Index No. 1740D-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
December 6, 1963
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Discrimination
Failure to Pay
Appeal Board Case Number 105,248
FAILURE TO PAY
Where claimant was not
included in employer’s non-obligatory decision to grant holiday pay to some of
his non-union employees, a voluntary leaving of employment, contending
discrimination, was without good cause.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective June 6,
1963, on the ground that she voluntarily left her employment without good cause
is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant was employed for seven
months as a trimmer and packer by a manufacturer of handbags. The employer
operated a union shop, but was permitted to employ non-union workers. The
collective bargaining agreement between the employer and the union provided
that Memorial Day was a paid holiday for union members. The agreement made no
provision for non-union workers.
The employer had in his
employ 22 union workers and 11 non-union workers on May 30, 1963. Claimant was
not a union member. Although the employer was not obligated to do so, he paid
holiday pay to six of the 11 non-union employees, based on their length of
service and their employment records.
Claimant received her pay
check on June 5, 1963 and found that she had not been paid for Memorial Day.
She ascertained that two other non-union workers, one of whom had been hired on
the same day as claimant, had been paid for that day. She asked her employer
why she had not been paid, whereas the other two non union workers were paid.
He informed claimant that she was not entitled to holiday pay. Claimant
thereupon left her employment.
Appeal Board Opinion and
Decision: The
credible evidence establishes that, as a non-union worker, claimant was not
entitled to be paid for Memorial Day as a matter of right under the contract
between the employer and the union. The employer’s decision to grant holiday
pay to some of his non-union employees, even though he was not obliged to do
so, was a matter within his discretion. We reject claimant’s contention that
the employer unlawfully discriminated against her, since she was not the only
non-union employee who was not paid. On all of the evidence in this case, we
find that claimant left her employment without good cause.
The initial determination
of the local office is sustained. The decision of the referee is reversed.
(November 20, 1963)
Index No. 760B.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
January 2,1964
INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Training Courses
Appeal Board Case No. 105,315
AVAILABILITY; ATTENDANCE AT
REHABILITATION COURSE
Claimant, registered with
the special Placement Unit, attending a rehabilitation course (watch repairing;
9:00 a.m. – 4:00 p.m. – 5 days) through arrangements by the NYS Division of
Rehabilitation, was available for employment when he was prepared to abandon
the rehabilitation program if he obtained employment, followed want ads, and
would have accepted any employment consistent with his physical limitation.
Referee’s Decision: The initial determinations of the
local office holding claimant ineligible to receive benefits effective May 20,
1963, and July 12, 1963, respectively, on the ground that he was not available
for employment is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, 38 years old, filed for
benefits effective May 20, 1963. He had injured his back in November 1962 and
was unable to return to his job as a platform man. Claimant cannot do bending,
heavy lifting, stand for long periods of time and travel by subway.
The New York State Division
of Rehabilitation arranged for claimant to attend a school for watchmaking and
repair beginning with June 4. Except for the month of July, when the school was
closed, claimant has been attending classes five days per week from 9 a.m. to 4
p.m. This course will terminate in January 1965.
Throughout the period of
claimant’s certification for unemployment insurance benefits, claimant followed
the want ads in the newspapers. He would have accepted any employment
consistent with his physical limitation. Since October 1, claimant canvassed
employers who could utilize the new skills he had acquired in the training
course. Claimant would have given up his training course for a full-time job in
view of the fact that he has four children to support.
Claimant registered with
the Special Placement Unit of the Employment service. From the inception of his
registration with this unit, special consideration was given to him to the
extent that his registration was placed in the active file. Any special orders
received by this unit would have been referred to the claimant. In the
judgement of the representative of the unit who appeared at the hearing before
the Board, claimant has always been ready, willing and able to work.
The initial determination
which was issued by the insurance office was based upon the same standards which
are applicable to claimants who are not physically handicapped.
Appeal Board Opinion and
Decision: In view
of the claimant’s physical condition, and based upon claimant’s actions, we are
of the opinion that claimant was available for employment. He made reasonable
and realistic efforts to obtain employment. The Special Placement Unit gave
claimant special consideration in order to obtain employment for him while he
was attending school. Significantly, the representative of the Special
Placement Unit was not of the same opinion as to claimant's availability for
employment as was the employment interviewer who handles claimants other than
those who are physically handicapped. Since claimant was prepared to abandon
the rehabilitation program if he could obtain employment, his attendance at the
school did not render him unavailable. Under the circumstances, we conclude
that claimant was available for employment during the periods in issue.
The initial determinations
of the local office holding claimant ineligible to receive benefits effective
May 20, 1963, and effective July 12, 1963, on the ground that he was not
available for employment, are overruled. The decisions of the referees are
reversed. (December 13, 1963)
Index No. 1410C-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 10, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Eligibility, Question of
Appeal Board Case Number 107,744
VACATION PAY; SECTION 523 - $50
STATUTORY LIMITATION
Vacation pay is not
considered in determining the $50 statutory limitation for partial unemployment
benefits (Section 523).
Referee’s Findings of
Fact: A hearing was
held at which claimant and representatives of the Industrial Commissioner, the
employer and the union appeared and testified.
Claimant, a laborer, by
initial determination effective August 5 through August 11, 1963, was ruled
ineligible because he was on a paid vacation.
Claimant did not work in
the period from July 22 through August 11. For the week ending July 28, 1963,
he was paid $115.60 vacation pay. For the week ending August 4, 1963, he was
paid $115.60 for vacation pay. For the period beginning August 5 claimant was
paid 20 hours of vacation pay or $58.80.
The parties concede that
the employer notified the workers in advance of the vacation period. The
commissioner’s representative contends that since Claimant received in excess
of $50 vacation pay for the period August 5 through August 11 he is ineligible
for benefits.
Referee’s Opinion and
Decision: A similar
situation where a worker was paid vacation pay for three days in a week and the
amount of the vacation pay exceeded $50 was considered in Appeal Board
100,965A. There the Board refused to follow the commissioner’s argument that
vacation pay exceeding $50 rendered a worker ineligible. The Board said,
"Accordingly we conclude that since claimant was unemployed on four days
in the week ending July 22 for which days he received no vacation allowance she
is entitled to be credited with one effective day despite the receipt by her of
a payment in excess of $50 which payment was made on the basis of an accrued
contractual right rather than as compensation for days of employment in that
week." While the provisions governing eligibility during paid vacations
have been amended, I find nothing in the new provisions which would lead to a
contrary conclusion. I, therefore, follow the decision of the Board as cited
above. The initial determination is overruled.
Appealed By: Industrial Commissioner
Appeal Board Opinion and
Decision: After a
review of the record including testimony and evidence adduced before the
referee and due deliberation having been had thereon, and having found that the
referee’s findings of fact and opinion are fully supported by the record, and
that no errors of fact or law appear to have been made, the Board adopts the
findings of fact and the opinion of the referee as findings of fact and the
opinion of the Board. The decision of the referee is affirmed. (December 27,
1963)
COMMENTS
This principle is
self-explanatory and will also apply to holiday pay.
Index No. 1460A-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 22, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Vacation Period
Appeal Board Case Number UCFE-1196
FEDERAL EMPLOYEES; VACATION PERIOD –
TERMINAL LEAVE PAYMENTS
Lump-sum "terminal
leave" payments to a Federal civilian employee, even if given with
reference being made to a specific period of time following separation, do not
represent the designation of such time as a "paid vacation period"
within the meaning of Section 591.3.
Referee’s Decision: The initial determination of the
local office holding claimant, a former federal employee filing for
unemployment compensation benefits under Title XV of the Social Security Act,
as amended, ineligible to receive benefits effective May 28, through August 15,
1963 on the ground that such period was a paid vacation period for which no
benefits are to be paid is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: We have reviewed the evidence as
adduced at the hearing before the referee and we find that such evidence amply
supports the following findings of fact made by the referee:
"Claimant
worked as an inspector for a Federal agency in
In a supplemental report
the agency reported as follows:
"Mr.
O.O. was officially separated from employment at this depot on 27 May 1963 for
failure to accompany his activity to
Board’s Opinion and
Decision: Since the
referee has written a well-reasoned opinion, the Board adopts it as the opinion
of the Board as follows:
"Section
591.3 of the Law as amended, provides that no benefits shall be paid to a
claimant for any day during a paid vacation period. The term ‘vacation period’
is defined as "The time designated for vacation." A paid vacation
period is further defined as a vacation period for which a claimant is given a
payment or allowance by the employer "even if such payment or allowance is
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."
The Referee is bound by the
findings of the federal agency which are deemed final conclusive. However, the
question is how the findings are to be applied insofar as Section 591.3 is
concerned.
Section
609.5 of the Federal Regulations to implement the Unemployment Compensation for
Federal Civilian Employees Program under Title XV of the Social Security Act
"Lump-sum terminal annual leave payments shall not be allocated by the
Federal Agency but shall be allocated as provided in Section 610.3(b)…of this
chapter."
Section
610.3(b) provides:
"Lump–sum
terminal annual leave payments shall be allocated in the same manner as similar
payments to employees of private employers under State Law. In those states in
which a private employer has an option as to the period to which such payments
shall be allocated, they shall be deemed to have been allocated to the date of
separation from employment, unless failure of the employer to allocate will
result in allocation to a period prior to the employee’s separation from his
employment, in which even the allocation shall be made by the State agency as
in the case of such failure by the employer to allocate."
The
Bureau of Employment Security of the United States Department of Labor, in its
Unemployment Insurance Program Letter No. 572 dated September 12, 1960, stated:
"We
informed the State agencies in Unemployment Insurance Program Letter No. 558,
dated April 29, 1960, that Federal agencies will continue to report on Forms ES-931
lump-sum terminal leave payments in the period subsequent to separation as they
have in the past. Such reporting of lump-sum terminal leave is not an
allocation since, with repeal of section 1505, Federal agencies no longer are
responsible for allocation of lump-sum payments of terminal leave but such
leave is to be allocated in accordance with State law.
…The
question has been asked as to whether the terminal leave period reported in
item 3a of Form ES-931 amounts to a designation by the United States (as an
employer), of the period to which such leave is to be allocated in accordance
with the provisions of State law in States which permit employer designation of
the period covered by terminal leave. The answer to this question is:
For
the purpose of those state agencies whose laws permit employer designation of
the period covered by terminal leave payments, the United States (as an
employer) considers that Federal wages represented by lump-sum terminal leave
payments are allocated to the date of separation from Federal service, as shown
in item 3b on Form ES-931, and not to be a period subsequent to the date of
separation from employment (unless failure of the employer to allocate will
result in allocation to a period prior to the employee’s separation from his
employment, in which even the allocation shall be made by the State agency
under its law)."
From
the foregoing, it appears that the finds of the employing agency respecting
claimant’s receipt of a lump-sum terminal leave payment are inapplicable to
Section 591.3 of the Law. Accordingly, sine the lump-sum terminal leave payment
herein has not been allocated to a period subsequent to the date of separation
from employment and since therefore, there is necessarily absent a designation
by the employer of a vacation period as required by Section 591.3 of the Law,
claimant was not on a paid vacation period during the period under review and
is not ineligible for benefits by reason thereof."
The initial determination
of the local office is overruled. The decision of the referee is affirmed.
(January 13, 1964)
COMMENTS
This new principle pertains
only to civilian Federal employees and supersedes any prior conflicting
instructions.
As indicated by the Board,
lump—sum terminal leave payments reported on Form ES-931 by the United States
(as an employer) are allocated to the date of separation from Federal Service.
Index No. 1460A-8
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 27, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Appeal Board Case Numbers 105,581 and 106,728 et al
PAID VACATION, QUESTION OF;
TERMINATION OF EMPLOYMENT
The employer’s allocation
of vacation pay to a period following termination of employment is insufficient
to establish a "paid vacation period" within the meaning of Section
591.3 when a specific time for vacation was neither agreed upon nor designated
by advance announcement to the employee. (A.B. 105,581)
An oral designation
on the last day of work does not satisfy the statutory requirement.
(A.B. 106,728)
Appeal Board Decision 105,581
Referee’s Findings of
Fact: A hearing was
held at which claimant and a representative of the Industrial Commissioner
appeared and testified.
By initial determination
effective May 20 to May 26, 1963, inclusive, claimant, a fur blender, was ruled
ineligible because of lack of total unemployment.
Claimant has worked for the
employer for 15 years. He is a member of a union, which is in contractual
relations with the employer. He earns $115.50 for a five-day, 35-hour week. The
collective bargaining agreement provides for vacation periods at the election
of the employer from June to September. On May 10, claimant was laid off
indefinitely. He was paid for his services to that date and an additional
amount of $115.50, which he was told, was for vacation. No time was designated
by the employer for vacation either orally or in writing. The employer made
entries in its books to reflect payment for vacation purposes for the week May
20 to May 26. This was unknown to claimant. He was recalled to work on May 27.
Referee’s Opinion and
Decision: The facts
are not in dispute. Claimant was laid off for an indefinite period on May 10
and given an additional week’s salary directly by the employer which was
designated broadly as vacation. No period of time was specifically allotted for
the vacation. The pertinent provisions of the Unemployment Insurance Law is as
follows [Section 591.3(a)]:
"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."
Claimant was totally
unemployed within the meaning of the Law for the period in issue. The statute
provides for ineligibility for a specified period designated as a vacation in
advance for which payment is made directly by the employer to the employee. The
element of specified period is totally lacking here. Claimant was laid off for
an indefinite period on May 10.
The initial determination
is overruled.
Appealed By: Industrial Commissioner
Appeal Board Opinion and
Decision: After a
review of the record including testimony and evidence adduced before the
referee and due deliberation having been had thereon, and having found that the
referee’s findings of fact and opinion are fully supported by the record, and
that no errors of fact or law appear to have been made, the Board adopts the
findings of fact and the opinion of the referee as the findings of fact and the
opinion of the Board. (Compare with Appeal Board 106,728). The decision of the
referee is affirmed. (December 19, 1963)
Appeal Board Decision 106,728
Referee’s Decision: The initial determinations of the
local office holding claimants ineligible to receive benefits effective July 1
through July 7, 1963, on the ground that such period was a paid vacation period
for which no benefits are to be paid are overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimants, knit-goods workers, are
employed in the same establishment. On Friday, June 28, 1963, they were
informed orally by their foreman that the plant was to be closed during the
following week for machinery repairs. They were told to return to work on July
8, which each did.
Claimants are members of a
union, which is in contractual relations with the employer. The collective
bargaining agreement provides that an annual vacation allowance equal to one
week’s pay was to become payable at the end of the contract year on the pay day
immediately preceding July 15 of each year. However, no vacation period was
designated in the contract, nor was there any agreement between the employer
and the claimants, their union or their representatives concerning the
designation of a vacation period. The employer did not designate the week here
in issue as a vacation period nor did it announce to its employees in advance
thereof that such week had been designated as a vacation period. In accordance
with the union contract, claimants were paid the vacation allowance to which
they were entitled on July 11, 1963.
Appeal Board Opinion and
Decision: The
Industrial Commissioner contends that the foreman’s statement of the plant shut
down for machinery repairs made orally on June 28, the day immediately
preceding the shut down of the plan, was sufficient advance designation and
announcement to constitute the period July 1 through July 7 as a paid vacation
period during which claimants were not eligible for benefits.
Section 591.3 of the
Unemployment Insurance Law which was added to Chapter 794 of the Laws of 1963
and became effective April 26, 1963, reads as follows:
(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 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.
The week here at issue does
not constitute a paid vacation period within the aforesaid provision of the Law
because it does not fall within the definition specifically set forth in
paragraph (b) above. This period was not designated for vacation purposes
either in the collective bargaining agreement or by agreement between the
employer and the claimant, their union or their representatives, nor did the
employer designate in writing and announce to the employees in advance that
such week was to be considered a vacation agreement. On the contrary, the
employer specifically indicated that claimants would be temporarily laid off
during that week because operations would be suspended for the purpose of
making machinery repairs.
The case cited by the
Industrial Commissioner (Appeal Board 100,658), to support his contention that
the oral statement by the foreman given to claimants herein on June 28 was
sufficient to constitute a designation and advance announcement of a vacation
period is not apposite. In that case, about two weeks before the shop shut down
date, the employer gave oral notice to the shop chairlady that the shop would
be closed for vacation purposes, and the employees were so advised by the
chairlady and the union and employees acquiesced to such designation. In the
instant case, the employer did not give any prior notice of the "vacation
period." An oral statement by the employer on the last day of work does
not constitute a designation in advance within the meaning of the statute,
(Appeal Board 100,013).
Accordingly, we conclude that
the week in issue was not a paid vacation period for which claimants were
ineligible to receive benefits.
The initial determinations
of the local office are overruled. The decision of the referee is affirmed.
(November 25, 1963)
COMMENTS
These two decisions present
important principles and supersede any prior conflicting instructions. A
claimant is not rendered ineligible for benefits by receipt of vacation pay
upon layoff when the employer, unilaterally, allocates the vacation pay to the
period following separation (or any other period) by payroll entries, reports
to the local office, or in some other manner, without advance communication
thereof to the claimant.
Similarly, ineligibility
will not result when the only notice to the employee of a vacation designation
is an oral statement by the employer on the last day of
employment.
On the other hand, the
decision implies that ineligibility will result when there is an expressed
agreement between the employer and the employee regarding the time for vacation.
Such agreement can, of course, be oral and need not predate the last day of
work. The Appeal Board also adheres to its former decision (A-750-1596; A.B.
100,658) holding that the statutory requirement is satisfied when in advance of
the last day of work there is an oral designation to which the employees
acquiesced, that is to say, against which no protest was made.
Index No. 1195-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 31, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
MISCONDUCT
Criminal Acts
Appeal Board Case Number 108,554A
CRIMINAL ACT DISQUALIFICATION,
QUESTION OF: PLEADING GUILTY TO REDUCED CHARGE
Claimant was properly
disqualified for loss of employment because of a criminal act when he had
signed a statement admitting the commission of an act which constitutes a
felony even though he subsequently pleaded guilty to a reduced charge of a
misdemeanor.
Referee’s Decision: The initial determination of the
local office holding claimant eligible to receive benefits effective May 6,
1963, without disqualifying conditions and overruling the employer’s objections
to payment of benefits to claimant on the ground that he lost his employment by
commission of an act constituting a felony in connection therewith is affirmed.
Appealed By: Employer
Findings of Fact: Claimant worked for the objecting
employer as a commissary porter for approximately five years until January 27,
1963, when he was discharged for misappropriating merchandise belonging to said
employer. Although originally indicted for the felony of grand larceny,
claimant pleaded guilty to a reduced charge of a misdemeanor, petit larceny.
On January 27, 1963,
claimant signed a statement wherein he admitted that he had stolen merchandise
belonging to the employer valued at approximately $250 with the intention of
selling the merchandise and retaining the proceeds for his own use. The stolen
merchandise actually cost the employer $148.87.
Claimant had subsequent
employment, which terminated prior to his filing a claim for benefits effective
May 6, 1963. He received nine benefit payments through July 14, 1963.
Appeal Board Opinion and
Decision: The
credible evidence now before the Board establishes that on January 27, 1963,
claimant signed a statement admitting that he committed an act which
constitutes grand larceny, which is a felony under the Penal Law of this State.
Since claimant lost his employment as a result of his felonious act in
connection with his employment, and the signed statement admitting such act has
been produced, claimant may not be credited with any days of total unemployment
within twelve months after January 27, 1963. Accordingly, claimant was
ineligible for benefits throughout the period here at issue and hence he was
overpaid all benefits received by him. Under the plain mandate of Section 593.4
of the Law, the conclusion is compelled that claimant lacked good faith in
accepting the benefits and, consequently, the overpayment is recoverable.
The employer’s application
to reopen and reconsider the decision of the Board filed November 14, 1963
(Appeal Board, 106,605), is granted and the said decision is hereby rescinded.
The initial determination
of the local office is overruled. The employer’s objection is sustained and
claimant may not be credited with any days of total unemployment within twelve
months after January 27, 19633. The decision of the referee is reversed.
(January 20, 1964)
COMMENTS
Section 593.4 of the Law on
Criminal acts states:
"No
days of total unemployment shall be deemed to occur during a period of 12
months after a claimant loses employment as a result of an act constituting a
felony in connection with such employment, providing the claimant is duly
convicted thereof or has signed a statement admitting that he has committed
such an act."
The Board found that
"the credible evidence now before the Board establishes that ***claimant
signed a statement admitting that he committed an act which constituted grand
larceny, which is a felony under the Penal Law of this State." The fact
that he was eventually not convicted of a felony but only a misdemeanor was
held not to have any bearing on the result in view of his signed statement
admitting the act.
Index No. 1460C-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February 11, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Vacation Pay
Appeal Board Case Number UCFE 1178
FEDERAL EMPLOYEE LIQUIDATING ANNUAL
OR TERMINAL LEAVE WITH PAY
If a federal employee is on
terminal leave status but the federal agency finds that he is not separated
from federal services until such leave is liquidated, he is not totally
unemployed and, therefore, not eligible for benefits during the period of such
terminal leave.
Referee’s Decision: The initial determinations of the
local office holding claimants ineligible to receive benefits effective July 1
through August 30, 1963 and July 8 through August 30, 1963, respectively, on
the ground that they were not totally unemployed, or in the alternative, that
such periods were paid vacation periods for which no benefits are payable are
overruled.
Appealed By: Industrial Commissioner
Findings of Fact: The claimants herein were employed
as grain fleet workers by the United States Department of Agriculture at a
"mothball fleet" stationed in the Hudson River. Their last day of
active duty with the Federal agency was June 28, 1963. Thereafter, they went on
terminal leave status until August 30, 1963, at which time they were formally
separated from government service because of a reduction in force as reported
by the Federal agency. While on terminal leave, each claimant continued to
receive his salary every two weeks until the leave which each had accrued was
exhausted. The last day for which claimant J.N. received pay was August 21,
1963 and in the case of claimant W.T.L., August 12, 1963.
Appeal Board Opinion and
Decision: The
evidence establishes that the claimants remained on the government payroll and
continued to receive their wages bi-weekly through August 21 and August 12,
1963, respectively. They were not totally unemployed during such periods
despite the fact that they were under no obligation to render service to the
government beyond June 28, 1963 (See Matter of Blitz, 302 N.Y. 573,
affirming 275 App. Div. 1015, reversing Appeal Board, 18,942). Accordingly, we
hold that claimant J.N. was not totally unemployed at least through August 12,
1963. In view of the foregoing, it is unnecessary to decide whether such
periods were paid vacation periods.
The initial determination
of the local office holding claimant J.N., ineligible to receive benefits
effective July 1 through August 30, 1963, on the ground that he was not totally
unemployed, is modified to be effective July 1 through August 21, 1963 and, as
so modified, is sustained.
