his precipitous action and the position in which he placed the employer thereby, claimant was discharged for what is deemed to be misconduct in connection with his employment.

Decision: The initial determination of the local office is modified to be on the ground that claimant lost his employment through misconduct in connection therewith and as so modified, is sustained.

The decision of the referee is reversed. (October 28, 1974)

 



A-750-1781

Index No. 1110-5

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

January 27, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Absence and lateness

Appeal Board Decisions 196,403 and 199,005

OVERSTAYING LEAVE

Overstaying a leave of absence and failing to communicate promptly with employer to explain why, is misconduct, unless there is a compelling reason for both infractions.

A.B. 196,403

Referee Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective March 20, 1974 because she voluntarily left her employment without good cause by provoking her discharge, is overruled.

Appealed By: Employer

Findings of Fact: The claimant, a secretary, worked in a bank for approximately 2 years until March 5, 1974. On that date she received a telegram stating that her father was ill in the West Indies. She arranged a two-week vacation from March 6 through March 19, 1974. She was due to return to work on March 20, 1974. The claimant had made arrangements for a return flight on March 19, 1974, which she missed. She did not return to New York until March 20. She failed to communicate with her employer until March 21, 1974 at which time she was discharged.

Opinion: The credible evidence establishes that the claimant failed to report to work or call in her absence of March 20, 1974. She knew that she was expected back to work on March 20 and did not make any effort to notify the employer of her absence. We reject her contention as incredible that she missed the return flight because it took off earlier due to a fuel shortage. We see no relationship between a fuel shortage and an unscheduled early departure without notice to the passenger. We also reject her contention that she was told by her supervisor that she could take extra time if necessary, without notice. This is an afterthought in view of her earlier statement at the local office where no mention of extra time was made. Under the circumstances the claimant’s failure to report to work as scheduled and failure to call in her absence was an act of misconduct in connection with her employment.

Decision: The initial determination of the local office is modified to disqualify the claimant from receiving benefits effective March 20, 1974 because she lost her employment through misconduct in connection therewith and as so modified, is sustained.

The decision of the referee is reversed. (October 3, 1974)

A.B. 199,005

Referee Decision: The initial determination of the local office holding the claimant eligible to receive benefits effective April 29, 1974 without any disqualifying conditions and overruling the employer’s objection thereto, is sustained.

Appealed By: Employer

Findings of Fact: The claimant, a porter, worked for a hospital for about six months through December 25, 1973. On November 16, 1973 he asked for a month’s leave of absence to visit his family in India. The employer granted him a leave of only two weeks commencing December 28, 1973 and terminating on January 11, 1974. On December 29, 1973 and terminating on January 11, 1974. On December 29, 1973 the claimant received a cable that his son was hospitalized in India. On the same day he bought an excursion airplane ticket to India which required him to remain in that country for at least 21 days. He departed from the United States on December 30, 1973. His son had been suffering from acute tonsillitis but by the first week in January 1974 he was fully recovered. Following the recovery of his son the claimant made no effort to return to work after the termination of his leave on January 11, 1974. On January 17, 1974, while the claimant and his son both were in good health, the claimant telegraphed a request to the employer for an extension of his leave until February 1, 1974. The employer did not respond to that request and when the claimant still had no returned to work by January 23, 1974, he was terminated. From January 18, 1974 through March 19, 1974 the claimant was treated for an ulcer. He did not return to the United States until April 24, 1974.

Opinion: The credible evidence establishes that after receiving a two weeks leave of absence which was to terminate on January 11, 1974, the claimant bought an excursion ticket to India which required him to remain in that country for at least until January 19, 1974, eight days beyond his leave of absence. Even though his son was hospitalized because of tonsillitis the medical evidence establishes that the son had completely recovered and was capable of resuming his normal functions at least a week before the end of the claimant’s leave of absence. During that week the claimant did not return to work or contact the employer. It was not until six days after the termination of his leave that the claimant telegraphed a request to the employer for an extension of his leave until February 1, 1974. Under the circumstances we conclude that the claimant had no compelling reason to be absent from work on January 12, 1974 and that he should be disqualified from receiving benefits because he lost his employment through misconduct in connection therewith by unilaterally fixing his own periods of employment. Matter of Guerrasio (34 N.Y. 2d 491). His illness subsequent to that date is immaterial.

Decision: The initial determination of the local office is overruled.

The employer’s objection is sustained.

Claimant is disqualified from receiving benefits effective January 24, 1974 because he lost his employment through misconduct in connection therewith.

The decision of the referee is reversed. (November 13, 1974)

 



A-750-1782

Index No. 1130-1

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

January 30, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Absence and lateness
Behavior off job

Appeal Board Decision 199,344

ABSENCE DUE TO INCARCERATION

When a claimant had been warned about absences, discharge for absence due to incarceration for an offense committed outside the course of employment, is a loss of employment due to misconduct, since the absence was caused by claimant’s own actions and violated a reasonable condition of employment – regular and prompt attendance.

Referee Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective June 4, 1974 because he voluntarily left his employment without god cause, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: The claimant, a machine operator, worked for the employer for approximately seven months until June 3, 1974. During the course of claimant’s employment he had been absent on numerous occasions and had been warned about the necessity of reporting to work on time. He last worked on June 3, 1974. That evening the claimant was arrested for assaulting his wife. He was in jail until the morning of Friday June 7, 1974. He did not contact his employer until June 10, 1974. When claimant telephoned his employer that morning he was informed that he was discharged because of his absenteeism.

Opinion: The credible evidence establishes that claimant’s last absences were caused by his own actions when he assaulted his wife, and that he was discharged because of his overall poor attendance record. The claimant’s absences were excessive and violated a reasonable condition of his employment, which required his regular and prompt attendance. Accordingly, we conclude that claimant lost his employment due to misconduct in connection therewith.