The initial determination
of the local office holding claimant W.T.L., ineligible to receive benefits
effective July 8 through August 30, 1963, on the ground that he was not totally
unemployed, is modified to be effective July 8 through August 12, 1963 and, as
so modified, is sustained. The decisions of the referees are reversed. (January
31, 1964)
COMMENTS
This case and its rule must
be distinguished from the more common situation where a federal employee
receives a lump-sum so-called "terminal leave" payment but is
separated from federal service prior to the period "covered" by that
payment. Under such circumstances, the claimant is totally unemployed and,
as stated in Release A-750-1604 a terminal leave payment does then not reflect
a paid vacation period."
Similarly, the here
reported decision is generally not applicable to instances where
vacation pay is received upon separation from other employment. Separation from
other employment, under prevailing practices, is effective immediately and,
therefore, the question whether there is a paid vacation period must be
determined under Section 591.3 on ""Paid Holiday and Vacation Periods.""
Index No. 1722-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February 24, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Distance
Appeal Board Case Number 109,386
VOLUNTARY LEAVING AFTER WORKING AT
NEW LOCATION; DISTANCE
Claimant, transferred to a
new location requiring two hours travel each way, who tried working under the
new conditions for one and one-half months but found them too difficult,
quit with good cause since employment under the changed conditions was not for
a substantial period of time so as to be deemed accepted permanently. (Matter
of Sellers, A-750-1550, not applicable)
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective September
25, 1963 on the ground that she voluntarily left her employment without good
cause is sustained.
Appealed By: Claimant
Findings of Fact: Claimant was employed as a kitchen
steward in the commissary of an airlines company for about two and one-half
years until September 24, 1963. From the inception of her employment to August
1, 1963 she worked at New York International Airport located in Queens where
claimant resides. Thereafter she was "bumped" out of her job and was
transferred to Newark Airport in New Jersey. As a result of such transfer
claimant was compelled to travel about two hours each way from her residence to
her new place of employment. Claimant tried working under these new conditions
for about one and one-half months, but found that the excessive travel was too
difficult for her. Because her employer would not transfer her back to New
York, she terminated her employment on September 24, 1963.
Appeal Board Opinion and
Decision: Section
593.1 of the Unemployment Insurance Law provides that a voluntary separation
from employment shall not in itself disqualify a claimant if circumstances have
developed in the course of such employment that would have justified the
claimant in refusing such employment in the first instance. Section 593.2 of
the Law provides that a claimant has good cause to refuse employment if it is
at an unreasonable distance from his residence. The evidence herein establishes
that these mentioned statutory conditions have been met. Claimant did not
continue working under the changed conditions for a substantial period of time
so as to be deemed to have accepted permanently the change in her working
conditions and to have waived whatever valid objections she might have originally
had. Claimant tried working at the new location for a sufficient period to
prove that it was not such as she could accept. Accordingly, we hold that
claimant had good cause to leave her employment within the meaning of the Law.
The initial determination
of the local office is overruled. The decision of the referee is reversed.
(February 11, 1964)
Index No. 1325-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
May 27, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
Termination of
COURT OF APPEALS DECISION
Matter of William S. George, et al
Appeal Board Nos. 68,848 thru 68,855
QUESTION OF INDUSTRIAL CONTROVERSY
TERMINATION DATE
Industrial controversy
suspension, although it originated with a nationwide labor dispute affecting
the several establishments of an integrated industrial enterprise, terminates
with respect to a given establishment within such enterprise when there is an
agreement settling all issues of the dispute in relation to such establishment,
even if the dispute has not been settled for other establishments and
regardless of the interdependency of the establishments resulting in continued
unemployment due to the lack of essential parts or other reasons connected with
the controversy.
COURT OF APPEALS DECISION
This controversy arises out
of a nationwide strike of the General Motors plants called by the United
Automobile Workers on October 2, 1958. Although the nationwide strike was
settled by agreement within 24 hours, the national settlement allowed the
various local unions to continue striking in support of negotiations on local
issues.
Claimants here are
employees at five General Motors plans in New York at which settlements of the
strike continued by the various local unions were reached on different dates.
The settlement and ratification dates are as follows:
|
Plant |
Date of local agreement |
Date of local ratification |
|
Chevrolet-Tonawanda * |
October 15 |
October 17 |
|
Foundry |
October 27 |
October 27 |
|
Forge |
October 27 |
October 28 |
|
Chevrolet Buffalo |
October 12 |
October 13 |
|
Harrison radiator - Lockport |
October 5 |
October 19 |
|
--West Lockport |
October 5 |
October 19 |
|
--Buffalo |
October 22 |
October 22 |
* The Tonawanda settlements
are charted as a single establishment for reasons to be stated later.
Full employment in each
plant was not resumed, however, until some time after the various settlements.
In some instances recall was almost immediate but layoffs ensued thereafter
because of lack of parts from plants still on strike. In some instances, recall
itself was delayed. It was not until November 3 that full employment was restored
through the nation. The instant claims are for unemployment benefits from the
date of the local settlement in each claimant’s plan to the date when each
claimant was recalled to employment.
The controlling statute is
New York Labor Law, section 592, subdivision 1:
"Industrial
controversy. The accumulation of benefit rights by a claimant shall be
suspended during a period of seven consecutive weeks beginning with the day
after he lost his employment because of a strike, lockout or other industrial
controversy in the establishment in which he was employed, except that benefit
rights may be accumulated before the expiration of such seven weeks beginning
with the day after such strike, lockout or other industrial controversy was
terminated."
It is appellants’
contention that the lifting of the seven-week suspension of benefits provided
for in the last phrase of section 592, subdivision 1, takes place on the date
of each local settlement and ratification. The Unemployment Insurance Appeal
Board so held. The Appellate Division reversed this determination, holding that
the continued unemployment after each local settlement date until actual recall
was not "involuntary." The court reasoned as follows:
"The
facts in the instant case are unprecedented. General Motors is a far flung
organization with 124 plants, widely separated geographically throughout the
United States, interdependent one upon the other, and each producing something
essential to a final finished product. When some of the plants are idle, others
must of necessity be idle. Claimants must have been fully aware of this when
they personally left their employment and initially participated in the strike.
Their unemployment during the period for which they have granted benefits was
the direct and inevitable consequence of the strike in which they joined. They
are not innocent victims of a situation wholly beyond their control, and their
unemployment may not be said to be involuntary (Matter of Machcinski [Corsi]
277 App. Div. 634)." (2084-5)
The Appellate Division was
correct insofar as it stated that the other issue is "the very narrow
question of when the strike or industrial controversy terminated within the
meaning of Section 592(1)", but erred, in our view, when it attributed a
vicarious voluntariness to the post-settlement unemployment on the ground that
the claimants ought to have foreseen the consequences of idleness in some
plants of an integrated industrial enterprise when they commenced the strike.
The statute in question expressly limits such considerations to single
"establishments." There can be little doubt that, under our cases,
delays caused by lack of parts and supplies from other idle plants is not part
of the termination of an industrial controversy in an establishment that has
settled its own controversy.
The denial of benefits
where unemployment results from a dispute "in the establishment in which
[the claimant] was employed" is strictly limited by Matter of Ferrara,
10 N.Y. 2d 1, to the geographic location of the employment regardless of what
the Appellate Division correctly recognized here as a highly integrated
nationwide industry (see also Matter of Machcinski, 277 App. Div. 634).
In the face of the Ferrara case it cannot be said that the several
plants involved in this case constitute a single establishment. The Appellate
Division avoided the establishment concept and simply regarded participation in
the nationwide strike to be an adequate predicate for a holding of voluntary
unemployment until all plants were again in operation. While statutes in other
states may be framed differently (United Steel Workers v. Board of
Review, 12 Utah 2d 136, 363 P 2d 1116), in this State participation in a
multi-establishment strike is not the criterion of an individual’s right to
unemployment benefits. As the Ferrara case shows, non-participants
within the same establishment are subject to the same suspension of benefits as
those who are engaged in the industrial controversy. So, conversely, employees
in an establishment in which no dispute exists, even though they were
participants in the initial multi-plant controversy, are not denied benefits
where their unemployment is traceable solely to a controversy in another
establishment. We hold that unemployment in one establishment that is due to
lack of essential supplies or parts from some other establishment idle because
of an industrial controversy qualifies for benefits under section 592,
subdivision 1, if the controversy in the former is terminated.
The second branch of this
appeal questions the Appellate Division’s affirmance of the Unemployment
Insurance Appeal Board’s determination that the motor plant, forge and foundry
at Tonawanda was one establishment. The controlling decision is Matter of
Ferrara, 10 N.Y. 2d 1, which held that geographic unity is the primary and
ordinarily decisive factor in determining the existence of an establishment
under section 592, subdivision 1. It is simply a question of applying the
standard to the physical plant at Tonawanda. This seems to us to be the sort of
question as to which the administrator's choice should be given great weight.
Although the three divisions are represented by different local unions of the
United Automobile Workers, with different collective bargaining agreements, the
facilities occupy a single tract of about 150 acres and are surrounded by a
single 6 foot steel fence. Each has separate personnel records and each has a
separate cafeteria.
On the other hand, they are
served by a single power house, water pumping station, sewage disposal, electric
and compressed air facilities. The administrative structure seems to tend to
separateness while physically and spatially it is more of a unit. Unless we are
to further refine the Ferrara standard as a matter of law – and there
would be great difficulty in generalizing further refinements – we must leave
the Appeal Board’s determination undisturbed.
Lastly, respondent argues
that the individual strike settlements cannot be regarded as terminating the
strikes in each establishment because of paragraph 118 of the national
collective bargaining agreement between General Motors and the International
Auto Workers, which states:
"The
Union has requested this National Agreement in place of independent agreements
for each bargaining unit covered hereby. Accordingly an authorized strike in
one bargaining unit under this Agreement which results in an interruption of
the flow of material or services to operations in any other bargaining unit
under this Agreement, will be considered an authorized strike in any such affected
bargaining unit."
It is argued that this
provision means that the strike settlements that were reached at each
establishment were without effect in settling the strike at such establishments
so long as the interruption in the flow of essential parts held up actual
operation. Cases such as Ford Motor Co. v. Huffman, 345 U.S. 330,
and Allis-Chalmers Mfg. Co. v. N.L.R.B., 213 F 2d 374, are
cited to show how the provisions of a collective bargaining agreement may
override inconsistent mandates of law. For instance, in Huffman, an
agreement dealing with veterans’ seniority rights was held binding even though
it derogated from the statutory rights of returning veterans as set forth in
Federal law.
Assuming arguendo that
the provision was intended to have the effect now argued by respondent, it
cannot do so under our law. Cases dealing with a conflict between a contract
and a statute covering conditions of employment are not controlling. The
statute may there be rightly regarded as controlling only in the absence of a
contrary agreement. Here, however, conditions of employment are not involved.
We are asked to hold that the benefits otherwise due the unemployed were
bargained away. In respect of social legislation designed to benefit those whom
the Legislature deems in need of assistance it is asking a great deal to have
us displace the legislative determination of the needy class to conform to a
prior private agreement – even though voluntarily entered into by those now in
need of help. Our law, defining the class entitled to benefits and the
conditions under which they are due, expressly recites that benefits shall be
accumulated before the expiration of seven weeks "beginning with the day
after such strike, lockout or other industrial controversy was
terminated"; and "terminated," under our statute, means a
ratified settlement within a given establishment, regardless of what the
national collective bargaining agreement considers to be an "authorized
strike" in such "affected bargaining unit." The sustenance due
the unemployed is not a fit subject of private waiver, whether through
collective bargaining or otherwise.
To summarize, we believe
that where an industrial dispute is in fact settled by agreement within the
unit defined by statute as an establishment, the policy of the statute is
called into play notwithstanding the national agreement’s characterization of
the continued work stoppage as "an authorized strike." The stoppage
is in fact due to disputed at other establishments, and labels notwithstanding,
that sort of reason for unemployment is not regarded by our law as a sufficient
cause for denying benefits.
The constitutional argument
raised by respondent is quite without merit. Laws pre-existing the formation of
a contract and limiting its effectiveness do not "impair its
obligation" within the constitutional prohibition (West Const. Hotel Co.
v. Parrish, 300 U.S. 379). As to the argument under the supremacy clause
(U.S. Const., Art. VI, par. 2) that section 592 invalidly regulates interstate
commerce, it is sufficient answer to say that the constitutionality of our
unemployment insurance law has been upheld (Chamberlin, Inc. v.
Andrews, 159 Misc. 124, affd. 271 N.Y. 1, affd. 299 U.S. 515; Standard
Dredging Co. v. Murphy, 319 U.S. 306) and the power to provide for
payment of benefits and taxation of employers must carry with it the power to
regulate, according to our own lights, eligibility for payments.
The order of the Appellate
Division should be modified by reversing so much thereof as reversed the
determination of the Unemployment Insurance Appeal Board and the determination
of the Board reinstated.
Order of the Appellate
Division modified by reversing so much thereof as reversed the determination of
the Unemployment Insurance Appeal Board and the determination of that Board
reinstated, with costs in this Court and in the Appellate Division, and as so
modified, order affirmed. Opinion by Burke, J. All concur except Van Voorhis,
J., who dissents and votes to affirm and Bergan, J., taking no part. (May 7,
1964)
COMMENTS
This decision stands for
the general principle that a strike suspension terminates when all issues are
settled by agreement even if recall of the claimant is delayed and the reasons
for such delay are attributable to the industrial controversy. This reinstates
interpretations, which prevailed before 1963.
Index No. 1460A-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 22, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Vacation Pay
Appeal Board Case Number 112,250
VACATION PERIOD; QUESTION OF
ANNOUNCEMENT IN ADVANCE
Where the employer, prior
to a vacation shutdown which was posted at the plant while the claimant was on
temporary lay-off, sent the claimant his vacation check whose stub stated the
period of the vacation, the statutory requirement of designation in writing and
announcement in advance is met.
Referee’s Decision: The initial determinations of the
local office holding claimant, an assembler, ineligible to receive benefits
effective August 5 through August 14, 1963, on the ground that such period was
a paid vacation period for which no benefits are paid and charging him with an
overpayment of $87.50 in benefits which is recoverable are sustained.
Appealed By: Claimant
Findings of Fact: Claimant, an assembler, was laid
off due to lack of work effective April 26, 1963 and was not recalled to work,
at least through September 15, 1963. In accordance with the provisions of the
collective bargaining agreement between claimant’s union and his employer,
claimant’s seniority was retained through the layoff period.
The collective bargaining
agreement provided for the payment of vacation allowances to the employees in
amounts measured by seniority but it did not specify the vacation period. Based
on claimant’s seniority he became entitled to a gross payment of $153.60 which
represented 60 hours of paid vacation time. Normally claimant worked a
five-day, 40-hour week.
Up to the time that
claimant was laid off in April the employer had not designated a vacation
period. On May 3, 1963, the employer designated the two-week period ending on
August 16, 1963 as the vacation period and it posted a notice in the
establishment advising the employees of such designation and of the fact that
the plant would be closed for vacation purposes during that period. Because
claimant was not at work at any time between May 3 when the notice was first posted
and the commencement of the designated vacation period, he had no opportunity
to see the posted notice. However, on July 1, 1963, claimant received from the
employer a check for $153.60 together with a stub attached thereto on which
there was endorsed the following:
"This
check represents 60 hours ( days) of vacation pay for the period of shutdown
for vacation – August 6, 1963 through August 16, 1963."
Appeal Board Opinion and
Decision: It is
contended on behalf of claimant that the period here at issue was not, for the
claimant, a paid vacation period for which claimant was ineligible to receive
benefits for the reason that the period was not designated and announced to
claimant in advance by the employer. In support of such contention it is argued
that the designation by the employer and the notice which was posted was
ineffectual as to the claimant because the posting and display of the notice
occurred while claimant was in a layoff status. On the facts here adduced the
contention so advanced lacks validity.
In Appeal Board #107,841,
we dealt with a similar situation involving the effect of the posting of a
notice during the time when employees were away from the plant because of a
layoff. We there pointed out that Section 591 of the Law requires as a condition
precedent to the ineligibility of the claimant, that the employer not only
designate the vacation period but additionally announce the fact of such
designation to the employees. Consequently, we held that no announcement of the
designation had been made to employees who were in layoff status and who were
not otherwise notified by the employer that it had made such designation. In
the instant case, however, the employer had announced to the claimant in
advance of the designated vacation period, that it had so designated the
period, which is here in issue. The written statement, which accompanied the
vacation payment which claimant received on or about July 1, 1963, constituted
a sufficient announcement to the claimant of the fact of such designation.
The fact that the claimant
was temporarily laid off prior to the commencement of the vacation period and
that such layoff continued until a date subsequent to the close of the vacation
period does not alter the fact that he was ineligible for benefits for the
period for which he received a vacation payment so long as the employer
designated the vacation period in writing and duly announced same. The statute
as amended by L 1963, C 794, specifically provides for a period of
ineligibility in the cases there provided for notwithstanding that the
employment may have been previously terminated. Accordingly, we conclude that
the claimant was ineligible to receive benefits for the period for which he was
paid since such period was a vacation period as contemplated by the provisions
of Section 591.
Although the initial
determinations which were issued herein fix the period of ineligibility as the
period beginning August 5, 1963 and ending August 14, 1963 and correctly
establishes an overpayment of $87.50 representing the voiding of four effective
days in the week ending August 11, 1963 and three effective days in the week
ending August 1, 1963, the notice of overpayment purports to indicate that four
effective days in the week ending August 19, 1963 were voided. Claimant was
eligible for partial benefits for one effective day in the week ending August
18, 1963 since the vacation period for which he was paid covered only three
calendar days in the week ending August 18, 1963. (See File A-710-10, Field
Operations Bureau – Interpretation and Review Section Manual.)
The overpayment of benefits
in the sum of $87.50 received by claimant is recoverable since it is
specifically mandated by the provisions of Section 597.4 of the Law that there
may be no waiver of the recovery of an overpayment where such overpayment
results from the retroactive payment of remuneration.
The initial determinations
as modified in accordance with the above are sustained. The decision of the
referee as herein modified is affirmed. (June 2, 1964)
Index No. 750C.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
August 13, 1964
INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Health
Appeal Board Case No. 113,369
and
APPELLATE DIVISION DECISION
Matter of John L. Roehsler
CAPABILITY, QUESTION OF;
SOCIAL SECURITY DISABILITY BENEFITS
The filing of an application for disability benefits under the Social Security Act or the receipt of such benefits does not constitute conclusive proof of incapability but may be treated as evidence in support of a factual determination of incapability.
Appeal Board Decision
The Industrial Commissioner
appeals from the decision of the referee filed April 30,1964, insofar as it
overrules the initial determinations of the Out-of-State Resident Office (1)
holding claimant ineligible to receive benefits effective October 14, 1963, on
the ground that he was not available for and no capable of employment and
charging him with an overpayment of $387.50 in benefits ruled to be not
recoverable and (2) holding the claimant ineligible to receive benefits
effective December 23, 1963, on the ground that he was not available for
employment, as modified by the referee to be effective January 3, 1964 only and
March 10 through March 21, 1964.
Findings of Fact: Claimant had worked as a truck
driver for about 35 years. He was compelled to abandon work in that occupation
in about September 1961 because he suffered a broken back and leg injuries. After
he made some recovery from the injuries he suffered, he worked intermittently
as a taxi driver between February 1962 and March 1963. On or about March 15,
1963, claimant again became disabled due to a coronary occlusion which he
suffered. He recovered from his disability sufficiently to enable him to engage
in sedentary or clerical work on and after October 12, 1963. He actually worked
as a telephone solicitor for one day but abandoned that work because excessive
travel time and considerable walking was involved to travel to that place of
employment. Since April 13, 1964, claimant has worked on a full-time basis as
an assistant manager of a restaurant.
Pursuant to the advice of
his physician that it would be advisable for him to reside in a warmer climate,
claimant went to Puerto Rico on December 22, 1963. His wife remained in New
York City and claimant continued to maintain his apartment there. Although he
made no inquiry in advance with respect to opportunities for work in Puerto
Rico, he maintained that he went to that area for the purpose of becoming
employed there. He established his resident in Puerto Rico at a point which
would have required travel for at least an hour to reach any possible labor
market. Moreover, opportunities for the procurement of work by claimant in
Puerto Rico were virtually non-existent because of claimant’s inability to
speak Spanish fluently. He submitted statements at the Puerto Rico local office
purporting to indicate a search for work by having allegedly visited one establishment
on each day. He indicated that he followed that pattern of seeking work because
he was advised that in Puerto Rico an applicant for benefits was required to
establish contact with one prospective employer a day. Claimant was unable to
qualify for a taxi driver’s license in Puerto Rico. Admittedly, claimant was
ill with a virus infection on January 3, and from March 10 to March 21, 1964,
and he was unable to work on those days.
Throughout the period here
at issue, claimant received disability benefits under the provision of the
Federal Social Security Act and he also received disability pension payments
from two local unions. He was paid unemployment insurance benefits aggregating
$387.50 for the period between October 21 and December 15, 1963 prior to the
issuance of the initial determinations here under review, and it was held that
although such payments constitute an overpayment, they are not recoverable.
Opinion: It is contended on behalf of the
Industrial Commissioner that since claimant received an accepted disability
benefits under the Federal social security program on the basis of his
certification that he was unable to engage in any substantial gainful
employment, he is necessarily ineligible for unemployment insurance benefits,
on the ground that he is incapable of employment within the provisions of the
Unemployment Insurance Law. The theory so advanced is without validity. (See Matter
of Roehsler, 19 App. Div. 2d, 927, reversing Appeal Board, 98,779). The
application for disability benefits under the Federal Social Security Act and
the receipt of benefits thereunder are evidentiary matters, but do not
constitute conclusive proof of incapability under the provisions of the
Unemployment Insurance Law. This is especially true, since the Social Security
Act encourages the resumption of work by recipients of disability benefits, in
that the Act specifically requires a recipient for such benefits to submit to
vocational rehabilitation. Moreover, the Act provides for the continuance in
the payment of disability benefits notwithstanding that the recipient thereof
engages in employment for a period of time while receiving such benefits
(Section 222 of the Federal Social Security Act, as amended).
In the instant case, the
proof adduced establishes that claimant was not totally prevented, by reason of
his disability, from engaging in some employment. On the contrary, it has been
established that claimant is physically capable of engaging in various types of
sedentary work. The procurement of work by claimant confirms that fact.
Accordingly, we conclude that except for January 3, and from March 10 through
March21, 1964, when the specific illness for which claimant suffered prevented
him from working, he was capable of employment.