Decision: The initial determination of the local office is modified to disqualify claimant from receiving benefits effective June 4, 1974 because he lost his employment due to misconduct in connection therewith and, as so modified, is sustained.

The decision of the referee is reversed. (November 29, 1974)

 



A-750-1784

Index No. 1690-6
1705-2

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

March 17, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Pension or retirement
Reduction-in-force situations

COURT OF APPEALS DECISION

Matter of Louis Fisher

EARLY RETIREMENT: REDUCTION-IN-FORCE PROGRAM

An employee who elects to take advantage of his employer’s early retirement plan is subject to disqualification for voluntary leaving even though the plan is offered to achieve a reduction of the employer’s work force.

DECISION

The issue is whether the Unemployment Insurance Appeal Board’s decision that claimant’s retirement from the United States Postal Service in response to his employer’s request for a reduction in work force was a "voluntary separation" from employment "without good cause" disqualifying him from receiving benefits is valid. The Appellate Division reversed the Board’s decision and the Industrial Commissioner appeals. We have concluded that the record supports the Board’s determination and, accordingly, we must reinstate its decision.

Claimant, then age sixty-four and an employee of the United States Postal Service for twenty-seven years, retired from the Service on June 30, 1972 in order to take advantage of an early retirement plan offered by his employer as an incentive towards achieving the latter’s objective of reducing its work force. The retirement opportunity was explained in a memorandum issued by the Postmaster General on June 5, 1972. It notified employees that those meeting certain eligibility requirements who retired and were on a non-pay status no later than June 30, 1972 would receive a 4.8 % increase in retirement annuities. The memorandum, in part, stated: "The situation creating the discontinued-service retirement opportunity arises from the fact that we have an excess number of employees. But for the no lay-off provision in our National Agreement, we would be actively engaging in a system-wide reduction-in-force… While I encourage you to take advantage of this opportunity to retire, particularly in time to get the 4.8% cost-of-living increase, I want it clearly understood that no employee will be coerced to submit a resignation in response to this request." The memorandum also stated that resignations in response to the Postmaster General’s request would be considered involuntary for retirement purposes, with the consequence that retirement benefits would be more favorable than if the retirement were considered voluntary by the federal agency. Three days after his retirement, claimant filed for unemployment insurance benefits in New York.

Labor Law §593(1)(a), in relevant part, provides: No days of total unemployment shall be deemed to occur after a claimant’s voluntary separation without good cause from his last employment prior to the filing of his claim until he has subsequently worked in employment for not less than three days in each of four weeks or earned remuneration of at least two hundred dollars." The effect of this section is that, for a limited period measured by his subsequent employment [cf., Matter of James (Levin) 34 N.Y. 2d 491, 494], a claimant is ineligible to receive benefits if he voluntarily left his employment without good cause. Obviously, the claimant here could not have met the conditions of this section. And, after claimant had wended his way through the administrative pathways of the State Unemployment Insurance System, the Appeal Board, the system’s highest decisional body, found that he had left his employment voluntarily and without good cause and, therefore, was subject to the disqualification period.

In the course of the administrative proceedings, claimant stated in support of his claim that he had elected optional retirement in order to take advantage of the Postal Service’s offer of early retirement benefits and that both his employer and his union paper had led him to believe he would then be eligible for state unemployment insurance benefits.

The Appeal Board found that claimant could have continued to work until the mandatory retirement age of seventy, that he could have recouped the 4.8% increase in retirement annuity by working an additional nine months and that, in leaving his employment solely to take early advantage of the increase, he acted for a personal, non-compelling reason and without good cause.

Judicial review of the Board’s determination is explicitly limited by statute to questions of law. Labor Law, §623, in relevant part provides: "A decision of the appeal board shall be final on all questions of fact and, unless appealed from, shall be final on all questions of fact and, unless appealed from, shall be final on all questions of law." As a consequence, as to pure questions of fact, and factual inferences to be drawn therefrom, a decision of the Appeal Board, which then acts quasi-judicially, would be conclusive upon the courts if supported by substantial evidence. Here the evidentiary facts were undisputed. [See, Matter of Cassaretakis (Miller), 289 N.Y. 119, 125 (whether an individual was a member of the crew of a vessel), affd. sub nom. Standard Dredging Corp. v. Murphy, 319 U.S. 306.]

As to mixed questions of fact and law, i.e., where the conclusion turns on the combined consideration of factual and legal factors, the Appeal Board’s authority is quasi-legislative with the concomitant right and responsibility to exercise its expertise and judgment. Decisions so arrived at have been denominated "discretionary determinations". (1 N.Y. Jr., Administrative Law §181, p. 601). They are final if they have a rational basis. [See, e.g. Matter of Marsh (Catherwood), 13 N.Y. 2d 235, 239.] This is not to be confused with the "arbitrary and capricious" test applied to purely administrative actions and sometimes improperly applied to quasi-judicial or quasi-legislative determinations of an administrative agency. (See, e.g., Matter of Colton v. Berman, 21 N.Y. 2d 322, 384.) Questions of law, of course, may always be reviewed by an appellate court. (Matter of VanTeslaar (Levine), 35 N.Y. 2d 311, 317-318).

Applying these rules, whether a particular separation from employment is "voluntary" and "without good cause" (Labor Law §593 [1][a] in a particular case is usually a question of fact for the Appeal Board. Where, however, the issue of "voluntariness" is not a question of fact alone, but where, as here, there is not even any dispute as to the evidentiary details, and it involves as well quasi-legislative considerations of policy relating to the intended scope of the statute, the question is one to the determination of which the Appeal Board may bring to bear its own special competence in carrying out the supervisory authority conferred on it by the Legislature.

This case also involves the application of other rules arising out of the fact that the claimant was a federal employee. In such cases, the Appeal Board, and the subsidiary divisions of the state unemployment insurance administrative structure, are generally conclusively bound (U.S. Code, tit. 5, §8506) by certain findings of the claimant’s federal employing agency. These include 1/ "the reasons for termination of federal service." (U.S. Code, tit. 5, §8506 [1][4].)

1/ The federal employing agency’s findings are also conclusive regarding 1) whether or not the employee performed federal service, 2) the period of federal service and 3) the amount of federal wages (U.S. Code tit. 5, §8506 [a][1-3]).

Accordingly, it is the practice of the Industrial Commissioner to request the reasons for termination from the claimant’s federal employer. If the claimant and his federal employer agree on those reasons, then, pursuant to federal regulation, they are conclusive upon the state agency (Code of Fed. Reg., tit. 20, §609.18). Finality also obtains where the employee and his federal employer disagree and a determination is then made by the federal agency or the United States Civil Service Commission after a hearing on any issues in dispute (id.).

In the case before us, claimant asserts that his retirement was either involuntary or, if voluntary, was with good cause. His employer described the reasons for claimant’s termination as "retired-gave no reason", explaining that terminology "represents our conclusion that the claimant meets the tests of eligibility for discontinued service retirement…. Claimant could have continued in his employment, had he not retired. He was not coerced to submit his resignation, but did so voluntarily." Claimant disputed the federal agency’s conclusion that his retirement was voluntary. There was no hearing. Consequently, but the Appeal Board and the Appellate Division concluded that, as to the disputed conclusion of voluntariness, this "finding" was not binding upon the Board under U.S. Code, tit. 5 §8506 and Code of Fed. Reg., tit. 20, §609.18.

We agree that the federal agency’s conclusion that claimant had retired "voluntarily" was not binding on the Board, but for different and additional reasons. In our view, claimant’s employer’s characterization of this type of retirement as either "voluntary" or "involuntary" [see, Matter of Sier (Levine), 42 AD 2d 207; Matter of Hiken (Levine), 40 AD 2d 926,] is descriptive of the nature of his type of separation from employment only for federal retirement purposes. It is not a "reason" for termination which binds the Appeal Board in its administration of our state Unemployment Insurance Law.

Federal statute [U.S. Code, tit. 5, §8502 (b)] further provides that where, as here, unemployment compensation to federal employees is paid by the State pursuant to Federal-state agreement, "compensation will be paid by the State to a Federal employee in the same amount, on the same terms, and subject to the same conditions as the compensation which would be payable to him under the unemployment compensation law of the State if his federal service and Federal wages assigned under section 8504 of this title to the State had been included as employment and wages under that State law."(emphasis added.) Thus, except for the finality of specified federal findings enumerated in U.S. Code, tit. 5 §8506, including "reasons for termination of Federal service," state law and administrative policy prevail in determining questions of a federal employee’s entitlement to unemployment compensation benefits.

A federal employee who cooperates with his employer’s goal of reducing the work force by retiring early in exchange for accelerated retirement benefits should be entitled to the same unemployment benefits and be subject to the same conditions imposed by the Unemployment Compensation Law as would a state or private employee who retires under similar circumstances. This, in our view, is the effect of the federal statute (5 U.S.C. §8502 [b] supra). Its apparent aim of consistency of application of state unemployment insurance law as between federal and other employees should not be altered by a label placed on this type of retirement by the federal employer.

Our conclusion that the Board is, therefore, not bound for unemployment insurance purposes by the agency’s characterization of these resignations as "voluntary" or "involuntary" is buttressed by the Manpower Administrator of the United States Department of Labor itself. In "Unemployment Insurance Program Letter" Number 1094 dated December 21, 1970, addressed to all state employment security agencies, he states that "we will not question the propriety of a State’s determination action respecting a "Resignation – RIF[reduction in force) Situation decision if it is in accord with action normally taken in State UI (unemployment insurance) cases." In a similar letter, Number 1214 of December 4, 1972, he further explains that, in the case of a resignation in a reduction in force situation, the federal agency’s description of the separation from employment as "involuntary" is not necessarily binding upon the state under U.S. Code, tit. 5, §8506 (a), supra, since the particular employee might have been able to continue in employment.

In the case before us, the "reason" for claimant’s termination from federal service is that he retired. It is clear he did so in response to his employer’s request for a reduction in work force accompanied by an offer of early retirement benefits. Whether he retired "voluntarily" or "involuntarily" or with or without "good cause" were questions for the Appeal Board to decide according to the circumstances of the particular case. We emphasize that this is not a case of mandatory retirement for age, disability, discontinued service or other reason compelling a conclusion of involuntariness. Nor is this the case of an employee who would forever have lost the offered increase in retirement benefits or whose benefits would have been reduced by continuing to work.

Here, as the Board found, the claimant could have earned the offered 4.8% annuity increase by working an additional nine months. He would not have given up this benefit by continuing to work. His decision to retire early, then, was not the consequence of a Hobson’s choice between an annuity increase or no increase at all. As a consequence, the Appeal Board’s determination that he retired for non-compelling reasons, voluntarily and without good cause within the meaning of the Labor Law, was rational and should not be disturbed.

We hold, therefore, that the Appellate Division exceeded its power in reversing the Appeal Board and substituting its own judgment regarding appropriate policy to be adopted in the administration of the Unemployment Insurance Law and in the distribution of its funds in this case (see, Labor Law §550, subd. 3). Those in whom the responsibility for administration of the System is lodged cannot be said to have acted irrationally in denying the payment of benefits to a claimant who could have continued to work but chose not to do so in the exercise of his own rational even well-motivated, personal purposes.