Until claimant left New
York City to go to Puerto Rico, he established his availability for work by
presenting himself for employment wherever he believed work, which he could
perform, was available. Similarly, after claimant returned to New York City
from Puerto Rico, he again established his availability for work. However,
while claimant was in Puerto Rico, he effectively withdrew from the labor
market. While claimant may have acted in the interest of his health in
temporarily moving to Puerto Rico, his failure to make advance inquiries with
respect to opportunities for work in that area indicate the lack of a real
desire to become there employed. This is especially true in view of claimant’s
inability to speak fluently the language of the Island. Claimant’s alleged
search for work while in Puerto Rico fails to demonstrate the exercise of real
diligence. It appears that he attempted to make a formal compliance with what
he believed was required of an applicant for benefits in Puerto Rico rather
than to actually procure work. If, in truth, claimant was desirous of becoming
employed, he would not have remained in Puerto Rico for almost four months
after having learned soon after his arrival in that area that there were
virtually no opportunities for his employment.
In view of the foregoing,
we conclude that claimant was unavailable for employment from December 22, 1963
through April 3, 1964, and that except for such periods, he was available for
an capable of employment. Since claimant was available for and capable of
employment from October 21, 1963 through December 15, 1963, the benefits of
$387.50 which he received for that period, do not constitute an overpayment.
Decision: The initial
determinations of the Out-of-State Resident Office holding claimant ineligible
for benefits on the ground that he was not available for an not capable of
employment effective October 14, 1963 and charging him with an overpayment of
$387.50 in benefits ruled to be not recoverable, is overruled.
The initial determination
of the local office holding claimant ineligible to receive benefits effective
December 23, 1963, on the ground that he was not available for employment is
modified to the extent that it is held that claimant was unavailable for
employment effective December 23, 1963 through April 3, 1964 and as so
modified, the said initial determination is sustained. The decision of the
referee is modified accordingly. (August 3, 1964)
COURT DECISION
It seems clear that
claimant was uncertain whether his respiratory condition, which greatly
restricted his physical activities but not, necessarily, some self-employment
in work upon promotional ideas and programs, was of such a nature as to
disqualify him from unemployment insurance benefits (Labor Law, §527, subd. 1,
par. [a]; §591, subd. 2) and whether, if it was, it was so serious as to
entitle him to disability benefits from the Federal Social Security
Administration (see U.S. Code, tit. 42, §423). In this quandary, claimant made
application to both agencies and it is undisputed that he did so without concealment
or intent to defraud. Indeed, claimant requested the Social Security
Administration to make available to the Industrial Commissioner the medical
data compiled in his case, but this the Administration refused to do.
In this case, claimant’s
application to the Social Security Administration might properly have been
treated as evidence supportive of a factual determination of disability and
consequent disqualification; but we are unable to determine whether the board gave
the application that effect or whether the decision is to be construed as
embodying the legally erroneous holding that the mere filing of the application
established disability and consequent disqualification from unemployment
insurance benefits as a matter of law (cf. Matter of San Filippo v. San
Filippo, 17 A.D. 2d 1019, mot. For lv. to app. den. 12 NY 2d 645; Neel
v. Ribicoff, 204 F. Supp. 914; Johnson v. Flemming, 188 F. supp.
477; Thompson v. Flemming, 188 F. Supp. 123).
Remittal being necessary in
any event, claimant should have a further opportunity to present medical
evidence; particularly so because, in the course of a colloquy on that subject,
he was not informed that the legal burden to do so was upon him.
COMMENTS
This decision is self-explanatory. Release A-750-1579 is now obsolete and should be so marked).
Index No. 1460B-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September 10, 1062
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without
Appeal Board Case Number 115,194A
INCREASED HOURLY RATE INSTEAD OF
HOLIDAY PAY
Employees who merely
receive a specified sum above their normal hourly rate of pay for each hour of
actual work during a holiday week are not paid for the holiday and, therefore,
such day is not a "paid holiday" within the meaning of Section 591.3
of the Law.
Appellant: The Industrial Commissioner
applies, pursuant to Section 534, of the Law, to reopen and reconsider the
decision of the Board filed June 16, 1964 (Appeal Board 112,670; 112,671),
affirming the decision of the referee filed April 1, 1964, overruling the
initial determinations of the local office holding claimant, S.M.D. ineligible
to receive benefits effective November 2, 1963, only, and claimant G.J.W.
ineligible to receive benefits effective December 25, 1963, and January 1,
1964, only, on the ground that such days were paid holidays for which no
benefits are to paid and, charging claimant S.M.D. with an overpayment of $11
in benefits ruled to be recoverable and charging claimant G.J.W. with an
overpayment of $13 in benefits ruled to be recoverable.
Findings of Fact: The following findings of fact
made by the referee are not disputed and are hereby adopted as the findings of
fact of the Board:
By
initial determination effective November 28, 1963, only, the benefits of
claimant S.M.D. were suspended because the period constituted a paid holiday.
She was charged with an overpayment of $11.
By
initial determination effective December 25, 1963 and January 1, 1964, the
benefits of claimant G.J.W. were suspended because she also was on paid
holidays. She was charged with an overpayment of $13.
Both
claimants were employed as regular part-time workers for a large grocery chain
store.
Claimant
S.M.D. worked November 27, 29 and 30, a total of 16 hours. Claimant G.J.W.
worked December 24 and 26, a total of 12 hours, and the following week she
worked January 2 and January 4 again for a total of 12 hours.
Each
of the claimant’s was paid her regular hourly rate of pay plus 40 cents per
hour worked. The 40 cent premium was added to the hourly rate by virtue of the
provisions of a bargaining agreement which provided that those part-time
workers who were called upon to work during certain recognized holiday weeks
would be paid an additional 40 cents per hour. Thus, the bonus payments became
part of the wages paid for the weeks containing the holidays.
Claimant,
S.M.D. claimed benefits for November 28, 1963, and received $11 for such day.
Claimant G.J.W. claimed benefits for December 25, 1963, and January 1, 1964,
and received $13 in total benefits for those days. Each called the attention of
the clerks with whom they certified to the bonus pay arrangement.
To the foregoing, we add
the following findings of fact. In the collective bargaining agreement entered
into between claimants’ union and their employer, it was stipulated in Article
17 thereof as follows:
New
Year’s Day
Independence
Day
Thanksgiving
Day
Memorial
Day
Labor
Day
Christmas
Day
During
a week in which a recognized holiday occurs or is observed, full time employees
shall be scheduled to work forty (40) hours and, in addition, shall be paid
eight hours straight time pay for the holiday, provided the employee works the
scheduled day before and the scheduled day following the holiday.
* * *
Opinion: Under the provisions quoted above,
it is clear that employees who worked full-time were entitled to a day’s pay
for each of the holidays enumerated. Since such payments were allocable to the
holidays mentioned, the employees who received such holiday pay were not
totally unemployed on the enumerated holidays (Section 591.3 of the Law).
However, the claimants, herein
were employed as regular part-time workers. Under the provisions of the
collective bargaining agreement claimants were not entitled to receive any
holiday pay as such. Instead they were paid 40 cents in addition to their
regular hourly rate for each hour they actually worked during a week in which a
holiday occurred. Unlike the full-time employees who received a full days pay
for holidays in addition to their regular week’s pay, the claimants herein
received no pay for the holidays, but only a higher hourly rate of pay for the
time they actually worked. Under such circumstances it cannot be said that the
additional 40 cents per hour for time actually worked have any relationship to
holiday pay. Therefore, we conclude that the claimants were not paid for the
holidays and were totally unemployed on the holidays in issue, within the
meaning of Section 591.3 of the Law and were not overpaid in benefits.
Decision: The industrial Commissioner’s
application to reopen and reconsider the Board’s decision filed June 16, 1964
(Appeal Board, 112,670; 112,671), is granted and said decision is hereby
rescinded.
The initial determination
of the local office, in each case, are overruled. The decision of the referee
is affirmed. (August 27, 1964)
Index No. 915B-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
September 11, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Benefit Rate Deductions – Pension
Appeal Board Case Number 113,865
BENEFIT RATE REDUCTION – PENSION
Where claimant in
accordance with an elected option withdraws all of his contributions and
accrued interest from an employer’s pension plan and thus receives a pension
100% financed by the employer, the benefit rate is reduced by the total
prorated weekly pension amount (Section 600 of Law).
Referee’s Decision: The initial determination of the
local office reducing claimant’s benefit rights to zero under Section 600 of
the Unemployment Insurance Law on the ground that claimant received retirement
payments under a plan to which the employer was the sole contributor is
overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, an administrative
assistant, worked 36 years for the employer until February 28,1964. Her
employment came to an end because she was compelled to retire at age 65, in
accordance with the employer’s retirement policy.
Beginning in 1954, the
employer instituted a retirement plan under which claimant was required to
contribute a percentage of her salary. Claimant contributed to the plan. The
employer likewise contributed for claimant’s benefit. Under the retirement plan
claimant’s pension was determined by a formula which took into consideration a
percentage of her salary and the number of years she was employed. Claimant was
entitled to elect one of several options at the time of her retirement. She
elected the option permitting her to withdraw all of her contributions to the
plan, together with credited interest thereon in a lump sum and to receive a
pension based only on the employer’s contribution to the plan.
At her retirement claimant
withdrew her contribution and interest totaling $4,006.85, and the employer
purchased an annuity sufficient to provide the amount of pension claimant was
entitled to receive under the option she elected under the plan. Claimant’s
monthly pension amounts to $297.33. Such annuity was purchased with the funds
which the employer alone had contributed to the plan together with additional
funds contributed solely by the employer at the time of the retirement to
produce the required pension.
Appeal Board Opinion and
Decision: The
record establishes that after claimant withdrew all of her contributions and
credited interest in accordance with her election under the retirement plan,
the sole source of the money used to purchase the annuity to provide a pension
for the claimant was the contribution made by her employer. Since claimant was
retired from her employment and due to such retirement is receiving a pension
wholly financed by her employer, pursuant to an established plan, claimant’s
benefit rate must be reduced by the entire amount of her monthly pension of
$297.33 prorated weekly (Section 600.3 of the Law). Having withdrawn all of the
contributions which the claimant had made prior to her retirement and having
relied upon the funds contributed entirely by the employer to provide the
pension which she receives, claimant cannot support her claim that the pension
she receives is based at least in part, on her contributions to the plan under
which the pension is paid.
The initial determination
of the local office is sustained. The decision of the referee is reversed.
(September 2, 1964)
Index No. 1315-11
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
October 8, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONROVERSY
In the Establishment
APPELLATE DIVISION DECISION
Matter of Lessner, 36 AD 2d 1
Appeal Board Case Number 115,384
OPERATING OFFICE FOR VESSELS ON
PIERS WHERE LONGSHOREMEN WORK
Members of the crew of a
vessel and longshoremen engaged in the loading or unloading of the vessel are
employed in the same "establishment" (Section 592.1 U.I. Law) if both
are employees of the same employer and if the operating office for the vessel
is maintained at a terminal located on piers where the longshoremen are so
engaged.
Referee’s Findings of
Fact: Combined
hearings were held at which many of the claimants, officials and
representatives of the unions of which some claimants were members, the
attorneys for several unions to which many of the claimants belonged,
representatives and witnesses for many of the employers, attorneys for many of
the employers and for an association of employers and a representative of the
Industrial Commissioner appeared. Extensive testimony was taken. Briefs
submitted on behalf of many of the claimants and employers were also
considered.
A stipulation was entered
into that the final decision on the test cases, involving the claimants herein,
be binding as to other employees of the U.-Lines, similarly situated with
respect to the sole issue of whether those claimants should be suspended
because of loss of employment because of a strike, lockout or other industrial
controversy in the establishment in which they were employed, subject to the
right of individual appeal to any claimant from an adverse decision. Similar
stipulation was entered into with respect to G. Line.
All of the claimants had been
ruled eligible for benefits when they filed their respective claims. Their
respective employers protested such determinations, and claimed that each
claimant was subject to suspension of benefit rights for a period of seven
consecutive weeks, effective December 24, 1962, for loss of employment because
of a strike, lockout or other industrial controversy in the establishment in
which he was employed.
On October 1, 1962,
longshoremen, in the Port of New York (as well as the entire East Coast and
Gulf Coast) went out on strike against members of The New York Shipping
Association (hereinafter referred to as NYSA), an association of ship
operators, stevedores and other employers of waterfront labor. The strike was
halted by a Taft-Hartley injunction, which expired December 23. The strike was
immediately resumed. All non-military terminal and stevedoring operations came
to a standstill. All terminals in the port were picketed. Ship movements were
severely curtailed or were halted all together. During the strike, the Port of
New York was lifeless. No work was performed and no longshore workers were
hired (except for some strategic cargoes for the military). Wide publicity was
given to the resumption of the strike and the resulting shutdown of the Port of
New York with respect to all waterfront activities. After the strike was
settled on January 26, 1963, the longshoremen returned to work and the port
resumed its normal operations. Shipping was also resumed.
Most of the claimants
herein were employed by ship operators as licensed or unlicensed personnel in
the operation of vessels used for their maritime operations on the high seas.
These included able-bodied seamen, cooks and assistant cooks, engineers and
assistant engineers, engine storekeepers, firemen-water tenders, mates and
assistant mates, messmen, musicians, officers, oilers, pantrymen, pursers,
radio operators and officers, stewards and waitresses. These will be referred
to as Group 1.
Some of the claimants were
employed by such companies to perform services aboard their vessels while in
port. These included relief mates and engineers and ship painters. These will
be referred to as Group 2.
Some of the claimants were
employed solely on shore as office employees and as port watchmen. These will
be referred to as Group 3.
The strike of the
longshoremen was supported by the National Maritime Union and other unions of
which seamen and officers were members. As ships reached the Port of New York
(and in one case, Baltimore), they were laid up and their crews filed for
benefits. They did not actively picket, but they did respect the longshoremen’s
picket lines at the terminals.
The terminals, which the
ship lines operated, consisted of one or more piers. Such facilities included
areas to receive cargo and freight to await arrival of vessels for shipment
thereon and for inspection of cargo discharged at the terminals until picked up
and further movement in transit. The operating offices of the ship lines are
maintained at the terminals. When a crew is assembled or replacements are
needed, they are sent to the ship lines’ personnel offices for processing and
screening and for medical examination and for preparation of and the signing of
shipping articles. The personnel, medical and payroll records are prepared and
maintained in such offices at the terminals. At the end of the voyages, the
seamen are usually paid off at the personnel offices and shipping articles are
signed off. Grievance machinery is handled and processed at the same offices.
The terminals are used as
the mail address of the vessels. Cargo is consigned to the terminals. Access to
and egress from the ships for passengers, for seamen, for members of the
public, for cargo and for truckmen is only through the terminals to which the
ships are made fast at the piers.
Physical connection between
the vessels and the terminals is made by hawsers or lines by telephone
connections made to passenger vessels through a "jack," by waterlines
through which City water is supplied for use on the vessel and by gangways or
side ports for ramps or stairways connecting the vessel with the terminal. The
piers are the starting and terminal points for each voyage of the vessels.
By December 18, 1962, U –
Lines decided to suspend operations because of the impending resumption of the
longshoremen’s strike when the Taft-Hartley injunction period would expire.
When the vessel S.S.A. arrived in port on December 18 at the termination of a
scheduled voyage, the next voyage, which was scheduled to start December 21,
was cancelled. The company did not want to have the vessel return from the
scheduled five-day cruise if a strike would be in effect at the home port at
that time. If it had not been for the longshoremen’s strike, the vessel would
have been continued in operation. It was laid up at Newport News and put back
in service in February 1963, after the strike was settled.
Claimant S. was employed
aboard this vessel was a musician. B. was employed as a purser. L. was employed
as a bedroom steward. Sa. was employed as a third cook.
Other vessels of this line
were laid up on arrival at port where the crews were laid off.
Claimant P., 70 years of
age, had been employed by U – Lines as a ship’s painter for about 18 years. He
was a member of an Industrial Union of Marine and Ship Builders’ Workers. He is
not a seaman. His duties consisted of painting interiors of ships of his
employer.
He was hired on shore (at
the terminal). He used paints and supplies, which were stored on the pier. He
had a locker on the pier and washed up at the wash basin on the pier. He was
paid on the pier. He went from the pier onto or into the ships, which were made
fast to the pier. He and co-workers did not participate in the longshoremen’s
strike, but respected the picket lines.
Claimants H. and R. were
employed as relief night mate and relief night engineer, respectively, aboard
two vessels of the U – Lines from December 18 to December 22, 1962. When their
respective employment’s ended, each returned to his union for further
assignment. At the time the strike was resumed, each of the vessels on which
these claimants had last been employed was under way on a foreign voyage.
During the hearing, U –
Lines withdrew its objection to the payment of benefits to these two claimants.
Three claimants, Bo., D.
and Re., were employed as office employees by TMV. They were members of an
office employees international union. They were assigned to an office on Pier
2. This office was occupied by 43 employees of TMV and the port captain of a
parent company, CAVN. Both companies were formed under the laws of the Republic
of Venezuela. CAVN operated vessels between Venezuela and the United States.
TMV was its agent in the Port of New York to solicit and obtain cargo and
handle all necessary paperwork. TMV does not operate any vessels and does not
require any stevedoring operations. However, CAVN has contracts with
stevedoring companies as a member of NYSA and was one of the companies struck
by the longshoremen. Employees of TMV did not participate in the strike, but
under orders from their union respected the picket lines.
After the strike, work
continued to be available for the white-collar workers of TMV, in its
accounting, claim and traffic departments. TMV maintained another office in an
office building in New York City where employees continued to work during the
strike. That office was not picketed.
Claimant M. was employed by
A. Corporation as a port watchman for many years. He was assigned to guard a
special cargo crib on Pier 14, used by B. Line. The stevedoring operations at
the pier were conducted for the B. Line by T. Corporation, which paid the
longshoremen and reported such wage data to NYSA.
T. Corporation was one of
the companies struck by the Longshoremen. However, with reduction of shipping
and cargo movements due to the strike, the operations of A. Corporation were
affected and its complement of watchmen was reduced from 17 to 9. The special
cargo crib was closed entirely during the strike. When the strike was settled
M. and co-workers returned to work.
T. Corporation and A.
Corporation have interlocking directorates and common officers. One common
office is used in an office building and common offices are used at Piers 14
and 15. There is one set of supervisors and one collective bargaining agreement
covering one set of office employees. The pier superintendent (of T.
Corporation) and the head security office (of A. Corporation) are one and the
same person. There is one common paymaster, one switchboard and one common
telephone.
G. Line, one of the protesting
ship lines, controls all of its operations and directly employs longshoremen to
perform stevedoring operations. U. – Lines directly employs many longshoremen
and also contracts for such work and other maintenance and service work with
stevedoring companies and other independent contractors. The longshoremen
perform services in various areas of the piers and terminals and also work in
and on the ships, which are at the piers.
Referee’s Opinion: The initial determinations of
eligibility as to the various claimants herein were based on the conclusion
that there was no industrial controversy in the establishment in which the
respective claimants were employed and that the seamen were employed in
separate establishments from the longshoremen and consequently were not subject
to the industrial controversy suspension. In the case of some of the other
claimants who were not seamen, it was held that there was no industrial
controversy to which their respective employers were parties. The vessels on
which the seamen and the musicians and the ships’ painters worked were deemed
separate establishments from the piers or terminals, which were picketed and
were the location of the controversy. The office workers and port watchmen were
deemed to be on the payroll of entities, which were not parties to the
controversy.
I consider that it has been
effectively demonstrated that the ships were not separate establishments
from the struck terminal facilities where the employers maintained their
operating offices. The facts are practically identical with those in Appeal
Board case 99,726. In that case which involved one of the protesting employers,
G. Line, it was held that longshoremen were subject to suspension of benefits
due to an industrial controversy, since they worked in the same establishment
where an industrial controversy was in effect. That establishment was held to
be a pier or terminal, though the persons who were on strike were seamen and
not longshoremen. Since it was there held that there was a single establishment
for both groups of employees, the same result must be adopted here.
In further support of the
single establishment contention, reliance is placed on Appeal Board, 102,938.
There it was held that the establishment of striking flight engineers as well
as pilots and stewardesses were the terminals to which they had to report to
board the airplanes to undertake flights and not the airplanes. In that case,
office personnel employed in the terminal were held subject to suspension of
benefits due to an industrial controversy. To the same effect is Appeal Board
75,544, which held the establishment of newspaper delivery truck drivers to be
the plant where they were employed and not the trucks on which they worked.
It is, accordingly, held
that the seamen and those comprising Group 1 each became subject to suspension
from the accumulation of benefits because of loss of employment due to an
industrial controversy in the establishment in which they were employed. It is
immaterial that they did not directly participate in the strike of the
longshoremen and had no interest in its outcome.
The same conclusion is
reached with respect to the claimants who fall In-Group 2. Clearly, while those
persons performed their services, there was physical connection of the vessels
to the piers and terminals. The arguments in support of singleness of
establishment are much stronger with respect to this group than with Group 1
who did perform the major part of their services while their vessels were free
from physical attachment to the piers or terminals.
As to Group 3, it is urged
that there was such a singleness of operation and control and oneness of
management and policy-making existing between the two directly affiliated
companies, T. Corporation, which was admittedly involved in the controversy and
A. Corporation, that both "Units" involved are to be treated
singularly as one employer. Reliance is placed on Matter of Technician
Cardiograph Corporation, 285 App. Div. 193, and affirming Appeal Board
41,428. I consider that there is merit to the employers’ contention and hold
that the employees of such employers as well as the other employers similarly
situated, namely, TMV, must be deemed subject to the industrial controversy
suspension.
Referee’s Decision: The objections of the various
employers are sustained with respect to all of the claimants herein except H.
and R. The initial determination of eligibility as to all the claimants herein,
except only H. and R., are modified to provide for suspension of accumulation
of benefit rights due to loss of employment because of an industrial
controversy in the establishment in which said claimants were employed and, as
so modified, are sustained.
Appealed By: Claimants
Appeal Board Opinion and
Decision: After a
review of the record, including testimony and evidence adduced before the
referee and due deliberation having been had thereon, and having found that the
referee’s findings of fact and opinion are fully supported by the record, and
that no errors of fact or law appear to have been made, the Board adopts the
findings of fact and the opinion of the referee as the findings of fact and the
opinion of the Board. The decision of the referee is affirmed. (September 25,
1964)
Index No. 1285-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 4, 1964
INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Union Relations
Appeal Board Case Number 114,080
REFUSAL; TRANSFER TO ANOTHER LOCAL
OF SAME UNION
A claimant, member of a
union, does not have good cause to refuse employment because it requires
transfer to another local of the same union since such transfer would not have
interfered with claimant’s membership in a labor organization within the
meaning of Section 593.2a of the Law.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective February
19, 1964, on the ground that without good cause she refused employment which
she is reasonably fitted by training and experience is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a bakery salesperson,
was offered a referral to employment on February 19, 1964. She refused the
referral because she would have been required to join a different local of the
union of which she was a member. Claimant has been a member of her local for
about six years but could have transferred to the sister local without loss of
any rights except a possible suspension of some membership benefits such as
seniority and medical care privileges. The wages and hours of the job offer
were not substantially below the prevailing wages in claimant’s occupation.