Accordingly, we reverse the order of the Appellate Division and reinstate the decision of the Appeal Board conditionally disqualifying claimant from receiving benefits because he voluntarily left his employment without good cause. (February 27, 1975)

COMMENTS

  1. This decision upholds the Appeal Board’s finding that claimant’s affirmative response to his employer’s memorandum to all eligible employees urging them to consider early retirement, in order to obtain the increased annuity offered to those who cooperated in this manner with the employer’s program for effecting a reduction-in-force, constituted a voluntary leaving without good cause. Although claimant was a postal employee, the principle applies also to employment in the private sector.
  2. The Board (and the Court) noted that claimant could have recouped the 4.8% increase in retirement annuity by working an additional nine months. In this connection, the principle has been established that a claimant who exercises an option to retire before a given date so as to receive a substantial increase in his retirement annuity voluntarily leaves his employment with good cause only if his continuing potential employment (subject to mandatory age retirement, closing of establishment, etc.) would have been insufficient to produce an annuity comparable to that which he is receiving upon his actual retirement. (See Index 1690-5; A-750-1654).

 



A-750-1785

Index No. 1320 C-4

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

March 20, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
Unemployment due to

APPELLATE DIVISION DECISION

Matter of Francis P. Crerand, et al

LONGSHOREMEN WHO SHAPE UP AT HIRING HALL

Longshoremen who obtained work by "shaping up" at a hiring hall were employed on a daily basis only. Since they had not been "pre-ordered" to continue to work on the job site for the day when a strike by their union commenced, they were not employed on that day, their unemployment was not caused by the strike, and thus they were not subject to suspension of benefit rights for industrial controversy.

DECISION

Appeals from decisions of the Unemployment Insurance Appeal Board, filed December 30, 1971 and March 20, 1972, which determined that claimants were entitled to unemployment insurance benefits.

Claimants, longshoremen and members of the International Longshoremen’s Association, had worked regularly for an employer at one of the New York City waterfront piers until October 25, 1968 when the pier was closed. Thereafter, through December 20 claimants sought work by "shaping-up" at a hiring hall and each obtained some work during that period of time. Although a strike by the I.L.A. had been called for October 1, 1968, an 80-day injunction was obtained and the longshoremen went back to work on October 3, continuing to operate until the evening of December 20, at which time a strike occurred. From December 21, 1968 to February 6, 1969 each of the claimants was unable to obtain any employment. The Board determined that since none of the claimants had been "pre-ordered" to work after December 20, 1968, they were not employed when the strike commenced and, consequently, their unemployment was not caused by the strike. They were thus not subject to the seven-week suspension period pursuant to subdivision 1 of section 592 of the Labor Law.

The hiring practices of longshoremen are unique. [See Matter of Lessner (United States Lines Co.Catherwood), 36 AD 2d 1, 3-4.] Once their pier was closed, claimants were required to go to the hiring hall to find work. If, after being selected by an employer from a "shape-up" at the hall, claimants were to continue on the job site, their names had to be posted at the particular pier involved prior to the close of each working day and also recorded through the hiring agents at the hall. They were employed on a daily basis only and none had been pre-ordered to work for the day the strike commenced. In effect, they had a mere expectancy of employment if the "shape-up" had not been prevented by the strike. [Matter of Burger (Corsi), 277 App. Div. 234, 237, affd. 303 N.Y. 654.) We find no indication in the record that the New York Shipping Association was the employer of claimants even though several fringe benefits from a collective bargaining contract between the I.L.A. and the Association were derived by claimants. On the present record there is substantial evidence to support the Board’s determination that claimants were not, in fact, employed when the strike occurred and that the cause of their unemployment was not the industrial controversy.

Decisions affirmed, without costs. (November 7, 1974).

COMMENTS

  1. In Matter of Lessner, cited in this decision and noted at Index 1315-11, longshoremen were held to have lost their employment due to an industrial controversy in the establishment when a strike occurred against their employer at the pier where they had been regularly employed.

 



A-750-1787

Index No. 1115-2
1185-12

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

March 31, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Accidents and damage
Violation of company rules

Appeal Board Decisions 195,280; 195,383; 195,514

FAILURE TO FOLLOW PROCEDURE

Deliberate failure to follow employer’s reasonable procedures, set up to maximize efficiency and minimize accidents, waste or defective product, is misconduct.

A.B. 195,280

Referee Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective February 2, 1974, because he voluntarily left his employment without good cause by provoking his discharge, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: The claimant was employed as a fuel-oil deliveryman for about four months. On February 1, 1974 he was told to deliver 1500 gallons of oil to a customer. While the oil was being pumped from claimant’s truck into the customer’s storage tank, and after more than half of the load had been pumped, claimant left the truck unattended. During his absence the tank was filled and the oil spilled over into the street because claimant was not there to shut off the pump on the truck. The fire department had to be called to clean the oil from the street. Claimant knew that he was to stay near his truck at all times while oil was being pumped from his truck. Claimant was discharged because of this incident.

Opinion: The credible evidence establishes that the claimant knew that he was to stay near the stuck at all times while oil was being pumped from it and that there was a considerable spillage and loss of oil when he left his truck unattended. Under the circumstances, we conclude that claimant deliberately acted in contravention of the employer’s interest and that he lost his employment due to misconduct in connection therewith.

Decision: The initial determination of the local office is modified to disqualify claimant from receiving benefits because he lost his employment through misconduct in connection therewith.

The decision of the referee is reversed. (August 12, 1974)

A.B. 195,383

Referee Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective February 3, 1974 because he voluntarily left his employment without good cause by provoking his discharge, is overruled.

Appealed By: Employer

Findings of Fact: The claimant, a cook, worked for an institutional catering concern at a military academy from June 15, 1973 through February 5, 1974. He had previously worked at the same job for about nine years when the military academy operated its own kitchen. Shortly after the employer herein took over the full purveying operation at this particular location the claimant was instructed in the employer’s uniform methods of food preparation designed to maximize the worker’s efficiency and to minimize waste. He was specifically told that scrambled eggs were to be prepared in a steam jacket rather than on the grill. He had in the past prepared such eggs on a grill and he continued to do so. After his supervisors reminded him of the required standard company procedures relative to the preparation of scrambled eggs, he complied with such procedures for about a month. He then reverted to his former method of preparing scrambled eggs on the grill and continued to do so despite two further admonitions that he was expected to follow the company procedures by preparing scrambled eggs in a steam jacket. He was discharged on February 5, 1974 for failing to comply with company procedures.