Appeal Board Opinion and
Decision: Claimant
refused the employment because she was required to transfer to a sister local
of her union. A transfer of union membership between locals of the same union
does not come within Section 593.2(a) of the Law justifying the refusal of
employment since the requirement of such transfer would not have been an
interference with claimant’s membership in a labor organization (Appeal Board,
42,766; 73,661; 112,239). Nor does it appear that claimant would have suffered
any undue financial burden on account of the transfer. Her refusal of the
employment was without good cause.
The initial determination
of the local office is sustained. The decision of the referee is reversed.
(October 22, 1964)
Index No. 915A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 7, 1965
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Pension – Benefit Rate Deduction
Appeal Board Case Number 111,760
PENSIONS – BENEFIT RATE DEDUCTION;
PROFIT SHARING PLAN
Payments received by a
claimant upon retirement under a profit-sharing retiremnet plan constitute a
"pension or retirement payment" as contemplated by the provisions of
Section 600 of the Law.
Referee’s Decision: The revised initial determinations
of the local office holding claimants eligible to receive benefits at a benefit
rate of $50 each is modified by reducing the benefit rate by the amount
received as a pension or retirement payment under a plan financed by the
employer.
Appealed By: Industrial Commissioner and
Claimants
Findings of Fact: Each of the claimants was employed
by the employer herein, a publisher. Claimant J.F., a linotype machinist, was
so employed for 28 years. Claimant A.V.G., a mailer, was so employed for 13
years. The employment of each claimant was terminated on June 27, 1963, at
which time claimant J.F. was 65 years of age and claimant A.V.G., 64 years of
age.
Each of the claimants was a
beneficiary of a plan promulgated by the employer in 1949 and continued in
effect through the present time. By virtue of the provisions of such plan,
claimant J.F. received a quarterly payment of $600 from the date of termination
of his employment and claimant A.V.G. received a quarterly payment of $450.
Originally, the local office issued an initial determination that because of the
installment payments received by claimant J.F. under the plan, his benefit rate
was reduced by $46 weekly to a gross unemployment benefit payment of $4 weekly.
However, such initial determination was revised and it was then initially
determined that no deduction was to be made from the unemployment insurance
benefit rate of either of the claimants herein.
The plan under which the
quarterly payments were made to claimants, promulgated by the employer in 1949,
is entitled "Profit Sharing Retirement Plan." The plan was created by
a trust agreement executed by the employer and a trust company. The trust
agreement sets forth the purposes of the plan as follows:
"The
purpose of the D.J. Profit Sharing Retirement Plan is twofold. It is intended
through the deposit of money in the Fund in every year in which the Company
earns a net profit to provide a retirement benefit for those of its regular
employees who qualify under the plan by reason of length of service with the
Company and thus to assure them of income in the years after they have ceased
active work.
"Secondly,
it is desired to make the amount of these benefits depend directly upon the
profits of the Company so as to provide a direct incentive to every employee to
contribute to the efficient operation of the Company."
Under these terms of the
trust agreement the employer obligated itself to pay periodically to the
trustees a portion of its profits to be deposited in the fund established for
the benefit of employees entitled to participate in the plan. The trustees are
required to establish a separate account for each eligible employee and to
credit each of such accounts with the share of the profits specified in the
trust agreement. Every employee, except certain employees not here material,
who shall have been continually employed by the employer for at least five
years is entitled to participate in the plan. No contributions to the plan are
made by any employees, but it is funded entirely by the moneys paid to the
trustees by the employer out of the latter’s profits. The employees who thus
became members of the plan acquired a vested interest in the moneys credited to
their accounts by the trustees, but under no circumstances may any employee
while he remains in the employ of the Company, withdraw any part of such moneys
or assign or transfer his right to receive such moneys, nor is the employees’
interest therein subject to any attachment, execution, garnishment, trustee
process or any other legal or equitable process or bankruptcy proceedings.
However, upon the termination of employment of an eligible employee, the total
of moneys credited to his account by the trustees under the plan becomes
available for his benefit or to his beneficiary in the event of his death, and
such entitlement does not become forfeited irrespective of the time when the
termination of employment occurs, nor on account of the cause for such
termination. When the eligible member’s employment terminates, the method of
payment of the funds credited to that employee’s account is determined in the
sole discretion of the trustees under the plan, except that if the aggregate
amount credited to such employee does not exceed $1000, the aggregate of the
account is paid in a lump sum to the terminated employee or to his
beneficiaries. In all other instances, the trustees of the plan are vested with
discretion to choose one of three methods of payment to the terminated
employee; they may pay the entire sum, irrespective of the amount thereof, in a
lump sum to the separated employee; they may use the total of the account to
purchase an annuity for the benefit of the separated employee; or they may pay
the sum in periodic installments.
In the instant cases, when
claimant J.F. was separated from the employment he had to his credit in the
aforesaid account the sum of $25,339.83. The trustees determined to pay such
sum to him in quarter annual installments of $600 each, and when claimant
A.V.G. was separated from the employment, the total credited to his account was
$9,340.68 and the trustees determined to pay that amount to him in quarter
annual installments of $450 each.
It is undisputed that
throughout the period here at issue, such benefits had been paid to each of the
claimants herein.
Appeal Board Opinion and
Decision: The
claimants and the Industrial Commissioner contend that the payments received by
each of the claimants as above set forth, are not pension or retirement
payments as contemplated by the provisions of Section 600 of the Law and that
therefore there is no authority for reducing claimants’ benefit rate. On the
other hand, the employer contends that such payments constitute pension or
retirement payments under a plan financed in whole by it and that therefore the
benefit rate of each claimant must be reduced by the prorated weekly amount of the
payments which each claimant became entitled to receive under the plan.
It is abundantly clear that
the plan promulgated by the employer does not qualify as a retirement plan
within the contemplation of the Internal Revenue Code, because under that statute
a qualified retirement plan must be funded by contributions regularly made
without regard to whether the employer had earned a profit and based upon
certain actuarial tables (section 401, Internal Revenue Code; C.C.H. Pension
Plan Guide, Paragraph 10,054). However, the Legislature of this state in
enacting Section 600 of the Unemployment Insurance Law, did not require that in
order to provide a basis for reducing a claimant’s benefit rate, the plan under
which payments are made must qualify as a retirement plan under the Internal
Revenue Code. On the contrary, the statute in general language requires a
benefit rate reduction in every instance in which a pension or retirement
payment is made under a plan financed in whole or in part by an employer. It is
clear from the specific language of the trust agreement, which created the plan
in issue that the primary purpose thereof was to provide retirement payments to
employees who qualify as beneficiaries. Obviously, therefore, the payments to
which an employee becomes entitled when he is retired from an employer’s employ
is a pension or retirement payment. It is to be presumed that when the statute
was enacted, the Legislature recognized the distinction between plans which
qualify as profit sharing plans under the Internal Revenue Code and those which
qualify as retirement plans under that code. If the Legislature had intended to
except from the effect of Section 600 payments made in pursuance of profit
sharing plans, they would have stated so specifically.
We do not deem it
significant that the employer contributed to such plan only out of its profits.
The contributions nonetheless were the employer’s moneys and therefore the
financing of the fund was made solely by the employer’s funds. That the
accounts of the employees were individually credited with the periodic
contributions made by the employer, does not alter this conclusion. These
moneys were in no sense funds of the employees, notwithstanding that they
acquired the vested right to the receipt of such moneys upon termination of
employment. No employee acquired any right to use of such funds therefore such
moneys were not the moneys of the employee until payments were made to him
after his separation from employment and the action of the trustees in determining
the manner of payment.
We therefore conclude that
the payments made to each of the claimants herein constitute such payments as
were contemplated by the provisions of Section 600 as a basis for reducing the
claimants’ benefit rate. Accordingly, the benefit rate of each claimant is to
be reduced by the prorated weekly amount of payments received by him.
The employer’s objections
are sustained, and the revised initial determinations are modified by reducing
the amount of each claimant’s benefit rate in accordance with the provisions of
section 600 of the Law. The decision of the referee is affirmed. (December 15,
1964)
COMMENTS
Index No. 790.6
NEW YORK STATE DEPARTMENT OF LABOR
UENMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
March 4, 1965
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Refusal of Employment
REFUSAL OF EMPLOYMENT
Offer, what constitutes
Appeal Board Case Number 120,452
SEAMAN’S FAILURE TO BID FOR A JOB AT
UNION HIRING HALL
Where a seaman has
reasonable prospects of employment because of employment registration
seniority, his failure to bid for a position while present at the union hiring
hall constitutes a refusal of employment within the meaning of the Unemployment
Insurance Law. (See "Comments" for other circumstances, such as
failure to report at hiring hall, raising the availability issue.)
Referee’s Findings of
Fact: A hearing was
held at which claimant and a representative of the Industrial Commissioner
appeared and testified.
By initial determinations
effective November 18, 1964, claimant, a seaman, was disqualified for refusal
of employment without good cause and because of unavailability for employment.
He was held to be overpaid $46, which was ruled to be recoverable.
Claimant registered for
employment at the union hiring hall on August 23. There are four types of
seniority among seamen, depending upon length of service. Claimant, because of
previous service, has the highest type of seniority.
Available positions are
announced daily at the union hiring hall. Seamen who desire employment apply
for the available work which is given to the seaman with the greatest
employment registration seniority. Claimant has sufficient registration
seniority to apply for and obtain a position on November 18. Claimant was
present in the union hiring hall when the position was announced and he knew
that in all probability, he could obtain the position if he applied for it. The
position involved work as a bedroom steward and officers’ messman. Claimant
disliked such a combination and failed to apply for an obtain the position for
that reason. Also, he has worked sporadically as a longshoreman and was at that
time interested in work as a longshoreman. For that reason, he permitted his
90 day registration for employment card to expire without "Shipping
out."
Claimant was paid $46 in
benefits subsequent to November 18 because he failed to disclose to the
insurance office that could have applied for and obtained employment.
Referee’s Opinion and
Decision: The
posting of available work by a representative of the union upon the request of
an employer constitutes and is, in effect, a constructive referral to
employment since all seamen who have registered for employment are invited to
apply for the available position. This is the only mode of referral to
employment in connection with the hiring of seamen through the union hiring
hall. A seaman is aware that he is required to shape daily in order to be
considered for employment in connection with this process of referral. With
reference to selection for other types of employment, in the ordinary case the
workers who are referred to a prospective employer are interviewed and one
applicant is selected by the employer for the available position. In connection
with seamen, it has been agreed that selection for the position among the
seamen who have been referred (the process of referral is made up of posting of
the jobs in the union hiring hall for bids by any seaman possessing an
employment registration card) will be based upon the seniority of the seamen
who have registered for employment and have accepted the referral by bidding
for the position. Accordingly, where a seaman has reasonable prospects of
employment because of employment registration seniority, and he fails to bid
for a position, such failure to bid for the work which the seaman has
reasonable prospects of obtaining, constitutes a constructive refusal of
referral within the meaning of the Unemployment Insurance Law. To hold
otherwise would mean that a seaman who obtained employment through a union
hiring hall could never be disqualified for refusing employment by simply
failing to bid for available work. No such result was intended by the Law.
The credible evidence also
compels the conclusion that claimant was unavailable for employment in his
usual occupational category as a seaman and he was properly held ineligible
because of unavailability for employment.
Claimant was overpaid any
benefits received subsequent to November 18, the effective date of the initial
determinations. The overpayment is recoverable since claimant failed to
disclose to the insurance office that he had refused referral to employment by
failing to apply for the available position as a seaman and also because of his
failure to disclose that he was not interested in employment in his customary
occupation as a seaman. It is significant that claimant permitted his 90-day
employment registration to expire without accepting referral to employment by
bidding for available work. The initial determinations are sustained. Claimant
was overpaid. The overpayment is recoverable.
Appealed By: Claimant
Appeal Board Opinion and
Decision: After a review
of the record including testimony and evidence adduced before the referee and
due deliberation having been had thereon, and having found that the referee’s
findings of fact and opinion are fully supported by the record, and that no
errors of fact or law appear to have been made, the Board adopts the findings
of fact and the opinion of the referee as the findings of fact and the opinion
of the Board. The decision of the referee is affirmed. (February 16, 1965)
COMMENTS
Release A-750-952 (Rev.),
dealing with a somewhat similar case, is now obsolete and should be so marked.
The Board in that decision overruled in effect a refusal disqualification by
sustained an alternate determination of unavailability, finding that
"claimant absented himself from the hiring hall" and holding that in
doing so "he had, in fact, removed himself from the labor market."
The court upon appeal by the Industrial Commissioner sustained the Board and,
since "the evidence presented is sketchy, inconsistent and fails to
establish facts with clarity," stated: "we cannot say as a matter of
law that the claimant refused employment" under disqualifying conditions.
The evidence in the instant
case is quite clear and shows that claimant did not remove himself from the
labor market but "was present in the union hiring hall when the position
was announced and he knew that in all probability, he could obtain the position
if he applied for it." Under such circumstances, in following the here
reported Board decision, the issue presented is one of "refusal."
If the evidence does not
clearly show a refusal but where circumstances are such that the claimant’s
actions, or failure to act, point to unavailability, by withdrawal from the
labor market or because of other conditions, that issue must be resolved.
Failure to report at the hiring hall is an illustration of such a situation.
Index No. 1635A-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 18, 1965
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Domestic Circumstances
Appeal Board Case Number 118,559
DESIRE TO BE WITH CHILDREN DESPITE
CHILD CARE ARRANGEMENTS
Where claimant had engaged
someone to care for children, leaving employment to be with them during the
summer is without good cause since claimant’s presence was not a compelling
necessity.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective August
31, 1964, on the ground that she voluntarily left her employment without good
cause is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a business office
representative for the telephone company, last worked for the employer on July
2, 1964. She commenced this employment which was a temporary tenure on
September 17, 1963, and worked three days a week, seven hours a day. The
employer’s rules provide that temporary employees could only work for a period
of 11 consecutive months and then would be terminated by the employer. The
termination is a lay-off and is characterized by the employer as "work
completed." Temporary employees are not eligible for rehire until the
expiration of three months from the last day of work and are only permitted to
resign if there is no work for them in which event the employee can be
reinstated after a one week period. There was work for claimant through August
17, 1964. However, on July 2, 1964, claimant notified the employer that she
wished to resign in order to be with her children during the summertime. She
had hired her cousin to care for her children. Claimant’s presence therefore
was not a compelling necessity in order to care for her children. Although
there was work for claimant on July 2, 1964, her resignation was characterized
by the employer as "work completed."
Claimant filed for
unemployment insurance benefits on September 3 effective as of August 31, 1964.
On October 5, 1964, claimant was rehired by the employer although claimant had
called the employer in mid-August and was told that there was no work for her
at that time.
Appeal Board Opinion and
Decision:
Claimant’s voluntarily leaving of her employment on July 2, 1964, was without
good cause when she resigned her position in order to spend the summer with her
children. Her reasons were personal and non-compelling. We do not accept the
view that the claimant primarily was motivated to resign by the fact that in
any event the employer was going to terminate claimant mandatorily on August 17
and she would have to wait three months for rehire and therefore claimant chose
to have the three months’ suspension period commence with July 2 rather than
August 17, 1964. We hold that the actual date of claimant’s filing for benefits
does not affect our conclusion that claimant’s voluntarily leaving of
employment was without good cause and that her reasons therefore were personal
and non-compelling.
The initial determination
of the local office is sustained. The decision of the referee is reversed.
(March 9, 1965)
Index 1315-12
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
MAY 20, 1965
INTERPRETATION SERVICE - BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
In the establishment, question of
Appeal Board Case Number 118,398
INDUSTRIAL CONTROVERSY - PICKETING
CAUSED BY ANOTHER UNION
An industrial controversy
at one of the employer's establishments is not extended to another of his
establishments solely because it is picketed by the striking union.
Referee's Decision: The decision of the referee
overruled the initial determinations of the local office holding claimants
eligible to receive benefits without disqualifying conditions and sustained the
employer's objection to the payment of benefits to the said claimants on the
ground that they were subject to disqualification for having voluntarily left
their employment without good cause, effective the day after the termination of
such employment.
Appealed By: Industrial Commissioner.
Findings of Fact: The employers operated warehouses at
various separate locations in New York City and in the State of New Jersey. The
employers were in contractual relations with the Local 818, affiliated with the
National Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Ind.) with respect to the persons employed in its New York City
warehouses. Claimants were members of such union local and were covered by the
collective bargaining agreement. The employers were also in contractual
relations with Local 617 affiliated with the same parent organization with
respect to its employees in its New Jersey warehouses. Each of the agreements
between the employers and the respective union local was separate and distinct.
Each agreement expired by its term on May 31, 1964.
At the expiration of its
agreement with the employers, Local 818, the union with which claimants herein
were affiliated, negotiated with the employers for a renewal contract. It
agreed with the employers to indefinitely extend the period of the expired
contract while the negotiations were pending and it further agreed that its
members would continue in employment in the New York City establishments.
However, Local 617, the local which covered the New Jersey employees, declared
a strike against the employers on June 1, 1964, and during the pendency of such
strike, that local caused picketing at the New York City establishments of the
employers, specifically at the premises where each of the claimants herein was
employed. Claimants, together with other persons employed in the New York City
establishment, refused to cross the picket lines which had been placed by the
New Jersey local at the New York City establishment and therefore they ceased
working. They returned to work immediately after the pickets were removed.
Prior to the time when the pickets were completely removed from the New York
premises, the employers commenced a proceeding in the United States District
Court for the Southern District of New York charging the New Jersey union local
with illegal picketing and by consent of the parties a restraining order was
issued by the Court limiting the number of pickets which could be maintained at
the New York establishment.
Appeal Board Opinion and
Decision: The
referee concluded that claimants herein had not lost their employment due to
the existence of an industrial controversy in the establishment in which they
were employed, but nevertheless concluded that claimants were subjected to
disqualification on the theory that by terminating their employment on account
of their unwillingness to cross a picket line, they voluntarily left their
employment without good cause within the purview of the Unemployment Insurance
Law. There is ample authority in support of the referee's conclusion that
claimants did not lose their employment as the result of an industrial
controversy in the establishment in which they were employed. It has been held
repeatedly that the suspension of benefits provided for in Section 592 of the
Law applies only in instances where the loss of employment results form an
industrial controversy in the establishment in which the
claimants were employed. "Establishment" has been defined as the
geographical location of the place of employment (See Matter of George,
14 N.Y. 2d 234 affirming Appeal Board 68,848 et seq' Matter of Ferrara,
10 N.Y. 2d modifying Appeal Board 63,261 thru 63,308-58 et al.). In the instant
case it is undisputed that there was no controversy between the employer and
claimants or their co-workers at the New York establishment or the union which
represented them. The employer was involved in an industrial controversy with
the union with which it contracted with respect to employees located at an
entirely different establishment in another state. The existence of that
industrial controversy in New Jersey cannot be deemed to have existed in the
establishment in which claimants herein were employed. Nor does the fact that
the New Jersey local picketed the New York City establishment (See Matter of
Ferrara, supra; also Appeal Board 69,148; 70,856). Accordingly, we
concur in the conclusion reached by the referee that the claimants herein did
not lose their employment as a result of an industrial controversy in the
establishment at which they were employed and hence they are not subject to a
suspension of benefits under the provisions of Section 592 of the Law.
There remains for
consideration the question with regard to whether claimants' refusal to cross
the picket line constituted a voluntary leaving of employment without good
cause. The authorities hold to the contrary. Even though there may be no actual
fear of personal violence, a worker is provided with good cause to refuse to
cross a picket line if his personal scruples so dictate (Matter of
Wittlaufer, 277 App. Div. 805, affirming Appeal Board 18,177-48; Matter
of Bucklauew, 277 App. Div. 805, affirming Appeal Board 18,129-48; also see
Matter of Freeman, 9 App. Div. 2d 1008, affirming Appeal Board, 66,611
thru 66,613-58.
Accordingly, we conclude
that there is no validity to the employer's objection and that the claimants
are not subject to either a suspension of benefits or a disqualification from
receiving benefits.
The initial determinations
holding that claimants are eligible for benefits without disqualifying
conditions are sustained. The objections of the employer are overruled. The
decision of the referee is reversed. (March 12, 1965)
COMMENTS
That portion of the
decision which deals with the refusal to cross a picket line will apply to all
similar instances. Thus, if there is a picket line at the claimant's
establishment but no industrial controversy exists at that
"establishment", the claimant is neither subject to a strike
suspension nor to a voluntary quit disqualification if he failed to report for
work because of his personal scruples against the crossing of a picket line.
Index No. 1580D-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 25, 1965
INTERPRETATION SERVICE - BENEFIT CLAIM
MISREPRESENTATION - OVERPAYMENTS
Penalty Period
Appeal Board 119,121
FORFEITURE - PENALTY INADVERTENTLY
WITHHELD - FORFEITURE PENALTY REMAINS
Where benefits should have
been withheld because of a forfeiture penalty but were paid in error and are
non-recoverable, the forfeiture penalty is not served in that period but
remains in effect and applies to subsequent effective days.
Referee's Findings of
Fact: A hearing was
held at which claimant and a representative of the employer appeared and
testified. A statement was submitted on behalf of the Industrial Commissioner
in lieu of an appearance.
Claimant, a paster, was
ruled ineligible because of lack of total unemployment by initial determination
effective July 8, 1963, only. His benefits were ruled to be forfeited for 24
effective days because of wilful false statements to obtain benefits. Claimant
was ruled overpaid $7 in connection with these determinations, which he has
repaid. Claimant was ruled overpaid an additional $180 for benefits received
during the period from July 6, to August 16, 1964, and this overpayment was
held to be recoverable. He was further ruled ineligible because of
unavailability for employment by initial determination effective September 29,
1964.
The initial determinations
ruling claimant ineligible because of lack of total unemployment and ruling
that claimant had made wilful false statements to obtain benefits were given to
claimant on November 1, 1963. He did not request a hearing until October 13,
1964. The Industrial Commissioner has interposed the contention that claimant's
request for a hearing is not timely as to these determinations. Claimant states
that he did go to the insurance office during November, 1963, and was told that
the determinations were correct, so that he took no further action.
Claimant filed a new
original claim effective June 29, 1964. The insurance office had claimant's
insurance record which indicated he was then under a penalty of forfeiture of
24 effective days. However, apparently due to inadvertence, benefits were paid
to the claimant although he was under a forfeiture penalty and he received six
benefit payments for the period from July 6 to August 16, 1964. Claimant did
not realize that he was not entitled to benefits for that period because of the
prior penalty. He believed that since he had previously repaid the $7
overpayment the matter had ended, and he was unaware of the significance of the
forfeiture penalty.