Opinion: The credible evidence establishes that the claimant was repeatedly instructed in the required company procedures for the preparation of food. He persisted in using his own methods which were contrary to the company procedures, and even after the required standard company procedures were reiterated to him, he persisted in performing his work in his own fashion. The employer'’ procedures were reasonable and it had a right to expect compliance therewith from the claimant. Under the circumstances we conclude that the claimant’s continued violations of those known and reasonable procedures constituted misconduct in connection with his employment as a result of which he lost such employment.

Decision: The initial determination of the local office is modified to disqualify the claimant from receiving benefits effective February 3, 1974 because he lost his employment through misconduct in connection therewith.

The decision of the referee is reversed. (August 8, 1974)

A.B. 195,514

Referee Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective February 2, 1974, because he voluntarily left his employment without good cause by provoking his discharge, is overruled.

Appealed By: Industrial Commissioner and employer.

Findings of Fact: Claimant, a bake and press operator was employed by a manufacturer of electrical equipment for 22 years until March 2, 1974. He had been instructed and warned that the process requirement for welding units on his job was to mask them with foil so that welding splash would not go into the units and later cause short circuits. On his last day of employment, claimant was welding units to be used in capacitors. He was required to place a foil mask over the units when welding, so as to prevent weld slash. Approximately one and a half-hours prior to the incident in question, he was observed not using the proper masking and was reminded that everything had to be masked. Thereafter, while welding another unit of 25 parts, he noticed that three of the parts were not welded after he had taken off the masking. He then proceeded to weld them without again masking the units. The unit manager had observed claimant and suspended him pending discharge for again failing to follow instructions about masking prior to welding. Claimant was given the choice of either resigning or being discharged. He resigned. His union which was in contractual relationship with the employer did not file a grievance on his behalf.

Opinion: The credible evidence establishes that claimant had been instructed to mask the work he was required to work on. The procedure required was to prevent damage to electrical units and loss to the employer by the welding splash, which could cause short circuits in the units being welded. His attention had been specifically drawn to this requirement of masking units to be welded only an hour and a half prior to the incident in question. His action was a deliberate act, violating the employer’s rules to the employer’s detriment by producing defective products. Under the circumstances, he lost his employment through misconduct in connection therewith. (Matter of James, N.Y. 2d, modifying 40 AD 2d 949, affg, Appeal Board 169,366.)

Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective February 2, 1974, because he voluntarily left his employment without good cause by provoking his discharge, is modified to disqualify the claimant from receiving benefits effective March 3, 1974, because he lost his employment through misconduct in connection therewith, and as so modified, is sustained.

The decision of the referee is reversed. (September 6, 1974)

 



A-750-1788

Index No. 1150-3

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

April 3, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Insubordination

Appeal Board Decision 199,010

REFUSAL TO WORK ON WEEKEND

Refusal without compelling reason to work on one weekend, for which claimant would be compensated, is insubordination constituting misconduct, even though claimant did not normally work weekends.

Referee Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective June 4, 1974, because she voluntarily left her employment without good cause by provoking her discharge, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: The claimant, a computer operator, last worked for the employer in New York City on June 3, 1974. On that date, claimant’s immediate supervisor requested that she make herself available to do inventory work on the weekend of June 29 – June 30, 1974. Claimant stated that this would not be possible as she had already made plans to visit her sister in Lake George that weekend. The employer’s vice-president was informed of claimant’s decision and he requested that claimant report to his office. When she did so, he repeated the request previously made by the supervisor. Claimant again refused to accede to such request. Later in the day, the vice-president again asked claimant if she would reconsider the matter. Claimant stated that she would not and she was then discharged. Admittedly, claimant could have postponed her travel plans for some other weekend. There would have been no financial loss to claimant if she had done so. The claimant would have been compensated for work to be done on the weekend of June 29 – June 30, 1974. She did not object to the inventory work.

Opinion: The credible evidence establishes that claimant refused to comply with a reasonable request of the employer; that she was given approximately four weeks’ advance notice that she was to work on the weekend in question; that a trip that she had planned could have been postponed with no financial hardship to herself; and that she would have been compensated for work.

Accordingly, we conclude that claimant’s refusal to comply with the reasonable request of her employer was insubordination which constitutes misconduct within the meaning of the Law and that the claimant lost her employment in connection therewith.

Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective June 4, 1974, because she voluntarily left her employment without good cause by provoking her discharge is modified to disqualify her because she lost her employment through misconduct in connection therewith and, as so modified, is sustained.

The decision of the referee is reversed. (November 7, 1974)

 



A-750-1789

Index No. 1160-5

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

April 7, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Insubordination

Appeal Board Decision 196,420

INVITING EMPLOYER TO DISCHARGE

When a claimant responds to a reprimand by inviting the employer to discharge him, such response is insubordination constituting misconduct.

Referee Decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective January 30, 1974, because she voluntarily left her employment without good cause by provoking her discharge, is overruled.

Appealed By: Industrial Commissioner

Findings of Fact: Claimant, a compositor, worked for the employer for three and a half years through January 29,1974. Although the hours of employment were from 8:30 A.M. to 4:45 P.M., the employees were permitted to punch out at 4:42 P.M. On January 29, 1974, claimant was observed standing at the rear of the work room wearing her coat before 4:42 P.M. When she reached the front of the work room, the employer asked her why she had her coat on. Claimant replied that it was time to leave work. When she was reminded that quitting time was actually 4:45 P.M., claimant said, "If you don’t like it, you can fire me". She was thereupon discharged.

Opinion: The credible evidence establishes that claimant’s response to the employer’s statement that she was leaving her work too early was unwarranted and insubordinate and constitutes misconduct in connection with her employment. Accordingly, we conclude that she lost her employment through misconduct in connection therewith.