Claimant, age 64, had
worked for his last employer for about three years to June, 1964. Subsequent to
the end of that employment he applied for his union retirement annuity. He is
receiving $87.50 per month, and under the terms of this retirement can not work
for his former employers and, further, if he earns over $100 a month he will
forfeit the retirement annuity for that month. Claimant states that he is not
willing to forfeit the retirement annuity for any month. During the period
involved claimant has made extremely meager contacts for employment. He was
unable to give the name of any employers whom he contacted, but states simply
that he did contact some employers. Admittedly, none of these contacts were
made for at least three weeks prior to the hearing
Referee's Opinion and
Decision: Since
claimant did not request a hearing within 30 days as to the determinations of
lack of total unemployment and wilful false statements to obtain benefits, the
Referee is without jurisdiction to determine the merits of those issues.
Claimant was overpaid $180
since he received benefit payments during a period when he was under a
forfeiture penalty. However, the record indicates he received these payments in
good faith. Claimant was unaware that he had to notify the insurance office of
the forfeiture penalty and, further, he did not understand the nature of such
penalty, or the fact that he was required to sign for six checks that he would
not receive because of such penalty. Accordingly, this overpayment is not
recoverable. However, the forfeiture penalty remains in effect and in the
event the claimant becomes entitled to receive benefits, such penalty may be
imposed. On the issue of availability claimant has shown no attachment to
the labor market. His acceptance of the retirement annuity prevents him from
working for his prior employers and it appears that he is not willing to give
up such annuity in the event he obtains employment. Further, his job efforts
during the period involved were virtually nil and did not show an attachment to
the labor market. Claimant was not available for employment from September 22.
The initial determinations
of lack of total unemployment and wilful false statements to obtain benefits
remain in effect. Claimant was overpaid $7 in connection with these
determinations, which is recoverable. The initial determination that claimant
was overpaid an additional $180, which is not recoverable. The initial
determination that claimant was unavailable for employment is sustained.
Appealed By: Claimant
Appeal Board Opinion and
Decision: After a
review of the record including testimony and evidence adduced before the
referee and due deliberation having been had thereon, and having found that the
referee's findings of fact and opinion are fully supported by the record, and
that no errors of fact or law appear to have been made, the board adopts the
findings of fact and the opinion of the referee as the findings of fact and the
opinion of the Board. The decision of the referee is affirmed. (February 2,
1965)
Index No. 1460B-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 21, 1965
INTERPRETATION SERVICE - BENEFIT CLAIM
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without work
Other
Appeal Board UCFE 1533
FEDERAL EMPLOYEE (UCFE) - HOLIDAY
PAY
A Federal employee (UCFE)
is not totally unemployed on days for which he receives holiday pay even though
such days follow the date on which the federal services of the claimant
terminated.
Referee's Findings of
Fact: A hearing was
held at which claimant F. and a representative of the Industrial Commissioner
appeared and testified.
By initial determinations,
claimant F. was ruled ineligible effective November 11, 1964, and November 26,
because of receipt of holiday pay. Claimant R. was ruled ineligible effective
November 11 only, because of receipt of holiday pay. Claimant F. was employed
by the Federal government through October 31, 1964, when she was compulsorily
retired. The Federal Agency reported "Retirement-Mandatory eff COB
10/14/64 A/L Due 295 hrs. plus 2 holidays."
The two holidays for which
she was paid was Armistice Day on November 11 and Thanksgiving Day on November
26.
Referee's Opinion and
Decision: The
record clearly establishes the receipt of holiday pay by F. for the two days in
issue, in addition to the payment for accrued annual leave. The receipt of such
holiday payments falls squarely within Section 591, Subdivision c of the
Unemployment Insurance Law, and therefore, claimant was ineligible for benefits
for these two days.
Claimant R. failed to
appear, although duly notified.
The initial determinations
are sustained.
Appealed By: Claimant
Appeal Board Opinion and
Decision: After a
review of the record including testimony and evidence adduced before the
referee and due deliberation having been had thereon, and having found that the
referee's findings of fact and opinion are fully supported by the record, and
that no errors of fact or law appear to have been made, the Board adopts the
findings of fact and the opinion of the referee as the findings of fact and the
opinion of the Board.
The decision of the referee
is affirmed. (January 25, 1965)
Index No. 1460C-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 21, 1965
INTERPRETATION SERVICE - BENEFIT CLAIM
TOTAL OR PARTIAL UNEMPLOYMENT
Compensation without work
Vacation pay
Referee Decision No.3-7-65
STATE EMPLOYEE KEPT ON PAYROLL
-LEAVE TIME LIQUIDATION
State employee carried
on the payroll in order to liquidate accumulated leave time (annual,
personal and overtime) is not totally unemployed during such period.
Referee's Findings of
Fact: A hearing was
held at which claimant and a representative of the employer appeared and
testified. A statement was submitted on behalf of the Industrial Commissioner
in lieu of an appearance.
By initial determination
effective November 16 through December 3, 1964, claimant was ruled ineligible
because of lack of total unemployment.
Claimant was employed by
the Canal Division of the State Department of Public Works, as a ship's cook,
at an annual salary of $4124. He worked a five-day, 40-hour week and was paid
gross wages of $163.16 bi-weekly. Claimant commenced his employment on April
13, 1964. The job was a seasonal one and was scheduled to terminate in
December. During the course of his employment, claimant accumulated vacation
time and personal leave time. In addition, he worked overtime for which he was
to receive compensatory time off. The employing agency calculated that if
claimant's last day of work were November 16, he would be able to liquidate 172
hours of accumulated annual leave, 14 hours of personal leave and 47.30 hours
of overtime by the end of the year. Accordingly, claimant last worked on
November 16, but was carried on the employer's payroll until his accumulated
time was liquidated. He received his regular bi-weekly pay check with the usual
tax deductions until he was removed from the payroll and officially terminated.
Referee's Opinion and
Decision: In Matter
of Blitz, 302 N.Y. 573, affirming 275 App. Div. 1015 , reversing Appeal
Board 18,942, the Court held that a state employee who continues on the state
payroll while liquidating annual leave, is not totally unemployed during such
period. The Board held to the same effect in Appeal Board 117,191, affirming
Referee Dec. 32-63-64. Accordingly, in the instant case, I must conclude that
claimant was correctly ruled ineligible because he lacked total unemployment during
the period under review.
The initial determination
is sustained. (February 24, 1965)
Index No. 1420-11
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 9,1965
INTERPRETATION SERVICE - BENEFIT CLAIM
TOTAL OR PARTIAL UNEMPLOYMENT
Miscellaneous Employment
Appellate Division Decision
Matter of Max Carasso
Appeal Board 105,725
TOTAL UNEMPLOYMENT, QUESTION OF;
SELF-EMPLOYMENT
Claimant, a free lance
business consultant, who advertised in a trade publication, maintained an
office and storage space, and had a telephone answering service with a listing
in the telephone directory, was not totally unemployed notwithstanding that the
business was merely a side line while regularly employed, was sporadic,
involved limited investment and was not remunerative during the period for
which benefits were claimed.
Referee's Findings of
Fact: A hearing was
held at which claimant, his attorney, and a representative of the Industrial Commissioner
appeared. Testimony was taken.
By initial determination
effective June 10, 1963, claimant, an administrative assistant, was ruled
ineligible because of lack of total unemployment. By another initial
determination effective May 20 through June 9, 1963, claimant was ruled
ineligible because of failure to comply with registration requirements.
At the time of the hearing,
claimant withdrew his request for a hearing and his objection to the
determination of failure to comply with registration requirements.
Claimant was last employed
on December 15, 1962, and had worked for this employer for approximately 11
months at a terminal salary of $7800 per year. During the course of his
employment, claimant was also engaged in free-lance work as a consultant. He
earned approximately $1532 in 1962 in this work. Claimant maintains an office
address and telephone service for which he pays the sum of $10 a month. He has
a listing in the telephone directory under this address. He receives mail at
this address, which is forwarded to him at his home. Claimant also maintains an
office and storage space at another address, for which he pays $25 a month.
During the early part of 1963, claimant solicited business by mailing letters
to various concerns. He also has advertised in a trade publication. This
publication will again be issued in 1963, and claimant has again repeated his
advertisement in it. In 1963, claimant has earned a gross sum of approximately
$2000.
Referee's Opinion and
Decision: The
credible evidence established that claimant is engaged in self-employment. All
periods of self-employment are periods which constitute a lack of total
unemployment within the meaning of the Unemployment Insurance Law, irrespective
of whether or not income had been received regularly. (See Appeal Board 49,943-
55) It must be held that during the period under review, claimant was engaged
in self-employment and that, therefore, he was not totally unemployed. He was
correctly ruled ineligible because of lack of total unemployment. Since
claimant withdrew his request for a hearing and objection to the initial
determination of failure to comply with registration requirements, this issue
is not before me.
The initial determination
as to lack of total unemployment is sustained. The initial determination as to
failure to comply with registration requirements remains in effect. (August 2,
1963)
Appealed By: Claimant
Appeal Board Decision: After a review of the record
including testimony and evidence adduced before the referee and due deliberation
having been had thereon, and having found that the referee's findings of fact
and opinion are fully supported by the record, and that no errors of fact or
law appear to have been made, the Board adopts the findings of fact and the
opinion of the referee as the findings of fact and the opinion of the Board.
The decision of the referee is affirmed. (October 30, 1963)
Appellate Division
Decision: Appeal by
the claimant from a decision of the Unemployment Insurance Appeal Board denying
claimant benefits on the grounds that he was not totally unemployed within the
meaning of Section 522 of the Labor Law. Claimant asserts that the board's
finding that he was not totally unemployed is unwarranted. Of course, this
determination is factual and must be sustained if supported by substantial
evidence. Here there is evidence that claimant was, at the time he claims to
have been totally unemployed, engaged in free-lance work as a business
consultant. He maintained an office and storage space, had a telephone answering
service and a listing in the telephone directory, and advertised in a trade
publication. The fact that this was merely a sideline while he was regularly
employed or that it was sporadic and involved only a limited investment is not
controlling. Nor is the fact that the endeavor was non-remunerative during the
period for which benefits are claimed (Matter of Bailey [Catherwood],
18 AD 2d 727) or that claimant did not realize that his activities constituted
employment (Matter of Bunzl [Lubin], 1 A 2d 46). On the instant
record the board could properly find that claimant was not totally unemployed.
Index 755 D.11
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
JULY 1965
INTERPRETATION SERVICE - BENEFIT CLAIMS
AVAILABILITY AND CAPABILITY
Work History - Part-Time
AVAILABILITY - DESIRE FOR PART-TIME WORK - CHILD CARE
Restriction to part-time work because of claimant's desire to be with her children after school is a personal reason insufficient to justify a status change from a full time to a part-time worker and, therefore, renders the claimant unavailable for employment.
A.B. 123,329
Referee's Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective February
8, 1965 on the ground that she was not unavailable for employment is overruled.
Appealed By: Industrial Commissioner.
Findings of Fact: Claimant worked as a telephone
operator for a utility company on a full time basis. She has two children, ages
6 and 7. She employed a baby sitter to care for her children. Claimant left her
employment on November 26, 1964 after the baby sitter became ill and left her
employment. Claimant is separated from her husband. She advised the employer
that she intended to remain at home and care for her children.
Claimant sought employment
as a telephone operator and general office worker. Some opportunities existed
for the hours of work to which claimant restricted herself.
Appeal Board Opinion: We are not in accord with the
conclusion of the referee that claimant was available for employment.
Claimant's entire work history has been as a full time worker and she now
restricts herself to part-time employment. Claimant has not shown this
self-imposed restriction became necessary because of compelling circumstances
over which she had no control. Claimant's desire to work only during hours
which would enable her to be at home when her children return from school is a
personal reason which is insufficient to justify a change in her status from a
full time to a part-time worker (Compare Appeal Board, 62,005). We, therefore,
hold that claimant was unavailable for employment.
The initial determination
of the local office holding claimant ineligible for benefits effective February
8, 1965 on the ground that she was not available for employment is sustained.
The decision of the
referee, insofar as appealed from, is reversed. (7/8/65)
COMMENT
In Release A-750-1472 (A.B. 62,005-57), Index 755D.8 it is stated:
"A claimant who is compelled by force or circumstances, over which he has no control, to limit himself to part-time work which he can perform and which if obtainable in the labor market is available for employment even though he has a prior history of full time employment."
In the case here reported claimant desired to work only during hours which would enable her to be at home when her children returned from school. The Board held that "claimant has not shown that this self-imposed restriction became necessary because of compelling circumstances over which she had no control." Apparently, the Board felt that claimant could have hired a baby sitter as she had done in the past when she was a full time employee.
Index No. 805-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August 25, 1965
INTERPRETATION SERVICE - BENEFIT CLAIM
CLAIMS REGISTRATION AND REPORTING
Due Diligence
Appeal Board 124,639
FAILURE TO REPORT SUBSEQUENT TO
EXCUSED FAILURE TO REPORT
Where claimant's failure to
report as required is excused but he does not subsequently report in such
statutory week for unjustifiable reasons, no credit is allowed for days in that
week subsequent to the excused failure to report.
Appeal Board Decision
The Industrial Commissioner
appeals from the decision of the referee filed June 7, 1965, insofar as it
modifies the revised initial determination of the local office holding claimant
ineligible to receive benefits effective April 14 through April 18, 1965
(inadvertently stated by the referee to be effective April 13 through April 18,
1965) on the ground that he failed to comply with reporting requirements, as
modified by the referee to be effective April 14, 1965, only. The referee also
ruled that claimant was not eligible to receive benefits effective April 13,
1965, only, on the ground that he was not available for employment.
Findings of Fact: Claimant, a laborer, was assigned
Thursday as his reporting day. However for the statutory week ending April 18,
1965 local office reporting schedules were varied because of religious holidays
which fell during that week, and claimant was told to report on Tuesday, April
13 instead of on Thursday, April 15. He failed to report on April 13 because
his attendance was required as a witness in a criminal case pending in the New
York City Criminal Court. Claimant's failure to report on that day was excused.
He did not report to the local office again until April 19. He failed to report
on Wednesday, April 14 because it did not occur to him to do so, and although
he could have reported in the afternoon on April 15 and could have reported at
anytime that the local office was open on April 16, he did not.
Claimant assumed that the
local office was closed on Thursday and Friday, April 15 April 16, because his
reporting date had been changed from April 15 to April 13. The local office was
not closed on April 15 and April 16.
Opinion: The Industrial Commissioner's
regulation 41.d provides as follows:
"A claimant may not
receive credit for any period of unemployment from the day on which a failure
to report occurred until he next reports or until the beginning of the week in
which he next filed an additional claim in accordance with regulation 40,
whichever is earlier."
In Appeal Board 55,352, the
claimant was required to report to the insurance office on March 16, 1956, and
failed to do so for a non-excusable reason. March 17 and March 18, 1956 were
Saturday and Sunday, days on which the local office was closed. The Board held
that the failure to report as required on March 16, 1956 carried with it the
consequences of ineligibility on the Saturday and Sunday following the failure
to report, notwithstanding that the local office was closed on those days.
We see no substantial
difference in this case from the factual situation in Appeal Board 55,352.
Claimant herein admittedly failed to report to the local office on April 14,
1965 through his own neglect. Since he is chargeable with a failure to report
on April 14, 1965, he is likewise to be charged with the consequences which
flow from his failure to report on that date, whether or not the local office
was open during the intervening days before he finally reported on April 19.
Therefore, in accordance with the provisions of the quoted paragraph of
Regulation 41, claimant may not receive credit for April 15 through April 18,
1965. Since claimant could not accrue any effective days during the statutory
week ending April 18, 1965, it is not necessary to decide claimant's
availability for employment effective April 13, 1965, only, as that question is
academic.
Decision: The revised initial determination
of the local office holding claimant ineligible to receive benefits effective
April 14 through April 18, 1965, on the ground that he failed to comply with
reporting requirements is sustained. The decision of the referee, insofar as
appealed from, is reversed. (August 13, 1965)
Index No. 1605B-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August 31, 1965
INTERPRETATION SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Discharge or Leaving
Appeal Board 125,142
RESIGNATION SUBSEQUENT TO LAY-OFF
A claimant who is laid off
for an indefinite period with no expectation for recall within a reasonable
time does not voluntarily leave his employment upon submitting his resignation.
Referee's Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective April 1,
1965, on the ground that he voluntarily left his employment without good cause,
as modified by the referee to be effective April 6, 1965 is sustained.
Appealed by: Claimant
Findings of Fact: Claimant was employed as a mail sorter
for about nine months until March 26, 1965, when he was laid off for an
indefinite period with no immediate prospects of re-employment in the future.
On April 5, 1965, claimant visited the establishment of his former employer and
when he ascertained that there was no work then available for him and could not
be given any assurance when work would be available for him in the future, he
submitted a resignation.
Appeal Board Opinion and
Decision: When
claimant was laid off on March 26, 1965, or an indefinite period and with no
expectation for a recall within a reasonable time thereafter, claimant no
longer had a job pending. The relationship of employer-employee then ended. His
resignation on April 5, 1965, was an empty gesture, since he had no job then from
which he could have resigned.
Under the circumstances,
claimant may not be charged with having left his employment without good cause
for the obvious reason indicated.
The initial determination
of the local office is overruled. The decision of the referee is reversed.
(August 25) 1965)
Index 1410C-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
SEPTEMBER 3, 1965
INTERPRETATION SERVICE - BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Statutory limit on earnings
Appeal Board Case Number 124,517
RECEIPTS OF
"STAMPS" AS VACATION PAY; QUESTION OF STATUTORY LIMITATION FOR
PARTIAL BENEFITS
Where, pursuant to the
collective bargaining agreement governing the industry, claimants receive
stamps representing six per cent of their wages, redeemable in cash from the
union "vacation pay" fund, such stamps represent vacation pay and
cannot be used in determining the $55 statutory limitation for partial unemployment
benefits.
Referee's Decision: The initial determination of the
local office holding claimant eligible to receive benefits, effective the
statutory week ending April 18, 1965, without any disqualifying conditions is
overruled. The employer's objection thereto on the ground that claimant lacked
total unemployment in that he earned in excess of $50 during the statutory week
is sustained.
Appealed By: Industrial Commissioner.
Findings of Fact: Claimant is a structural
steelworker and is a member of the predominant union in the industry. During
the statutory week ending April 18, 1965, he was employed on April 15, 1965. He
was paid $48 cash wages and received "vacation pay" stamps of the
value of $2.90.
Pursuant to the collective
bargaining agreement governing the industry, structural steelworkers, when paid
their wages are given stamps representing six per cent of their wages, in
addition to their cash wages. The employers purchase these stamps, at face
value, from the union. The money paid for these stamps is held by the union in
a "vacation pay" fund. During the period from June 1 to September 30
of each year, the steelworkers may redeem the stamps in their possession, at
face value, in cash from the fund. They may do this, even though they are then currently
employed. In addition, they may redeem the stamps at any other time of the
year, if they are then unemployed. The employer objected to the payment of
benefits to claimant for the statutory week in issue, on the ground that
claimant's cash wages of $48 and the vacation pay stamps of $2.90 represented
earnings in excess of the statutory maximum set forth in Section 523 of the Law
and therefore claimant was ineligible to receive benefits.
Appeal Board Opinion and
Decision: The Board
has ruled in Appeal Board, 100,965A that vacation pay or allowance is no to be
used in determining whether claimant has earned in excess of the statutory
maximum for a particular week wherein benefits are claimed. The Board said:
Accordingly,
the vacation allowance of $51.84 which claimant received for the three days of
the vacation period in that week was not "compensation" for
"days of employment" as contemplated by Section 523, so as to
preclude claimant from receiving credit for effective days on the basis of her
remaining days of unemployment in that week. Nowhere in Section 591.3 which
governs eligibility during vacation periods is it provided that a vacation
allowance or payment is to be deemed "compensation" for days of
employment or that the days for which the allowance is made shall be deemed
"days of employment."
Although the above was
written in reference to a case which was governed by Section 591.3 as it read
prior to its amendment by Chapter 794 of the Laws of 1963, such amendment did
nothing to change the section in this respect. Vacation allowance and vacation
credits still are not to be deemed "compensation" so as to make
claimant ineligible to receive benefits on the ground that his earnings in the
week exceed the statutory maximum set forth in Section 523.
The vacation stamp plan
considered herein is merely a method of computing accrued vacation credits. It
was designed for the convenience of the employers and employees in a specific
industry due to the conditions of employment in that industry and falls within
the purview of Section 591.3 of the Law.
The claimant is eligible to
receive benefits and was not overpaid.
The initial determination
of the local office is sustained. The employer's objection is overruled. The
decision of the referee is reversed. (September 1, 1965)
COMMENTS
The principle that vacation
pay is not considered in determining the statutory limitation for partial
unemployment benefits (Section 523) is contained in Release A-750-1603.
Index No. 1505E-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 30, 1965
INTERPRETATION SERVICE - BENEFIT CLAIM
MISREPRESENTATION
Evidence of - Misconduct
Appeal Board Case Number 122,795
FALSE STATEMENT DURING COURSE OF
REFEREE HEARING
A wilful false statement
deliberately made by the claimant at a referee hearing is subject to the
imposition of the penalty provided in Section 594 of the law when there is
evidence showing a calculated scheme to deceive the hearing officer, such as
the presentation of spurious documents purporting to support the false
statement.
Referee's Decision: The initial determination of the
local office holding that claimant wilfully made a false statement to obtain
benefits by reason of which a forfeiture of 20 effective days was imposed as a
penalty in reduction of claimant's future benefit rights is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, an assistant bookkeeper,
was laid off from her last job on December 11, 1964. During the course of her
claim for benefits filed effective December 14, 1964, initial determinations
were issued by the local office holding claimant ineligible to receive benefits
(1) for an indefinite period effective December 14, 1964 because she was not
available for employment and (2) effective December 21 through December 27,
1964 because she failed to comply with reporting requirements. Claimant duly
requested a hearing thereon which was held on January 22, 1965. During the
course of said hearing, claimant testified in connection with the issue of her
search for work, that she had placed a "situations wanted"
advertisement in one of the leading metropolitan newspapers on four successive
Sundays. She submitted to the referee a receipt purporting to have been issued
by an advertising agency which Claimant had used for the placement of the
advertisement. Claimant offered such testimony for the deliberate purpose of
convincing the referee that she was available for work and that she was making
diligent efforts to seek work. The referee adjourned the hearing in order to
allow the Industrial Commissioner to confirm the receipt as well as various job
efforts which claimant alleged she had made. Thereafter and on February 3,
1965, the local office issued the initial determination charging claimant with
having wilfully made false statements to obtain benefits and imposing the
penalty herein reducing claimant's future benefit rights by 20 effective days
because claimant ". ..produced a fake receipt for an ad placed with the
N.Y. Times through an agency at the hearing which was held on 1/22/65."
At the adjourned hearing
held on March 30, 1965, claimant admitted that the receipt was spurious and
that she had filled out a blank receipt which she had obtained from a former
employee of the advertising agency in order to protect herself because the
personnel at the insurance office did not believe her job search was adequate
and sincere.
Appeal Board Opinion and
Decision: A novel
question is presented on this appeal. The sole issue is whether or not
claimant's false statement during the course of a hearing before an
unemployment insurance referee falls within the provisions of Section 594 of
the Law and therefore constitutes a wilful misrepresentation made to obtain
benefits which requires the imposition of the statutory penalty.
Section 594 of the Law
provides:
Reduction of benefits for
false statement. A claimant who has wilfully made a false statement or
representation to obtain any benefit under the provisions of this article shall
forfeit benefits for at least the first twenty but not more than the first
eighty effective days following discovery of such offense for which he
otherwise would have been entitled to receive benefits. Such penalty shall
apply only once with respect to each such offense.
For the purpose of
subdivision four of section five hundred ninety of this article, the claimant
shall be deemed to have received benefits for such forfeited effective days.
The penalty provided in
this section shall not be confined to a single benefit year but shall no longer
apply in whole or in part after the expiration of two years from the date on
which the offense was committed.
A claimant shall refund all
moneys received because of such false statement or representation made by him.
It is abundantly and
unmistakably clear that claimant was attempting to obtain benefits under the
Unemployment Insurance Law when she deliberately and wilfully made a false
statement when she testified that she had demonstrated her availability by
causing an advertisement to be placed in the newspapers and that she had a
receipt from an advertising agency attesting to that fact. Claimant admittedly
knew that the statement was false and that she had made it with the calculated
intent that it be relied upon so that she would obtain benefits. The
circumstance that claimant made the wilful misrepresentation in the course of
her testimony before the referee at the hearing on the merits of her claim for
unemployment insurance benefits cannot alter the conclusion that the statutory
penalty provided for in Section 594 of the Law must be imposed. That section
makes no distinction as to the manner or the place where wilful
misrepresentations are made and provides only that a penalty be imposed upon a
claimant who has wilfully made a false statement or representation to obtain
any benefit under the provisions of the Unemployment Insurance Law.
We are not in accord with
the referee's conclusion that Section 594 is inapplicable for the reason that
the section is found in Title 7 of the Law, (dealing with benefits and claims)
and therefore does not encompass proceedings set forth in Title 8 of the Law.
Section 594 specifically provides that it relates to wilful misrepresentations
made to "obtain any benefit under the provisions of this article"
(underscoring supplied). Titles 7 and 8 are parts of the same Article of the
Labor Law, namely Article 18, which is the Unemployment Insurance Law (Section
500). Consequently, when a claimant, in furtherance of his claim for benefits
under Title 7 of the Law, avails himself of the right to protest an initial
determination, the proceedings which ensue, including the hearing which is held
in pursuance of the provisions of Title 8 of the Law, are part and parcel of
the proceedings by which claimant is attempting to obtain a benefit under the
provisions of Article 18 of the Labor Law. Hence, as in the instant case, when
the claimant wilfully and deliberately testifies falsely and attempts to
bolster such false testimony by producing manufactured, spurious documentary
evidence for the specific purpose of inducing the hearing officer to overrule
the initial determination of ineligibility in reliance thereon, the conclusion
is compelled that such claimant has wilfully made a false statement to obtain a
benefit under the provisions of Article 18 of the Labor Law, as contemplated by
Section 594 thereof.
In arriving at our
conclusion, we do not subscribe to the contention advanced on behalf of the
Industrial Commissioner to the effect that Section 594 was adopted by the
Legislature with the "express intent" of providing "a useful
means or method of deterring the commission of perjury at Appeal Board or
Referee hearings" or that such section was adopted "in order to
provide a means of administrative control of referee and Appeal Board
hearings." Suffice it to say, that it has been conclusively established in
the instant case that this claimant deliberately and wilfully made false statements
and representations by affirmatively producing a document which she knew to be
spurious.
We recognize that not
infrequently the acceptance by the referee of one party's version of the facts
and the rejection of a contrary version in arriving at a decision on a disputed
issue of fact implies that the rejected version is false. However, we do not
hold that in all such instances wherein the claimant's version is rejected, it
necessarily follows that the penalty provided for in Section 594 of the Law is applicable.
We recognize that interested parties may exaggerate and that testimony may be
colored by the desire to present the issues in the light most favorable to the
affiant. In such instances, the issue will be disposed of on the basis of the
hearing officer's evaluation of the credibility of proof, and in the absence of
an affirmative showing of a calculated scheme to deceive the hearing officer,
we would find no basis for an application of the provisions of Section 594 of
the Law.
Likewise, the Industrial
Commissioner is not precluded from issuing the initial determination here under
review by reason of the fact that claimant's actions complained of may
constitute a basis for criminal prosecution. Significantly Section 630,
contained in Title 9 of the Law, dealing with penalties and misdemeanors,
specifically provides that the penalties and misdemeanors therein defined
"are in addition to those otherwise prescribed in this entire
article." Accordingly, we conclude that such false statement by claimant,
under these particular circumstances, constitutes a wilful misrepresentation
made to obtain benefits and requires the imposition of the statutory penalty
(Labor Law, Section 594).
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 20 effective days was
imposed as a penalty in reduction of claimant's future benefit rights is
sustained. The decision of the referee, insofar as appealed from, is reversed. (October
28, 1965)
COMMENTS
A forfeiture penalty
resulting from false statements during the course of a hearing should only be
imposed where, as here, it is "abundantly and unmistakably clear"
that claimant "deliberately and wilfully" made the false statements
or misrepresentations.
As stated by the Board in
the following language, caution should be exercised in applying this principle:
We recognize that not
infrequently the acceptance by the referee of one party's version of the facts
and the rejection of a contrary version in arriving at a decision on a disputed
issue of fact implies that the rejected version is false. However, we do not
hold that in all such instances wherein the claimant's version is rejected, it
necessarily follows that the penalty provided for in Section 594 of the Law is
applicable. We recognize that interested parties may exaggerate and that
testimony may be colored by the desire to present the issues in the light most
favorable to the affiant.
In such instances, the
issue will be disposed of on the basis of the hearing officer's evaluation of
the credibility of proof, and in the absence of an affirmative showing of a
calculated scheme to deceive the hearing officer, we would find no basis for an
application of the provisions of Section 594 of the Law."
Index No. 1137-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 4, 1966
INTERPRETATION SERVICE - BENEFIT CLAIM
VOLUNTARY LEAVING OF EMPLOYMENT
Provoked Discharge
Violation of Contract of Hire
Appeal Board 127,442
(See A-750-1823 comments)
PROVOKED DISCHARGE; REFUSAL TO
SUBMIT TO POLYGRAPH TEST
An agreement to submit to a
polygraph test as a term and condition of employment is unreasonable and,
therefore, a subsequent refusal to do so may not be the basis for
disqualification.
Referee's Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective May 21,
1965, on the ground that she voluntarily left her employment without good cause
by provoking her discharge is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: We have reviewed the evidence
adduced at the hearing before the referee and we find that such evidence
supports the following findings of fact made by the referee and are adopted by
the Board:
Claimant, a cashier, filed
for benefits effective May 24, 1965. By revised initial determination effective
May 21 she was disqualified from receiving benefits because of voluntary
leaving of employment without good cause.
Claimant worked for her
last employer seven months to May 20. She worked 37-1/2 hours per week. Her
hourly rate was $1.30.
At the time claimant was
hired she was advised that employees were required to submit to periodic
polygraph testing. She signed a statement whereby claimant agreed to submit to
the polygraph test if and when required. Claimant and approximately 50 per cent
of the employees that were working at the employer's store were selected on
April 26, at random to submit to the polygraph test. Claimant declined to
submit to the polygraph test. She was subsequently given an opportunity to
recant. When she refused to do so she was terminated. At no time was claimant
advised, either in writing or orally, by any company official that her failure
to submit to this test would result in the loss of her employment. She was
advised by the detective agency hired to administer the test that her failure
to submit would result in the loss of her employment.
To the foregoing, we add
the following findings of fact:
At no time was claimant
given a guarantee as to the competency and qualifications of the individuals
who would administer the polygraph testing, nor was she given any assurance as
to the scope and extent of the examination to be conducted, nor was she advised
of the uses to which the employer intended to put the results.
Appeal Board Opinion and
Decision: After a
review of the entire record herein, we find that the referee rendered a well-reasoned
opinion which is supported by the evidence and the Law, and we herewith adopt
the opinion of the referee as the opinion of the Board:
It
has been consistently held that employees who refuse to submit to a polygraph
test and are subsequently discharged were not subject to a disqualification for
voluntary leaving of employment without good cause.
However,
in the instant case the employer's representative, and the Industrial
Commissioner vigorously assert that submission to the polygraph test was, in
fact, a condition of claimant's employment and had she not originally agreed to
submit to this test she would not have been hired in the first instance.
When claimant was
originally hired she was advised by the employer in writing with respect to the
objectives of the polygraph test. In part the employer set forth its objectives
as, the objective of which (polygraph test) is not to catch thieves (we hope we
have none) but to deter petty larceny on the part of employees who may
unfortunately find themselves with both the need and opportunity to steal.
You will simply be
assisting the company in making this minimal polygraph program an effective
deterrent to employee pilferage.
All
of the questions asked will boil down to one question. "Have you taken any"
money or merchandise from a Twin Fair store for your own personal use for which
you have not paid for and do you know of anyone who has?
We
hope that even the most thoughtless employee will think twice before
jeopardizing his job, his reputation and his future through any dishonest
practice. A polygraph examination has never made a thief out of anyone.
As a result of the
polygraph examination conducted during the latter part of April, 91 employees
were examined, 86 successfully passed the examination and 5 failed to do so.
The question to be decided
is simply whether or not the employer requiring claimant to take a polygraph
test as a term and condition of her employment is reasonable or not.
The proponents of polygraph
testing advocate that the system is a scientific and reasonable method in
ascertaining whether or not the subject is, in fact, telling the truth. Those
who oppose such examinations insist that the polygraph tests are not accurate
and depend upon too many variable factors over which the person administering
the test has no control or which the subject to be examined has no control.
Notwithstanding, it is universally recognized that a polygraph test is not
infallible because of the human variables involved and that the readings and
results of a polygraph test are not necessarily accurate. The physical makeup
of the subject examined results in this inaccuracy since it is common knowledge
that various individuals may do violence to the truth without any appreciable
increase in the pulse rate or the like and that although their answers may be
false, they are not so recorded on the polygraph. Conversely, individuals who
are timid, nervous and the like may give truthful answers and the polygraph may
record them as contrary. Consequently, I must conclude that an agreement to
submit to a polygraph test as a term and condition of employment is
unreasonable and that claimant's failure to submit, even though she had
previously agreed to do so, may not be the basis of her disqualification for
benefits.
By requiring claimant to
submit to a polygraph test as the terms and conditions of her employment, the
employer is attempting to abridge claimant's constitutional rights against
self-incrimination. While it is true that an individual may waive his rights under
the State and Federal Constitution, I know of no case law or any statute,
either at the federal or state level, which requires claimant to waive her
rights in the future as in the instant case. Claimant's rights under the
Constitution are only waived when she actually submits to the examination or
answers questions concerning a subject matter which may tend to demonstrate
that claimant is not taking refuge in the Fifth or Fourteenth Amendment.
Further, the questions asked claimant by the employer not only concerned her
conduct but also the conduct of her co-employees. The latter does nothing more
than to foster co-employees to spy on one another, and is an attempt to have
co-employees act in the capacity of informer on behalf of the employer.
Based on the inherent
defects in polygraph testing, it is conceivable that an individual who has
never violated any employer's rules may fail to pass the test. Accordingly he
would be discharged and allegedly charged with an act of dishonesty which he
did not, in fact, commit. We must not permit the possibility of an individual's
reputation being irreparably harmed on an imperfect and unscientific method of
examination.
Further, the employer's
representative who appeared and testified at the hearing stated in substance
that in the event an employee was examined and the polygraph test was not
favorable, that employee would not be discharged until and unless the employer
secured a confession from the employees. This fact opened another facet which
could conceivably lead to abuse and abridge an individual's rights. Assume, and
we are in no way implying that the employer does engage in the following
practices, that an unfavorable reading was received. It is conceivable that the
employer would subject the employee to an extensive, vigorous and rigorous
examination to the point where the individual may readily confess to any
conduct in order to forego any further interrogation. The employer's argument
carried to its logical conclusion, that is, an unfavorable reading will not
result in a loss of employment unless a confession is obtained, results in an
absurd conclusion. It is difficult to reconcile the employer's position that an
employee will not be discharged in the event of an unfavorable reading and
unless a confession is obtained, but, nevertheless, an employee will be
discharged for the failure to submit to a polygraph test. This rationale is
absurd. If the employee will not be discharged for an unfavorable result, why
should an employee be discharged for failing to submit to the polygraph test.
Therefore, I conclude that
the employer's term and condition of employment that claimant submit to a
polygraph test is unreasonable and consequently she should not have been
disqualified from receiving benefits.
To the foregoing, we add
the following:
The Wisconsin Industrial
Commission had occasion recently to pass upon a substantially similar set of
circumstances in a case involving a claimant who, although initially had signed
an agreement to submit voluntarily to lie detector tests, refused to do so
sometime thereafter when, for the first time, the employer asked that he submit
to the lie detector test and for so refusing he was discharged. The commission
held that the discharge was not for misconduct, and in its explanation stated:
Wisconsin law, and that of
nearly all jurisdictions, does not permit the introduction into evidence of
polygraph or "lie detector" test results under the theory that it
would open the door to abuse that would not promote the cause of justice.
From this initial ruling to
the present time the court has steadfastly maintained this same position and
has refused to admit any such evidence to establish whether a witness is
truthful or untruthful.
In the instant case the
employee was not discharged for stealing and there was no allegation that he
was so discharged. He was discharged solely because of his refusal to take the
test. He refused to take the test because only certain workers were selected
for such test.
Although the employee may
have been said to have breached a condition of his employment or a company work
rule and to have been discharged for such action, in considering whether such
breach is misconduct connected with his employment such condition of his
employment must be assessed in light of the purpose of unemployment
compensation rather than solely in terms of efficient industrial relations.
The employee's action in
refusing to submit to a polygraph test was not an unreasonable act on his part.
His conduct, furthermore, was not an intentional and unreasonable interference
with the employer's interest. For unemployment compensation purposes it would
be unreasonable to expect him to submit to a polygraph test in order to keep
from becoming unemployed in view of the refusal of the State supreme court to
recognize the validity and probative value of such a test.
Under all of the
circumstances of this case the employee' s action in breaching a condition of
his employment by refusing to take a polygraph test in order to keep from
becoming unemployed was not such action as would evince a wilful, intentional,
and substantial disregard of the employer's interests, amounting to misconduct
connected with his employment.
We feel that this reasoning
applies with equal force to the case now before us. We understand that very
often a case will arise where an unemployed worker in his quest for employment
and in his desire to become gainfully employed may agree to certain conditions
of employment set forth by the employer in order to get a job. Oftentimes,
unreasonable conditions are propounded and in this fashion accepted by a needy
worker who, upon realizing the unreasonableness of the conditions, will,
thereafter, refuse to adhere to them. In such situations and where we find that
such conditions were in fact unreasonable, we have consistently held that a
claimant for benefits was provided with good cause for leaving employment under
such circumstances since he was not obliged to adhere to unreasonable
conditions in order to hold on to his job within the purview of the
Unemployment Insurance Law.
In the instant case, the
employer's requirement that claimant submit to periodic polygraph testing was
unreasonable and claimant had valid and compelling reasons for refusing to
accept this condition of her employment. The fact that she had initially agreed
to undergo polygraph testing in order to get the job does not change the
result. While it may well have been the employer's right to terminate
claimant's services in the exercise of its managerial prerogatives, such
termination is not accompanied by disqualifying factors within the purview of
the Unemployment Insurance Law.
The initial determination
of the local office is overruled. The decision of the referee is affirmed. (December
14, 1965)
Index No. 1315-13
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATIONSERVICES OFFICE
February 23, 1966
INTERPRETATION SERVICE - BENEFIT CLAIM
INDUSTRIAL CONTROVERSY
"In the establishment, " Question of
APPELLATE DIVISION DECISION
Matter of Abraham Cohn
Appeal Board 114,827
PARENT AND SUBSDARY CORPORATION
-QUESTION OF "ESTABLIMENT"
If two financially
interrelated employers with interlocking management are engaged in integrated
operations on the same premises, these premises constitute the same
"establishment" for the employees of both employers even though only
one is involved in an industrial controversy, with the result that employees of
the other employer are also subject to a suspension as provided in Section 592
if they lose their employment because of the industrial controversy.
COURT DECISION
The issue on this appeal is
whether the claimant, an employee of the subsidiary corporation, who refused to
cross the picket lines due to a strike of the parent corporation, is entitled
to immediate benefits.
The American Sugar Company
of New Jersey (hereinafter referred to as the parent) is engaged in the
operation of a sugar refinery in Brooklyn, New York. The American Sugar
Refining Company of New York (hereinafter referred to as the subsidiary) is a
wholly owned subsidiary, engaged solely in stevedoring operations for the
parent. Its longshoremen employees unload and transfer raw sugar from cargo
vessels to the adjacent dock of the parent. The sugar is then taken into the
parent building where it is processed. The parent and the subsidiary are
interdependent and operate as one continuing, flowing process.
The employees of both
corporations are members of the International Longshoremen's union but the
record suggests in somewhat different relationships.
There is no serious dispute
as to the facts. The employees of both corporations entered through the same
gates; they registered at the same time clock located in the building of the
parent; the physical act of payment of wage and salary is made by the parent;
the subsidiary's personnel problems appear to be handled by the parent, which
also maintains a medical office or infirmary apparently available to the
employees of the subsidiary, and the billing, record keeping and other
functions necessary to carry on the operations of the subsidiary are performed
by the parent. As to this particular claimant, a timekeeper, his office is
located in one of the buildings of the parent and the records of employment kept
by him are submitted to the parent.
The parent and the
subsidiary have the same officers and the parent owns all of the buildings used
by both.
The Referee found that
"The credible evidence establishes that there was no industrial
controversy in existence involving the entity for which claimant, the
timekeeper, worked. The industrial controversy was between the parent
corporation, a separate legal entity, and its employees". (emphasis
supplied)
Section 592 of the Labor
Law provides that before the suspension clause may be invoked, it must be
determined that the claimant lost his employment "because of a strike,
lockout, or other industrial controversy" and that such strike or other
industrial controversy occurred "in the establishment in which he was employed".
The basic reason for the
Referee's decision was that the parent and subsidiary were separate legal
entities and therefore, claimant's employer (the subsidiary) was not a party to
the controversy between the parent corporation and its employees. While
technically this finding was justified, it should not have concluded the
Referee's investigation, for this is merely one of the factors which enters
into the question of "establishment".
It is obvious that for
business expediency, not labor-management advantage, the different corporations
were organized. The subsidiary is owned, controlled, managed and operated by
the parent, interdependent and integrated and fits within the framework of
"establishment" as outlined by the Court of Appeals in Matter of
Ferrara (Catherwood) (10 NY 2d 1) where, at page 8, after
considering the principle which governed the enactment of the section and that
it must be narrowly construed to carry out the broad humanitarian objectives,
it was stated:
"So read, it is
evident that the term 'establishment' is to be defined in geographic terms
rather than in the terms of corporation organization or exercise of management
powers and functions."
While the facts in that
case involved only one employer (National Air Lines), the principle was applied
simultaneously to several different factual situations. (Matter of
Curatalo (Catherwood) 10 NY 2d 10); Matter of Wentworch
(Catherwood), 10 NY 2d 13). Benefits were allowed when the industrial
controversy was at another establishment. Matter of Gilmartin (Catherwood)
(10 NY 2d 16) is somewhat analogous to the present facts where there were two
distinct legal entities owned by the same individual but different in that the
entities occupied separate premises. In Matter of Lasher(Corsi)(279
App. Div. 505), where nonparticipating employees were laid off due to a strike
in the establishment, this court said at page 507:
"Under
the Unemployment Insurance Law adopted in this State, it is of no consequence
whatever that claimants were not on strike; that they were not aiding the
strike, financially or otherwise; that they were employed in a separate branch
of work; or that they lost their employment through no fault of their own. Such
elements were significantly omitted by the Legislature when our statute was
enacted."
We reversed and remitted
for further findings.
In the Matter of George
(Catherwood) (14 NY 2d 234), benefits were allowed where in a nationwide
strike, locals settled, one by one, even though they were unemployed as the
result of the strike in some local which had not settled. With, reference to
the Ferrara case, the court said at page 240: "Nonparticipants
within a struck establishment are subject to the same suspension of benefits as
those who are engaged in the industrial controversy."
In the Matter of Carmack
(Catherwood)(19 AD 2d 766; affd. 15 NY 2d 768), we affirmed the board's
finding that the claimants were not entitled to benefits and the distinction
which we are now asked to accept is that, in that instance, there were mere
divisions of one corporation (General Motors) involved rather than, as here,
separate corporations. The court did comment that "the Tarrytown divisions
were not separate legal entities" but that was for the purpose of
demonstrating the same factual problem we have here, that the
"establishment" was so integrated and inseparable "when equated
with place and situs" that the terms of corporation organization or
exercise of management powers and functions did not control. Our decision was
buttressed on a factual situation as, indeed, it is here. Assuming arguendo
all of the causes advanced by the claimant, the factual findings made by the
Referee and affirmed by the board are contrary to the principle enunciated in Ferrara.
The parent-subsidiary relationship at the same establishment where management
and work flow are so integrated, as the present facts reveal, cannot be treated
differently than in Carmack, a stronger case for allowing benefits in
that there the actual administrative management was separate. We affirmed the
board's finding of fact denying benefits.
We would further note that
this decision does not go contrary to our holding in Matter of Freeman (Catherwood)
(9 AD 2d 1008) where the situation as to the industrial controversy was similar
but the two employers were separate and had no relationship in common, one to
the other, aside from the association of contractor-subcontractor on a State
construction project.
While at first blush it might
appear that the humanitarian objectives of the statute are not being achieved,
the realism of the situation is that as to unemployment insurance there may
have been one employer at the same establishment, or so the board could find.
The decisions cited are
factually different, but to affirm here, and allow benefits, would be to narrow
the interpretation and meaning of section 592, so that in fact and in law it
would be ineffective to accomplish its purpose, to wit, that there be a waiting
period "so as to avoid imputation that a strike may be financed through
unemployment insurance benefits." In this type of social legislation it is
difficult, at times, to adhere to a line of demarcation but any distinction
should be real and not a technical formality. It is not inappropriate to note
that the strike herein involved was settled within the seven-week period, the
time limitation provided by the section.
The decision of the
Unemployment Insurance Appeal Board should be reversed and the matter remitted
for a determination and finding on the question of "establishment."