The decision of the referee is reversed. (September 17, 1974).

 



A-750-1790

Index No. 1190-2

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

April 10, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Other Offenses

Appeal Board Decision 195,159

PROFANITY TO SUBORDINATE

Use of profanity by a supervisor in reprimanding a subordinate, in direct violation of a warning by management to desist from such practice, is misconduct. (Claimant was an assistant food service director in a medical center.)

Referee Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective September 17, 1973 because he voluntarily left his employment without good cause by provoking his discharge, is overruled.

Appealed By: Employer

Findings of Fact: Claimant, an assistant food service director was employed at a medical center for over two years through September 19, 1973. He was in the habit of using profane language. In April 1973 his resignation had been requested because of his use of improper language and he was retained only because he promised that he would abstain from further use of such language. However, he did not do so. During the latter part of August 1973 he reprimanded a subordinate during which he again used profane language. As a result he was discharged.

Opinion: The credible evidence establishes that claimant acted in a manner that was not in the best interests of the employer. He had been warned about his use of profanity, having come close to be discharged earlier in the year for that reason. His subsequent use of such language was in direct violation of this prior warning to desist therefrom. Accordingly, it is concluded that he committed misconduct in connection with his employment and was discharged for that reason.

Decision: The initial determination of the local office disqualifying the claimant from receiving benefits, effective September 17, 1973, because he voluntarily left his employment without good cause, is modified to be effective September 20, 1973, on the ground that he lost his employment through misconduct in connection therewith, and as so modified, is sustained.

The decision of the referee is reversed. (August 9, 1974)

 



A-750-1791

Index No. 1310-17

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

April 14, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
Definition

Appeal Board Decision 203,739

DISCONTINUANCE OF BUSINESS

When an employer ceased operations, immediately began winding up its affairs, and went out of business for economic reasons, after its employees and their union refused to waive contractual pay increases, the loss of employment was not due to an industrial controversy, and no suspension applied.

Referee Decision: The revised initial determinations of the local office suspending the accumulation of benefit rights by all of the claimants effective July 31 through September 17, 1974 on the grounds that they lost their employment because of an industrial controversy in the establishment in which they were employed and charging the claimant, J.G., with an overpayment of $225 in benefits ruled to be recoverable, is sustained.

Appealed By: Claimants

Findings of Fact: The claimants, knitters, machine handlers and mechanics, were employed by a knitting mill for various periods through July 27, 1974. The employer operated as a contractor, knitting cloth for its customers from yarns supplied by the customers. All of the claimants were members of a union in contractual relations with the employer. Under the collective bargaining agreement, effective July 29, 1974, the wages of knitters and mechanics were to be raised by $7.00 a week and those of all other employees were to be raised by $5.25 a week.

On July 12 the employer notified the union that it could not afford to pay the contractual increases and threatened to close if the union called a strike or slowdown. The union made no response. On July 29 when they reported to work, the claimants were told that there would be no work unless they signed, in contravention of the contract, waivers of the contractual increases. None signed the form and the union rejected the employer’s proposal. The employer immediately began winding up its affairs. In the next few weeks, it notified its customers, completed some jobs, refused new work, returned materials to customers and disposed of machinery. About August 18 the employer notified the union that it was out of business. It so advised the Internal Revenue Service on October 1, 1974. At no time after July 12 did the union call or threaten to call a strike. There were no negotiations to persuade the employer to continue in business.

When the claimant, J.G., filed his additional claim for benefits on July 31, 1974, he gave as the reason for leaving his job: "lay-off no work." Thereafter he received $225 in benefits.

Opinion: We disagree with the referee’s conclusion that the claimants lost their employment as the result of a strike, lockout or other industrial controversy. The credible evidence showed that the employer determined to go out of business for economic reasons if its employees and the union did not acquiesce in waiving the contractual pay increases and that it carried out its intention when its proposal was rejected. The refusal of the employees and the union to waive the employer’s compliance with the contract was not a strike. No was the union’s acceptance of the company’s decision to close. The employer’s going out of business did not constitute a lockout. A lockout has been defined as "a temporary withholding or shutting down of work by an employer, in protest against employee actions to coerce them into accepting his terms" (Peterson, American Labor Unions, p. 260, cited in a referee’s decision in a prior case quoted in Appeal Board 72,544). There was nothing temporary about the employer’s cessation of business. The employer’s closing was not "other industrial controversy" (Matter of Cohen, 283 App. Div. 143) but a business decision, predicated on its prospective inability to operate profitably.

We conclude that the claimants did not lose their employment due to a strike, lockout or other industrial controversy and that none is subject to the statutory suspension of benefits. Our conclusion is not affected by the employer’s action in winding up its business that necessarily took time. None of the employer’s actions was indicative of an intent to continue business.

In view of the foregoing, the claimant, J.G., was entitled to the benefits he received and his statement was not false. He was not overpaid.

Decision: The revised initial determinations of the local office suspending the accumulation of benefit rights by all of the claimants effective July 31 through September 17, 1974 on the ground that they lost their employment because of an industrial controversy in the establishment in which they were employed and charging the claimant, J.G., with an overpayment of $225 in benefits ruled to be recoverable are overruled.

The decision of the referee, insofar as appealed from, is reversed. (March 5, 1975)

COMMENTS

In this decision the Appeal Board noted that the employer’s going out of business did not constitute a lockout or other industrial controversy, but a business decision, predicated on its prospective inability to operate profitably. It also said that neither the refusal of the employees and the union to waive the employer’s compliance with the contract, nor the union’s acceptance of the company’s decision to close, constituted a strike.

 



A-750-1793

Index No. 920 A-1

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

June 9, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Employees of Educational Institutions

Appellate Division Decisions

Matter of Reba Nierenberg

Matter of Harriet Sherwin

NURSERY SCHOOLS AND KINDERGARTENS

A nursery school or kindergarten is an educational institution within the meaning of Section 590.10.

Matter of Nierenberg

Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 21, 1973, which held claimants eligible for benefits, reversed the decision of a Referee, and overruled determinations of the Industrial Commissioner that claimants were ineligible for benefits pursuant to subdivision 10 of Section 590 of the Labor Law.

Claimants were employed as teachers for the 1971-72 school year in a nursery school operated by a religious congregation as they had been similarly employed for 12 prior years. Claimants are all New York State licensed teachers. At the end of the 1971-72 school year they had verbal contracts to return to their employment for the 1972-73 school year for the same employer and, in fact, did so. Although the nursery school was operated by a religious congregation, the school itself was non-sectarian. No formal subjects were taught to the children. The school was not part of a coordinated educational system and there was no automatic progression of nursery school children into a graded school.

The record indicates that the employer, S. ________, is a non-profit organization as defined by subdivision 1 of Section 563 of the Labor Law. The Board held that claimants were eligible for benefits under the terms of subdivision 10 of Section 590 of the Labor Law which provides that teachers in institutions of education may not receive benefits for the period between two successive years based on such employment. The decision was based on the board’s conclusion that nursery school provides "no more than a baby-sitting service" and are not institutions of education.

The issue in the instant case is whether a nursery school is an educational institution within the meaning of the section. The Board found that subdivision 10 of Section 590 of the Labor Law is not applicable to the claimants herein because they were not employed in an "institution of education" and, therefore, they were entitled to receive benefits based upon full credit for all their weeks of base period employment, without any portion being disregarded. With this determination this court cannot agree. We have previously considered the question in Matter of Klein (Levine) (42 A.D. 2d 640) and there determined that a nursery school teacher was ineligible for benefits between academic years.

Decision reversed, without costs, and matter remitted to the board for further proceedings not inconsistent herewith. (May 15, 1975)

Matter of Sherwin

Appeal from a decision of the Unemployment Insurance Appeal Board, filed March 18, 1974.

The sole issue raised on this appeal is whether or not a nursery school is an "institution of education" within the meaning of subdivision 10 of Section 590 of the Labor Law. In Matter of Ni(e)renberg (Levine) (___AD 2d___) [decided herewith]; see also Matter of Klein [Levine], 42 AD 2d 640), we held that a nursery school is an institution of education.

Decision reversed, without costs, and matter remitted for further proceedings not inconsistent herewith. (May 15, 1975)

COMMENTS

  1. In the "Nierenberg" decision the court noted that claimant had been employed by a non-profit organization as defined by Section 563.1 of the Unemployment Insurance Law. Subdivision 2 of that Section excludes from coverage the services rendered for a non-profit organization by "a person engaged in a teaching or other professional capacity at an educational institution which is not an institution of higher education." Thus, the claimant’s employment was excluded from unemployment insurance coverage, although the court did not decide the case on that issue. As a practical matter, when dealing with claims which may fall within the ambit of both Section 563.2 and 590.10, the local office should first resolve the question of coverage under Section 563.2.
  2. Claimant Sherwin was employed in her base period as a teacher in the kindergarten of a private school operated for three, four and five-year-olds; no classes above the kindergarten level were taught at the school; and upon completing the program pupils went to the first grade elsewhere.
  3. Matter of Klein, cited in both decisions, concerned a nursery school teacher who was held subject to Section 590.10 when she filed for benefits between school years. The court in that case found that although claimant’s contract was an oral one, there was no evidence that she would have been required to perform services more than one year after the date of the oral agreement. Otherwise, said the court, the contract would have been unenforceable and Section 590.10 would not apply. In the instant cases the court addressed itself solely to the question of whether a nursery school was an "institution of education" within the meaning of Section 590.10, thus leaving it to the Appeal Board to resolve any other issues, including that of claimants’ oral contracts.

 



A-750-1794

Index No. 1155-1

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

June 11, 1975

INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Insubordination

Appeal Board Decision 206,335

REFUSAL TO WORK OVERTIME

Refusal to work overtime is not misconduct if it was agreed at time of hire that claimant would not be required to work overtime.

Referee Decision: The initial determination of the local office disqualifying claimant from receiving benefits effective November 16, 1974 because she lost her employment due to misconduct in connection therewith, is sustained.

Appealed By: Claimant

Findings of Fact: Claimant, a billing machine operator, worked for a manufacturer of precious metals and dental supplies from April to November 15, 1974, when she was discharged. Her hours of work were 8:45 to 4:45 p.m. When claimant was hired, she informed the employer that she would not work overtime. The employer accepted this arrangement. During the course of her employment, she refused many requests by the employer that she work overtime. Claimant was discharged because of her refusals to work overtime.

Opinion: The credible evidence establishes that the claimant informed the employer, when she accepted this job, that she would not work overtime and that the employer accepted this arrangement. This was a condition of her employment. Accordingly, claimant’s refusals to work overtime cannot be considered misconduct and her discharge for such refusals was not disqualifying (See A.B. 195,347).

With respect to the employer’s contention that it discharged claimant also because she had a poor attendance record, we are not satisfied that such record brought about her discharge. Significantly, the number of her latenesses and absences, which were due to illness, was limited, and the employer did not warn claimant with respect thereto. We believe that claimant was discharged only because she would not work overtime. Since the employer had agreed, at the time of hire, that she would not be required to work overtime, claimant was not bound to comply with the employer’s requests that she do so.

Decision: The initial determination of the local office is overruled.

The decision of the referee is reversed. (May 8, 1975)

COMMENTS

In A.B. 195,347 cited above, the Appeal Board overruled a disqualification when a claimant was terminated for refusing transfer to the day shift because of conflict with his hours of college attendance. The Board found that at time of hire claimant had informed the employer of his desire to work evenings because of such schooling and "the employer accepted this arrangement." The Board also noted that claimant "would possibly lose his tuition payments" if he dropped his schooling to accept the transfer.