(December 28, 1965)
COMMENTS
This Court decision
concludes that there is a single "establishment" for the purposes of
Section 592.1 in the case of two separate legal entities located at the same
site which can be held united "as to unemployment insurance" by the
existence of an interrelationship between the two entities and by integration
of their operations. The question arises what kind of relationship and
integration must exist in order that the enunciated principle applies.
Regarding
the required relationship between the employers, the Court emphasized that a
contractor-subcontractor, that is, a contractual relationship would not
suffice. What is required, therefore, is a structural relationship which may
consist of a financial or managerial interrelationship. In the instant case,
there were both.
It
is hardly conceivable that there will ever be an interlocking management
without a financial relationship, such as exists in cases of common ownership
of the employing entities by an individual or a holding corporation; cases of
parent and subsidiary corporation; cases of two subsidiaries of the same parent
corporation; or other cases where there is a link connecting the two employing
entities in terms of financial interest.
However,
there could be such financial relationship without interlocking management. The
possibility cannot be excluded that a financial relationship would suffice
without identity of management, as long as there is close coordination or
interdependence between the managements, which is likely to exist if they are
responsible to a common master.
The
second element, integration of operation, is demonstrated, as it was in the
here reported case, by dovetailing processes in a sequence of operations or, as
the Court expressed it, by the "work now." However, it would seem
that integration can also take other forms. If, for instance, two employing
entities produce parallel or similar goods or services which are jointly
marketed to other channels, the required integration of operations may exist.
Thus,
if two related companies were, for instance, to manufacture gloves, one
producing leather gloves and the other fabric gloves, both being sold by one of
them or by a parent corporation to wholesalers, integration of a sufficient
degree is likely to exist. However, if two employing entities were to produce
entirely unrelated goods which do not have a common market, for instance drugs
and toys, an integration of operations can hardly exist even if both are owned
by the same interest.
It
is not expected that the occasions to which the new principle applies will be
numerous. Also, factors which, singularly or collectively, demonstrate
interrelationship and integration of a degree, warranting the conclusion that
there is one "establishment" for unemployment insurance purposes,
will in most instances be self-evident. This will be manifested by
circumstances such as these:
The
two entities "are interdependent and operate as one continuing, flowing
process"; management and work flow are closely coordinated; there is
common use of equipment; functions essential for the operations of one are
performed by the other.
As always, local offices
may submit difficult and borderline cases through channels for assistance. It
should be kept in mind that the principle can apply only if the following
conditions are met:
Index No. 1580D-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 7, 1966
INTERPRETATION SERVICE - BENEFIT CLAIM
MISREPRESENTATION
Penalty Period - Liquidation of
Appeal Board 129,036
REPETITION OF FALSE STATEMENT
(SINGLE OFFENSE) -COMMENCING DATE OF TWO-YEAR LIMITATION
Where there is a repetition
of the same false statement constituting a single offense, the two-year
limitation for serving the forfeiture penalty is computed from the last date on
which the offense is committed.
Appellant: The claimant appeals from the
decision of the referee filed December 17, 1965, insofar as it sustains the initial
determinations of the local office holding claimant ineligible to receive
benefits effective various periods running from October 1, 1962, through
September 13, 1964, on the ground that he was not totally unemployed; charging
claimant with an overpayment of $1850 in benefits ruled to be recoverable, and
holding that claimant wilfully made false statements to obtain benefits by
reason of which a forfeiture of 75 effective days was imposed as a penalty in
reduction of claimant's future benefit rights, as modified by the referee to
hold that the period for serving the forfeiture penalty had expired. The
Industrial Commissioner appeals from the referee's decision, insofar as it
rules that the period for serving the forfeiture penalty for the wilful misrepresentations
to obtain benefits had expired.
Findings of Fact: Claimant, a chef, on or about
October 1, 1962 formed a corporation to engage in the catering business. He
invested at least $1000 for fixtures and equipment. Claimant and his wife were
the principal stockholders of the corporation, which commenced operations on
October 1, 1962 in premises leased by claimant at a rental of $50 per month.
From that time until March 1965, when claimant permitted the corporation's
license from the Department of Health to expire, he performed managerial and
other services in connection with the business, such as the preparation, sale
and delivery of foodstuffs. Claimant considered the business a hobby because he
devoted a few evenings a week thereto and was simultaneously employed by
another catering firm on a full-time basis.
Following a layoff from his
regular job, a few weeks prior to forming the corporation in question, claimant
filed an original claim for benefits effective September 3, 1962. He thereafter
filed additional claims for benefits, encompassing two successive benefit
years, and received benefits in the total amount of $1850 during these years.
On each of his reporting days from October 10, 1962 through September 16, 1964,
claimant certified that he was totally unemployed and available for employment;
and did not disclose his status as an officer and principal stockholder of the
catering corporation nor his activity in connection therewith. On and after
September 11, 1963, claimant completed three questionnaires specifically asking
whether or not he was self-employed, or an officer or stockholder of a
corporation by which he had been employed or to which he had rendered services
in the preceding year and in each instance claimant answered "no" to
such questions.
Appeal Board Opinion and
Decision: We agree
with the conclusion of the referee that claimant's status and activity as a
principal stockholder and officer of the corporation created a lack of total
unemployment, which rendered him ineligible to receive benefits during the
periods in issue; that his certifications to total unemployment and concealment
of his status in the corporation, constituted wilful misrepresentations to
obtain benefits; and that the benefits he received constitute overpayments which
are recoverable, because they were obtained as a result of such wilful
misrepresentations.
However, we do not agree
with the referee's conclusion that the period for serving the forfeiture
penalty for the wilful misrepresentations to obtain benefits had expired,
merely because they constituted a single offense and more than two years had
elapsed since the first occasion on which claimant made the misrepresentation.
We conclude that such limitation should be computed from the last date on which
the offense was committed, even though it related to a single fact or status
and each occasion was merely a repetition of the same false statement. Claimant
on each of his reporting days up to September 16, 1964, kept alive the wilful
misrepresentation to obtain benefits by consistently repeating it. The period
for serving the forfeiture penalty did not expire, since it must be computed
from September 16, 1964.
The initial determinations
of the local office are sustained. The decision of the referee is modified accordingly
and, as so modified, is affirmed. (March 21, 1966)
Index 1325-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATIN SERVICES OFFICE
May 31, 1966
INTERPRETATION SERVICE - BENEFIT CLAIMS
STRIKE OR OTHER INDUSTRIAL CONTROVERSY
Termination of
APPELLATE DIVISION DECISION
MATTER OF LOUIS S.ACQUISTO, et al
Appeal Board 114,688A
INDUSTRIAL CONTROVERSY SUSPENSION,
TERMINATION OF; CONTINUED UNEMPLOYMENT AFTER SETTLEMENT
An industrial controversy
suspension terminates when the dispute between labor and management is settled
and, therefore, no longer applies to a claimant who remains unemployed
thereafter even though such continued unemployment is due to circumstances causally
connected with the dispute, such as a need for gradual resumption of
operations.
APPELLATE DIVISION DECISION
This is an appeal by the
employer from decisions of the Unemployment Insurance Appeal Board awarding the
claimants unemployment benefits.
The claimants, employees of
the employer's Buffalo, Tonawanda and Massena plants, went on strike on
September 11, 1961 in a dispute over both national and local issues.
Negotiations commenced forthwith and at the Buffalo plant a "memorandum of
understanding" was signed on September 16, this document concluding the
strike there, subject to ratification which was forthcoming. Operations were
started up at Buffalo on September 15, but it was not until September 26 that
work was fully resumed. At Tonawanda a memorandum of understanding was signed
on September 24, operations were started on that date, and were fully resumed
on September 28. At Massena the memorandum was signed on September 20, work was
started that day and was fully resumed by September 27. A national memorandum
of understanding was signed on September 20 and a full agreement was signed on
September 26 with ratification coming on October 2. The sole question presented
here is whether the claimants are barred by virtue of § 592 (1) of the Labor
Law from receiving unemployment benefits for the period between the signing of
their local memorandums and the resumption of full operations at their
respective plants. The employer urges initially that despite the earlier local
settlements and the fact that the plants actually resumed some operations, the
industrial controversy did not terminate until September 26 when the full
national agreement was signed and thus that no benefits could be accrued prior
to that date.
We cannot agree. In Matter
of George [Catherwood] 14 NY 2d 234, 239, 240) the Court of Appeals stated:
"The statute in
question [§ 592 (1)] expressly limits such considerations to single
establishments"
"The denial of
benefits where unemployment results from a dispute 'in the establishment in
which [the claimant] was employed' strictly limited by Matter of Ferrara
[Catherwood] (1 NY 2d 1) to the geographic location of the employment
regardless of what the Appellate Division correctly recognized here as a highly
integrated nationwide industry. In the face of the Ferrara case it
cannot be said that the several plants involved in this case constitute a
single establishment. The Appellate Division avoided the establishment concept
and simply regarded participation in the nationwide strike to be an adequate
predicate for a holding of voluntary unemployment until all plants were again
in operation. While statutes in other States may be framed differently (United
Steel Workers v. Board of Review, 12 Utah 2d 136), in this State
participation in a multi-establishment strike is not the criterion of an
individual's right to unemployment benefits. As the Ferrara case shows,
non-participants within a struck establishment are subject to the same
suspension of benefits as those who are engaged in the industrial controversy.
So, conversely, employees in an establishment in which no dispute presently
exists, even though they were participants in the initial multi-plant
controversy, are not denied benefits where their unemployment is traceable
solely to a controversy in another establishment."
Thus quite clearly in
dealing with the benefit rights of a given worker at a given plant, we are not
concerned with what developed nationally, but only with what transpired
locally.
Appellant additionally
asserts that benefits are not available if unemployment is due to a necessary
gradual resumption of full operations in an establishment. It is urged that
since the strike caused the shutdown and only a gradual resumption of
operations was possible thereafter, the claimants remained out of work
"because of a strike" which was not therefore "terminated"
until full operations resumed. While other jurisdictions have embraced this
position (Leach v. Republic Steel Corp., 176 Ohio St. 221, 199 NE
2d 3), we find no clear holding determinative of this question in this
State. Matter of George (supra); while it holds that unemployment due to
industrial controversy at another establishment does not preclude benefits if
the controversy at the employee's establishment is settled, does not directly
answer this question. Nor is the admittedly analogous case of Matter of
Vingoe [Bethlehem Steel Co.] (285 App. Div. 160) a binding
precedent in the instant case since in Vingoe, unlike the present case,
there was no termination of the labor controversy. As this court noted in Vingoe,
the Presidential seizure, while averting an actual work stoppage, did not
terminate the labor controversy.
Faced then with a question
of relatively first impression in this State, we are constrained to find that
benefits were properly awarded. The labor controversy here invoked was clearly
terminated in the sense that the dispute between labor and management had been
settled, and, therefore, the legislative purpose in denying financial assistance
during the course of the controversy had been satisfied. Thus even though the
unemployment involved was obviously causally connected to the labor
controversy, we find no basis to hold that the labor controversy was not
terminated within the meaning of § 592(1). The lack of work occasioned by the
necessity for gradual resumption of production is merely an incident of the
particular industry which is outside the purview of the statute and over which
neither side has any control. We can find no compelling reason here "in
attributing a vicarious voluntariness to the post-settlement unemployment"
in view of the Court of Appeal's rejection of such a position in Matter of
George (supra, at 239).
The decisions should be
affirmed. (May 6, 1966)
Index 1205D-2
1605D-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 15, 1966
INTERPRETATION SERVICE - BENEFIT CLAIM
REFUSAL OF EMPLOYMENT
Termination of Disqualification
Appeal Board Case Number 129,914
REFUSAL DISQUALIFICATION,
TERMINATION OF: BACK PAY AWARD
A back pay award for
wrongful discharge, covering a period subsequent to a refusal disqualification,
is "earned" remuneration for employment usable in terminating the
disqualification (Section 593.2).
Referee's Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective November
15, 1965 on the ground that effective August 16, 196, claimant had been
disqualified from receiving benefits on the ground that without good cause he
refused employment for which he is reasonably fitted by training and experience
and that claimant did not have any subsequent employment or earn at least $200
remuneration to break said disqualification is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, an assembler, was laid
off immediately prior to July 5, 1965. He filed for benefits effective July 5,
1965, and was paid benefits through August 15, 1965. By an initial
determination he was disqualified for refusal of employment without good cause
effective August 16, 1965. Claimant contested such initial determination, but
after a hearing before a referee and an appeal by claimant from the referee's
decision, the Appeal Board issued its decision affirming the decision of the
referee sustaining the initial determination (Appeal Board, 127,805).
Following claimant's
layoff, he filed a grievance through his union, complaining that the employer
had violated provisions of the collective bargaining agreement by failing to
provide claimant with work and assigning such work to persons in other
occupational classifications. In pursuance of the provisions of the collective
bargaining agreement, the grievance proceeded to arbitration and on November
10, 1965 the grievance was sustained and an award was made holding that the
employer violated the seniority provisions of the contract by having persons in
other occupations perform work which should have been performed by claimant and
others, and directing the employer to reimburse claimant for time lost from
April 21, 1965 to the date of the award, less any monies earned or benefits
received.
In pursuance of such award,
claimant received his full weekly pay for all weeks during which he was in
layoff status through November 10, 1965, aggregating approximately $1,500.
Approximately $100 of the back pay award was allocated to claimant's loss of
earnings between August 16, 1965 and November 10, 1965. Claimant was not reinstated
to his job and continued to be unemployed subsequent to November 10, 1965.
On November 15, 1965
claimant refiled a claim for benefits. He made known the nature of the award
made by the arbitrator and acknowledged the receipt by him of the back pay.
Accordingly an initial determination was issued that claimant was not totally
unemployed during the period for which he claimed benefits from July 5, 1965
through August 15, 1965, and he was charged with a recoverable overpayment of
$314.50 representing the benefits paid to him for that period. Claimant did not
protest that initial determination and he repaid the overpayment. However, he
asserted his claim for benefits for the period beginning with November 15,
1965, but an initial determination was issued that the initial determination
which disqualified him from receiving benefits for refusal of employment
effective August 16, 1965 continued in effect and was not terminated by the
arbitrator's award or the payment received by claimant thereunder.
Claimant maintained that
the arbitrator's award and the payment received by him thereunder served to
terminate the disqualification theretofore issued.
Appeal Board Opinion and
Decision: The
precise issue here presented is one of novel impression. However, prior court
decisions determining the effect of awards of back pay on rights and
liabilities under the Unemployment Insurance Law establish the principles which
point to the result in this case.
In Matter of Tonra,
283 N.Y., 616 affirming without opinion 285 App. Div. 835 affirming Appeal
Board 1019-39, it was held that monies paid to an employee as "back
pay" constitute "wages" as defined in the Unemployment Insurance
Law, and again in Matter of McCoy, 262 App. Div. 790, affirming Appeal
Board 2559-40, it was held that monies paid as "back pay" pursuant to
an order of the National Labor Relations Board constitute "remuneration
and wages within the meaning of the Unemployment Insurance Law". If in
arriving at the same conclusion in Matter of Skutnik, 268 App. Div. 357
affirming Appeal Board 9623-43, Mr. Justice Brewster, writing for the Supreme
Court Appellate Division 3rd department, said:
"In going on a strike
the claimants, in a sense, took the position that because their employer was
guilty of unfair practices they were justified in refusing to perform the
duties of their employment and in prosecuting their complaints, that, although
on strike, they were entitled to their wages. In this they were upheld and the
award of their 'back pay' can, I think, only be held to have been compensation
to them for the time during which, but for the strike, they would have been
employed in the usual sense of the word. The award of their 'back pay' bespeaks
their employment during the period they were thus held to have been justified
in refraining from the actual performance of work. Thus, they did not suffer
'total unemployment' and the awards made on account thereof were properly held
invalid."
Recognizing that a
retroactive award of back pay thus renders a claimant ineligible for those
benefits which may have been paid to him pending the issuance of the award, and
that unless provision were made for the repayment of those benefits, a claimant
would be unjustly enriched by having received benefits for a period when he was
not totally unemployed because, retroactively, he received compensation from
his employer, the legislature provided in Section 597 of the Law that the
Industrial Commissioner is authorized to review an initial determination within
six months from a retroactive payment of remuneration and that, notwithstanding
the good faith of the claimant, and the absence of any false statement or
representation or wilful concealment of pertinent facts, the overpayment thus
resulting is recoverable. It was in pursuance of such legislative mandate that
claimant was required to and did repay the sum of $314.50 theretofore paid to
him prior to the making of the arbitrator's award.
Notwithstanding the settled
Law to the effect that a claimant is not totally unemployed in a period for
which he receives back pay and that the monies so received by him constitute
wages and remuneration within the purview of the Unemployment Insurance Law, it
is here contended that Section 593.2 of the law precludes claimant from
receiving unemployment insurance benefits for the period of his unemployment
following the issuance of the award and for periods for which he is not
entitled to any back pay. Reliance is placed upon the language of Section 593.2
which specifies that the disqualification therein provided for shall remain in
effect "until he has subsequently worked in employment on not less than 3
days in each of 4 weeks or earned remuneration of at least $200." To
credit such contention we would be required to conclude that the back pay award
which claimant received for the period beginning with August 16, 1965 did not
constitute remuneration and that claimant was not in employment on the days for
which he was paid in pursuance of such award. The court precedents above cited
mandate a contrary conclusion. To paraphrase the language of Mr. Justice
Brewster in the Skutnik case, supra, - claimant took the position
that because the employer was guilty of unfair practices, he was prevented from
performing the duties of his employment, and in prosecuting his complaint, he
maintained that although he performed no services he was entitled to his wages.
The back pay award which claimant received can only be held to have been
compensation to him for the time during which, but for the employer's wrongful actions,
he would have been employed in the usual sense of the word. The award of the
back pay bespeaks his employment during the period that he was thus held to
have been prevented by the employer from the actual performance of work.
Therefore he did not suffer total unemployment and, in essence, he continued to
be employed from at least August 16 through November 10. Moreover, as was held
in the Tonra and McCoy cases, supra, the back pay award
constituted remuneration. In view of the finding of the arbitrator, it cannot
be argued that such remuneration was other than "earned"
remuneration. Accordingly, we conclude that when claimant refiled the claim in
issue effective November 15, 1965, the conditions required to terminate the
disqualification previously imposed had been met and the disqualification was
no longer in effect.
The initial determination
of the local office is overruled. The decision of the referee is affirmed.
(June 2, 1966)
COMMENTS
Although the decision
involves a refusal disqualification, a back pay award may also serve to
terminate a disqualification for voluntary leaving, marriage, following spouse
and misconduct.
Index No. 915B-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 28, 1966
Interpretation Service - Benefit Claim
DETERMINATION OF BENEFITS
Pensions - Benefit Rate Reduction
Appeal Board Case Number 130,463
BENEFIT RATE REDUCTION - LUMP-SUM
PENSION ALLOWANCES IN INSTALMENTS
If a claimant, instead of
receiving a current pension, elects to be paid its present cash value in two
(or more) installments, his benefit rate is subject to the reduction provided
by Section 600 but the amount thereof is the weekly equivalent of the pension
as it would have been payable to him in the absence of such election.
Referee's Decision: The initial determination of the
local office reducing claimant's benefit rate from $55 weekly to $14 weekly on
the ground that one-half of a pension received by claimant from his base-year
employer had to be deducted from his benefit rate is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, an electrician, 75 years
of age, filed a claim for benefits effective January 3, 1966, after he was
compulsorily retired by his last employer effective December 31, 1965.
Claimant, upon his retirement, became eligible to receive a pension of $73.31
monthly, under a retirement plan promulgated by the employer and to which it
contributed more than 50 per cent but less than 100 per cent. Such payments
were guaranteed to claimant for the duration of his life or, at least ten years
so that if he were to die within ten years, the difference between the
aggregate payments received by him and that which would have been paid to him
during a ten-year period would become payable to his estate. Claimant had an
option under the plan to receive in a lump sum the present cash value of the
pension. At the time of claimant's retirement, the cash value of his pension
was $8559.61. Claimant preferred to receive a lump sum rather than monthly
payments. However, he desired to avoid the excessive tax liability which would
result from a single lump sum payment of upwards of $8,000, and, therefore, he
agreed with the employer to receive his pension in two payments; the first half
to be paid in January, 1966, and the final payment in January, 1967. With the
addition of the interest which would accrue on the second payment between
January 1, 1966, and the date when it would become payable in 1967, the total
lump sum payment was $8706.84, payable in two equal installments.
At the time claimant filed
the claim here in issue, he had not yet elected to receive the lump-sum
payments in lieu of monthly payments but his option was exercised during
January, 1966, subsequent to the filing of the claim.
Appeal Board Opinion and
Decision: The issue
to be here determined is whether the payments which claimant received and is
entitled to receive from the employer constitute a pension or retirement
payment which requires a reduction of his benefit rate.
Section 600 of the Law
enacted in 1963, provides as follows:
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 rate for four effective days otherwise applicable
under subdivision seven of section five hundred ninety shall be reduced as
hereinafter provided.
2. Application. The
reduction shall apply only to benefits which when paid will be chargeable to
the account of the employer who provided the pension or retirement benefit.
3. Amount of reduction. * *
* If the pension or retirement payment is made under a plan to which the
employer is not the sole contributor, the claimant's benefit rate shall be
reduced by the largest number of whole dollars which is not more than one-half
of the prorated weekly amount of his pension or retirement payments under such
plan, but no such reduction shall apply if the claimant demonstrates that the
employer contributed less than 50 per cent to the plan.
It is undisputed that the
sum of $8,706.84 which the employer has undertaken to pay to the claimant is
payable due to the claimant's retirement and under a plan which was financed in
part by the employer to the extent of 50 per cent or more and that the account
of the employer who is making such payments is chargeable with the benefits to
be paid hereunder to the claimant.
The referee has,
nevertheless, concluded that no reduction is to be made from claimant's benefit
rate on the theory that because claimant had elected to receive lump-sum
payments rather than monthly payments, the provisions of Section 600 of the Law
are inapplicable. In support of his conclusion, the referee relied upon a
statement contained in a Special Bulletin issued by the Interpretation Section
of the Field Operations Bureau of the Division of Employment wherein the
following statement appears:
If the claimant has
exercised an option for the receipt of a lump payment in lieu of a current
pension, no reduction applies to his benefit rate. There is no pension which he
is receiving currently and there is nothing which could be prorated to the
week.
The referee reasoned that
if no reduction applies in an instance where a claimant receives a single lump
payment, the same rule should apply where the claimant elects to have the lump
payment divided into two installments.