 



A-750-1795

Index 1150A-7

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 18, 1975

Interpretation Service - Benefit Claims
MISCONDUCT
Falsification of employment application

Appeal Board Decision 204,070

CONCEALMENT OF PRIOR EMPLOYMENT

Deliberate omission of a prior employer from an employment application may be misconduct.

Referee decision: The initial determination of the local office disqualifying the claimant from receiving benefits effective October 1, 1974, because he lost his employment through misconduct in connection therewith, is overruled.

Appealed by: Employer

Findings of Fact: Claimant was employed as a senior buyer in a hospital on August 29, 1973. After he was discharged on May 31, 1974, he filed a grievance as a result of which he was reinstated on September 9, 1974. In attempting to catch up on his paper work, claimant took home hospital purchase record cards. Although this was common practice among hospital employees, claimant was unaware that to do so was against hospital policy. When the employer discovered that its records had been removed and ordered claimant to bring them back to the office, claimant complied. On Friday, September 27, 1974, the employer received information that the claimant had omitted from his employment application in 1973, at the time of original hire, and in 1974, when he was reinstated, any indication that in 1968 he had worked at a Florida hospital. The employment applications which claimant signed included a statement that he knew that giving false information could lead to his dismissal. On Monday, September 30, 1974, the employer discharged claimant because he had falsified his employment applications and also for the removal of hospital records without permission. The claimant admitted that he did not disclose his employment at the Florida hospital because he was afraid of getting a bad recommendation.

Opinion: The credible evidence now before the Board establishes that the claimant deliberately omitted material information regarding his prior employment from his employment applications, despite the fact that he was aware that the giving of false information could lead to his discharge. While he may have considered it wise to omit such vital information, nevertheless, by so doing he is chargeable with misconduct in connection with his employment.

In view thereof, we need not consider the question of whether or not claimant's removal of the hospital records from the office also constituted an act of misconduct in connection with his employment.

Decision: The initial determination of the local office is sustained.

The decision of the referee is reversed. (May 28, 1975)

 



A-750-1797

Index 1315-16

NEW YORK STATE DEPARTMENT OF LABOR
Unemployment Insurance Division
Adjudication Services Office

June 25, 1975

Interpretation Service -Benefit Claims
INDUSTRIAL CONTROVERSY
Establishment, definition

Appellate Division Decision

Matter of Patricia DiLella

OUTSIDE SALESPEOPLE

Outside salespeople who reported orders by telephone, occasionally visited their employer's premises, and were under the direction of sales managers based there, were held to be employed in the same "establishment" as the employer's clerks, warehousemen and drivers who worked in or operated from those premises.

DECISION

This is an appeal from a decision of the Unemployment Insurance Appeal Board, filed January 29, 1974, which held that claimants were not entitled to unemployment insurance benefits.

This appeal involves claimants who were employed as "outside" liquor and wine salesmen by wholesale distributors in New York City and the metropolitan area each employer maintained one place of business with executive and clerical offices and where all merchandise received from suppliers was stored, orders reported, processed, packaged and, in turn, delivered therefrom by trucks operating from the same location. A strike against these employers by drivers and helpers of Local 816 of the Teamsters Union and clerks and warehousemen of Local 1 of the Distillery workers Union was called at the expiration of their collective bargaining contracts, effective November 1, 1972, and resulted in claimants' loss of employment. Picket lines were placed around the premises of each employer and no merchandise could thereafter be received, stored, orders taken therefor or delivered for the duration of the strike which was settled on December 13, 1972.

Claimants were members of Local 2 of the Liquor Salesmen's Union and Local 18 of the Wine Salesmen's Union, working under contracts with later terminal dates. They did not strike. In anticipation of the strike, each employer sent telegrams to its salesmen, including claimants, to the effect that operations would have to cease if the strike occurred and if it did materialize an November 1, 1972, they were not to report for work or call on trade. The board found that claimants were also notified that their unions had decided to honor the picket lines of other unions and that they should not attempt to work. It determined that claimants lost their employment because of an industrial controversy in the establishment of the respective employer in which they were employed and suspended their benefit rights for seven weeks, effective November 2,1972.

The sole issue presented on this appeal is whether there was substantial evidence to support the board's decision that claimants were employed in the same establishment as the striking union employees. Claimants contend that since they worked in the field soliciting orders, using their homes as a base for all office records, correspondence and calls, and performed no work at the employer's place of business, they were not employed in the same establishment as the striking employees and were, thus, entitled to unemployment insurance benefits. They rely on Matter of Ferrara (Catherwood) (10 NY 2d 1) and Matter of Sierant (Catherwood) (24NY 2d 675). We do not agree. The Ferrara and Sierant cases are clearly distinguishable. The term "establishment", as used in the statute providing for suspension of benefits to employees who lose their employment because of a strike (Labor Law, 592, subd [l]), was defined in those cases as applying to the immediate geographic situs of the striking employees, rather than to the corporate enterprise. In both Ferrara and Sierant the determination of the Appeal Board that the strikers and claimants were employed in separate establishments was upheld. The court emphasized, however, that an appellate court must confirm the determination of the Appeal Board if it is supported by substantial evidence.

The record in the instant case reveals that all orders solicited by claimants were either phoned in by claimants or brought to the employer's place of business by them personally, where they were processed and shipped out. The sales managers and supervisors under whose direction claimants operated were based at the employer's premises. Weekly draws and commission statements were prepared there and either mailed or handed to claimants. There is testimony in the record that some of claimants' customers, on occasion, would "call in" orders for merchandise directly to the office order board for which claimants received full commissions. Although sales meetings were sometimes held on the premises and sometimes at a hotel or motel, sales managers directed all such meetings and handed out sales materials to claimants thereat. Under such circumstances, we conclude that there was ample evidence before the board to justify its conclusion that claimants were employed at the same establishment as the striking union employees and its determination, therefore, must be upheld.

The decision should be affirmed, without costs. (May 22, 1975)