We are not in accord with
the referee's conclusion. The basis for the interpretation placed upon the
statute by the Interpretation Section of the Field operations Bureau is not
readily apparent. While there may be some merit to the view that if a claimant
receives a single lump payment prior to the filing of his claim for benefits,
he is not receiving a pension currently while he is a claimant for
benefits. Nevertheless, such construction would have no application to the
facts herein because the first installment of the retirement payment was made
to the claimant after he had become an applicant for benefits and, hence, he
did currently receive a retirement payment. Accordingly, it is
unnecessary for us to decide the validity of such interpretation in other
instances of a single lump-sum payment. Suffice it to say, that under the facts
in the instant case, it is clear that claimant received and is entitled to
receive retirement payments of the nature described in Section 600 of the Law
and, therefore, a reduction of his benefit rate is required.
Although some reduction of
claimant's benefit rate is mandated by the Law, we do not agree that the rate
should be reduced by $41 to $14 weekly. Apparently, the Commissioner's
representatives deducted from claimant's weekly benefit rate 1/52nd of 50 per
cent of $4353.42, the installment of the retirement payment which claimant
received in January, 1966. In our view, such computation is not authorized by
the statute. The payment of $4353.42 which claimant received in January, 1966,
was in no sense a retirement payment for the year 1966. Clearly, that
sum represented one-half of the cash value of a retirement payment of $13
monthly for the duration of claimant's life or, at least ten years.
Consequently, only 12 times $73.31 represents the portion of the payment which
can be allocated to 1966. Accordingly, in our judgment, $879.72 represents the
retirement payment which is allocable to 1966. On this basis, the approximate
prorated weekly amount of claimant's retirement payment is $17.08. Since
claimant's benefit rate must be reduced by one-half of that amount, it follows
that claimant's benefit rate should be reduced by $8 weekly, from $55 to $47
weekly, and we so hold.
The initial determination
of the local office is modified to the extent that claimant's benefit rate is
established at $47 weekly by reducing his $55 weekly benefit rate by $8, and,
as so modified, the initial determination is sustained. The decision of the
referee is reversed. (June 14, 1966)
Index No. 1690-7
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July 1, 1966
INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Pension or Retirement
Appeal Board Case Numbers UCFE-1772 and UCFE-1813A
ELECTION TO RETIRE IN ORDER NOT TO
FORFEIT SUBSTANTIAL PENSION RIGHTS
A claimant who exercises an
option to retire before a given date so as to receive a substantial increase in
retirement annuities (8.1%), 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.
Appeal Board Decision UCFE-1772
The claimant appeals from
the decision of the referee, filed March 8, 1966, sustaining the initial
determination of the local office disqualifying claimant, a former Federal
employee, filing for unemployment compensation under Title XV, of the Social
Security Act, as amended, from receiving benefits, effective December 31, 1965,
on the ground that he voluntarily left his employment without good cause.
Findings of Fact: Claimant, a warehouseman, 66 years
of age, accumulated 27 years of Federal service. He voluntarily retired from
the United States Coast Guard, where he was last employed, effective December
3O, 1965, and the Federal agency so reported. Claimant elected to retire when
he did solely to avail himself of the benefits provided by legislation enacted
into law by Congress during 1965.
Congress has been engaged
in a study of the adequacy of retirement benefits payable under the Civil
Service Retirement Act. The study had not progressed to the point where it was
deemed advisable to enact permanent legislation in 1965, to correct the
situation which Congress deemed necessary in order to provide retirement
benefits commensurate with the increase in the cost-of-living price indices
and, therefore, during 1965, interim legislation was enacted which provided for
increases in the retirement allowances to those employees who elected to retire
no later than December 30, 1965. It was indicated in the reports of the
Congressional committees that it is anticipated that during 1966 the various
studies being made will have been completed and that Congress will then have
the benefit of the research and opinions of the President's Cabinet Committee
on Federal Staff Retirement Systems, concerning the full scope of Federal
retirement systems, thus enabling Congress to give consideration to permanent
changes in the law. However, the legislation enacted in 1965 provided that
those employees eligible for retirement who elected to retire subsequent to the
enactment of the law and no later than December 30, 1965, would receive an
increase in the retirement annuities to which such employees would ordinarily
be entitled by approximately 8.1 per cent. After the enactment of the
legislation, the United States Civil Service Commission, Bureau of Retirement
and Insurance, issued a release to all Federal employees advising them of the
enactment of the legislation and its effect and pointing out, among other
things, that if an employee who was eligible to retire on or before December
30, 1965, did not elect to voluntarily retire but continue in service
thereafter, he would receive an annuity substantially equal to that which he
would have received by retirement prior to December 30, 1965, if he remained in
service for a specific period of time thereafter, measured in length by the
number of years of service up to December 30, 1965. It was indicated in such
release that an employee with 25 years of service would receive an annuity
equal to the increase provided by the 1965 legislation if he continued in
employment for 23 additional months and received no salary increases in the
interim. The period of continuous service would be shortened to as few as eight
months if, in the interim, such person received high salary increases. A person
having more than 25 years of service as of December 30, 1965, but less than 30
years of service at that time, would have to remain in service for a maximum of
23 to 28 months and a minimum of 8 or 9 months.
In view of claimant's age
on December 30, 1965, he would not be compelled to retire from Federal service
until after the expiration of approximately four years.
Claimant did not intend to
withdraw from the labor market upon his retirement but he intended to seek
other employment. He filed the claim here in issue within two weeks after the
effective date of his retirement, certifying his readiness, willingness and
ability to accept other employment.
Appeal Board Opinion and
Decision: We have
repeatedly held that a worker who voluntarily retires from employment solely to
avail himself of the benefits of a retirement allowance or pension is subject
to disqualification from unemployment insurance benefits for having voluntarily
left his employment without good cause so long as he had no intention at the
time of his retirement of withdrawing from the labor market. We pointed out in
those cases that the reason which prompted the leaving of employment was purely
personal in nature and did not constitute good cause within the purview of the
Unemployment Insurance Law (Appeal Board, 123,725; 111,121). However, because
we recognize that it is sound social policy for superannuated workers to
withdraw from the labor market to enjoy the benefits of a retirement allowance
or pension to which they become entitled, a worker who leaves his employment to
permanently withdraw from the labor market in order to enjoy his retirement
allowance is provided with good cause to leave his employment (See Appeal
Board, 114,895; 112,384; 109,880). We have also held that in instances where a
worker would suffer a substantial financial loss or be required to forfeit
substantial benefits by failing to avail himself of the right of retirement at
a given time, his leaving of employment to avoid such detriment is with good
cause under the Law, notwithstanding that he has no intention of withdrawing
from the labor market (Appeal Board, 78,477).
On the basis of the
principles enunciated in the cited cases, it follows that since claimant
intended to remain in the labor market following his retirement, his leaving of
employment was without good cause unless the evidence establishes that if he
had failed to exercise his option to retire, he would have suffered a financial
loss or would have forfeited substantial benefits. Viewing the evidence herein
in this light, we are compelled to conclude that claimant would not have
suffered any substantial loss or forfeiture if he failed to avail himself of
the right to retire effective December 30, 1965. Claimant had the right to
continue in employment for approximately four additional years. The reports of
the Congressional committees gave indication of the likelihood of the enactment
of permanent amendments to the Civil Service Retirement Act, which would
provide benefits to those who continued in service, at least equal to those
provided for employees who had elected to retire effective December 30, 1965.
Moreover, even if no action were taken by Congress subsequent to 1965, and
during the remainder of the time that claimant could have continued in the
employ of the Federal government, he would have had full opportunity to be
placed in at least the same status by completing no more than 28 additional
months of service.
Under these circumstances,
we are compelled to conclude that claimant's election to retire on a voluntary
basis rather than to continue in employment until he reached the mandatory
retirement age was a leaving of employment without good cause.
The initial determination
of the local office is sustained. The decision of the referee is affirmed.
(June 15, 1966)
Appeal Board Decision UCFE-1813A
The claimant applies,
pursuant to Section 534 of the Law, to reopen and reconsider the decision of
the Board filed March 29, 1966, (Appeal Board, UCFE-1161) affirming the
decision of the referee filed March 3, 1966, sustaining the initial
determination of the local office disqualifying claimant, a former Federal
employee, filing for unemployment compensation under Title XV of the Social
Security Act, as amended, from receiving benefits, effective December 31, 1965,
on the ground that he voluntarily left his employment without good cause.
Findings of Fact: Claimant, a conveyer mechanic,
accumulated more than 30 years of Federal service as of December 30, 1965, the
effective date of claimant's voluntary retirement from the United States Post
office where he had been employed. Claimant would have reached his 70th
birthday on February 21, 1966. The Federal agency reported that claimant's
employment terminated because he "retired (age and service)."
Claimant elected to retire
when he did, in order to avail himself of the benefits of the legislation
adopted by Congress during 1965 which entitled him to have his retirement
annuities increased by approximately 8.l per cent upon condition that his
retirement became effective no later than December 30, 1965. If claimant had
not retired on or before December 30, 1965, he would have forfeited the right
to the increased pension because he would have reached the mandatory retirement
age within two months thereafter and in order to earn a pension equivalent to
that which was payable to him on December 30, 1965, he would have had to remain
in the Federal service for many months in excess of that which elapsed between
the date of his retirement and the date on which he attained the mandatory
retirement age.
The Industrial Commissioner
has joined in claimant's application for reconsideration of the prior Appeal
Board decision and has joined in the request that such decision be rescinded
and that the decision of the referee be reversed.
Appeal Board Opinion and
Decision: In our
decision in Appeal Board, UCFE-1772, intended to be issued simultaneously
herewith, we have set forth the principles which determine whether a leaving of
employment by a Federal employee to avail himself of the benefits of the
statutory provisions for increased pension provided the worker with good cause
within the purview of the provisions of the Unemployment Insurance Law. Our
decision in such case is incorporated herein by reference as though fully set
forth herein.
Based upon the principles
enunciated in the cited case, it is apparent that claimant had good cause to
leave his employment because he would have suffered a substantial financial
detriment if he had failed to avail himself of the right to voluntarily retire
effective December 30, 1965. It was mandatory that claimant's employment would
terminate within two months after the effective date of his retirement. There
was no reasonable likelihood that legislation would be enacted prior to
claimant's 7Oth birthday which would have resulted, in providing him with a
retirement allowance equal to that which was available to him by his retirement
on December 30, 1965. His age prevented him from continuing in employment for
the required number of months necessary to enable him to recoup the reduction
in his pension which would have come about by his continuance in service after
December 30, 1965. Accordingly, claimant left his employment for compelling
reasons and, therefore, his leaving must be held to have been with good cause
(See Appeal Board, 78,477).
Claimant's application to
reopen and reconsider the decision of the Appeal Board filed March 29, 1966
(Appeal Board, UCFE-1161) is granted and the said decision is hereby rescinded.
The initial determination
of the local office is overruled. The decision of the referee is reversed.
(June 15, 1966)
COMMENTS
This release further
emphasizes the principle contained in Release A-750-1542, that a claimant, who
exercises an option to retire in order not to forfeit substantial benefits,
leaves with good cause when continuance on the job would result in a
substantial financial sacrifice.
Index No. 910-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July 21, 1966
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Base year earnings and employment
Appeal Board Case Number 127,681
RE-USE FEES – FILMED TELEVISION
COMMERCIALS; "REMUNERATION"
Re-use fees for television
commercials filmed and paid to the claimant during his base period is
"remuneration" (Section 517) which must be taken into account in
calculating his average weekly wage for establishing his benefit rate.
Referee’s Decision: The initial determination of the
local office denying to the claimants a higher benefit rate based on additional
remuneration by way of re-use fees or residuals received by each of the
claimants is sustained.
Appealed By: Claimants
Findings of Fact: Each of the claimants is a
television artist and is a member of either Screen Actors Guild (hereinafter
referred to as SAG) or the American Federation of Television and Radio Artists
(hereinafter referred to as AFTRA). Each of the claimants performed services
during his base period for the respective employers herein, in pursuance of the
provisions of the collective bargaining agreements between such employers and
the unions of the respective claimants. Such services consisted of performing
before camera for television commercial films. The films produced as a result
of such performances were used and re-used by the respective employers for
commercial purposes. Each of the claimants received the specific wage fixed by
union agreement for his appearance before the camera and he received
additionally, the stipulated monies for the re-use of the films.
Each of the claimants
actually rendered services in covered employment for a sufficient number of
weeks during the respective base periods to qualify for benefits, but the
benefit rate of each claimant was computed on the basis of the monies received
by each of the claimants for their respective appearances before camera and the
monies received by the claimants for the re-use of the films in which they appeared,
were not included as part of the remuneration to be used as a basis for
establishing the benefit rate of each claimant. Claimants protested and each
requested a higher benefit rate resulting from the inclusion of such re-use
fees.
The re-use fees, which each
claimant received, were paid by the employers in pursuance of the contracts of
hire between such employers and the respective claimants and in accordance with
the provisions of the collective bargaining agreements. The pertinent
collective bargaining agreement between SAG and the employers provides with
respect to re-use fees that
"Compensation
to players in commercials is based both on the services which the player
renders in the production of such commercials and on the use which is made of
the finished commercial in which the player has rendered services. This dual
basis of compensation springs from the unique nature of the services rendered
by players in commercials. The Guild contended that a player rendering services
in a commercial performs, to a great extent, the duties, of a demonstrator or
salesman of a particular product or service and as such tends to be identified
with that particular product or service.
The
producer, realizing the singular nature of this kind of service and that the
re-use of a commercial may limit or curtail further employment opportunities
for the players appearing in the commercial, has agreed to this unique method
of compensation."
The agreement further
provides,
"Session
fees, use and re-use compensation and all other compensation paid to players
covered by this contract for or in connection with the making and use or re-use
of commercials constitute wages and as such are subject to social security,
withholding, unemployment insurance taxes and disability insurance taxes.
Advertising agencies or others who assume the contractual obligation to make
such payments shall also make the required payments and/or report and
withholding with respect to such taxes."
The collective bargaining
agreement of AFTRA, contains substantially similar provisions with respect to
compensation for re-use of the films and provides further.
"Session
fees, use and re-use compensation and all other compensation paid to persons
covered by this Code for or in connection with the making and use or re-use of
commercials constitute wages and as such are subject to social security,
withholding, unemployment insurance taxes and disability insurance taxes.
Advertising agencies or others who assume the contractual obligation to make
such payments shall also make the required payments and/or report and
withholding with respect to such taxes."
There is no dispute with
respect to the amounts paid to the respective claimants either for their
appearances before camera or for re-use fees or residuals during the base
period, nor do any of the employers herein dispute liability for contributions
based on any of such monies received by claimants.
Appeal Board Opinion and
Decision: The
nature of re-use fees or residuals received by television or radio artists was
considered by the Appeal Board and by the Appellate Division of the Supreme
Court, Third Department, in Matter of Price, Appeal Board 56,753;
61,788. (Latter decision affirmed 9 AD 2d 561.) In the cited case, the issue
presented as whether the claimant was entitled to be credited with a week of
employment in each week when the film was re-used by the employer for
commercial purposes, and for which the employer paid the artist the re-use fee.
Originally, the Board held that such week constituted a week of employment as
defined by the Unemployment Insurance Law, and that the claimant was entitled
to be credited therewith in establishing qualification for benefits (Appeal
Board 56753-56). However, upon reconsideration, the Board rescinded such
decision and held that the re-use of a film previously made did not entitle the
claimant to credit of a week of employment for the week in which such re-use
was made (61788-57). Such reconsidered decision of the Board was affirmed by
the Appellate Division of the Supreme Court, Third Department in Matter of
Price, supra. In its reconsidered decision, the Board said
"The
payments which she received after her actual work had ceased was manifestly
part of the original contract of employment for services actually performed in
connection with the filming and recording of the radio and television
commercials, and was in addition to the regular fees originally received for
such work."
and
"She
received a sum of money in payment for a pre-existing contractual obligation
assumed by the employer based upon its adherence to the 1953 – Producer –
Screen Actors Guild Contract for Film Commercials."
In affirming the decision
of the Board, the Court, in its opinion stated,
"These
fees were in reality earned when the commercial was made, and their amount
depended only on the use of the commercials thereafter, and no on any work or
service to be performed by the claimant."
On the basis of the
construction placed by the Division of Employment on the decision of the Board,
and the affirmance thereof by the Court, it was the practice and prescribed
procedure of the Division to accept from employers, contributions based on
re-use fees paid by them to the various artists, and to credit the artists with
the re-use fees in determining the benefit rate of those persons who became
claimants for benefits, allocating such re-use fees to the day or days on which
the films were actually made. This practice continued, at least until the
decision of the Board in the Matter of Shopnick Appeal Board 115,424
filed in the Department of Labor, November 6, 1964. In that case, there was no
issue with respect to the benefit rate of a claimant for benefits, but the
issue related solely to the liability of an employer for contributions based on
re-use fees which it had paid to a radio artist for the replay of a record
theretofore made. Neither the contracts which constitute part of the record
herein, nor other evidence of the nature submitted herein, were before the
Board in the Shopnick case. No claimant, or any representative of the
unions which have collective bargaining agreements with the employers in this
industry were parties to the Shopnick case. In overruling the
determination of the Industrial Commissioner, assessing contributions based on
re-use fees paid by that employer, we held that the payments made for the
re-use did not constitute remuneration as defined by the Law.
The above decision of the
Board was not further appealed and it was construed by the Division of
Employment to apply without exception to all instances of re-use payments and
consequently, subsequent to the rendition of such decision, the Division policy
excluded re-use fees from the determination of remuneration to be used as a
basis for establishing a benefit rate.
In the proceeding now
before the Board, the unions representing the various claimants have argued at
length that the conclusion of the Board in the Shopnick case is
erroneous, and that in any event, it has no application to the facts in the
instant case wherein, it has been shown conclusively, that by agreement of the
parties, re-use fees were specifically characterized as compensation for the
services performed by the artists at the time when they appeared before camera.
The argument so advanced on
behalf of the claimants, has merit. The evidence presented to the referee and
to the Board in the instant case, conclusively establishes that the parties
contemplated that the compensation or remuneration to be received by the
artists consisted of two separate and distinct parts: namely, that portion
which related to the actual appearance before the camera and that portion which
stemmed from the employers’ re-use of the film made as a result of such
appearance. In view of that fact, it appears that the re-use fees fall squarely
within the definition of "remuneration" as set forth in Section 517
of the Law, and therefore, must be considered in computing claimants’
"average weekly wage" as prescribed by Sections 518 and 590.2 of the
Law.
We deem it significant that
re-use fees are taxable as compensation under the Federal Unemployment Tax Act,
and that the employers in any even, are liable for the payment of such tax,
even if we were to hold that such payments do not constitute remuneration under
the New York Unemployment Insurance Law. It is clear that the parties to the
employment contract contemplated that the re-use fees were to constitute
compensation for all purposes, and there appears to be no statutory prohibition
against giving effect to such intention of the parties. Accordingly, we conclude
that the re-use fees received by each of the claimants herein constituted
remuneration within the purview of the provisions of the Law, and that each of
the claimants is entitled to be credited with such re-use fees in determining
his average weekly wage, and in establishing his respective benefit rate.
To the extent that our
decision herein is in conflict with the views expressed in the Matter of
Shopnick, Appeal Board 115,424, we abandon the principles therein
expressed.
The initial determinations
are modified to the extent that the benefit rate of each claimant shall be
increased by the inclusion in each of such claimant’s base period remuneration
of the re-use fees received and allocating such fees to the specific days upon
which the films which form the basis for such re-use fees were made, and as so
modified, each of the initial determinations is sustained. The decision of the
referee is modified accordingly. (June 17, 1966)
COMMENTS
This decision does not
change the fact that, following the week of the actual filming, the week in
which a filmed television commercial is used or re-used, or the week in which
payment therefore is made, is not a "week of employment." (See
Release A-750-1474). However, as herein stated such re-use fees are considered
"remuneration."
The "note"
appended to the rule at Index 930-35 (Release A-750-1474) stating that such
fees are not remuneration should be cancelled.
Index 1240.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
AUGUST 9, 1966
INTERPRETATION SERVICE - BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Working Conditions
Fringe Benefits
Appeal Board Decisions 123,666A and 131,684A
REFUSAL - LACK OF FRINGE BENEFITS
If under conditions
prevailing in a locality combinations of valuable fringe benefits, such as
hospital-medical insurance, retirement plan, and vacation-holiday pay, are
provided by employers for an occupation, refusal of employment in that
occupation is with good cause if such fringe benefits are not furnished in the
offered job, without their absence being compensated by higher wages, since
lack of such combination of fringe benefits renders the conditions offered to
the claimant substantially less favorable than those prevailing for similar
work in the locality.
Appeal Board decision 123,666A
The claimant applies,
pursuant to the provisions of Section 534 of the Law, to reopen and reconsider
the decision of the Board filed April 22, 1965 (Appeal Board, 121,973)
affirming the decision of the referee filed February 24, 1964, sustaining the
initial determination of the local office disqualifying claimant from receiving
benefits effective December 23, 1964, on the ground that without good cause she
refused employment for which she is reasonably fitted by training and
experience.
Findings of Fact: Claimant, who resides at
Binghamton, was employed for approximately seven years as a keypunch operator
until July 16, 1964, when she left her employment after obtaining a maternity
leave of absence. Her terminal wage rate was $101.20 a week. Additionally, the
employer provided substantial fringe benefits including, but not limited to,
hospital and medical insurance, retirement plan, paid vacation and holidays.
Her child was born on October 9, 1964. On December 9, 1964, claimant was
advised by her doctor that she was physically capable of resuming her
employment. However, during her leave of absence, her employer moved its entire
keypunch system out of the area with the result that claimant could not resume
her former employment.
Claimant filed for benefits
on December 9, 1964. On December 23, 1964, claimant was offered a temporary job
at $2.00 an hour from 8:00 a.m. to 5:00 p.m., five days a week. It was expected
that the job would last approximately six to eight weeks. Claimant refused the
offer stating that she desired permanent employment. The prospective employer
is in the business of providing its clients with office personnel and if
claimant had accepted the offer, she would have been assigned to perform
services in the establishment of one or more clients of the employer.
Evidence received at the
Board hearing established that under the conditions which prevail in the
Binghamton area for the employment of keypunch operators, employers provide the
employees in that occupation with fringe benefits similar to those provided by
claimant's last employer. However, no fringe benefits of such nature would have
been provided by the employer involved in the offer of December 23.
The prevailing wage for
keypunch operators in the area is $2.00 per hour but the value of the fringe
benefits, which are usually provided, is substantial.
Appeal Board Opinion and
Decision: The facts
in this case require us to decide whether the lack of fringe benefits resulted
in an offer of a job under conditions which were substantially less favorable
to claimant than those which prevail for similar work in the locality.
Section 593.2(d) of the Law
provides that
No
refusal to accept employment shall be deemed without good cause nor shall it
disqualify any claimant otherwise eligible to receive benefits if
(d) the wages or compensation or hours or conditions offered are substantially
less favorable to the claimant than those prevailing for similar work in the
locality, or are such as tend to depress wages or working conditions.
The language of the
foregoing statute signifies recognition of the fact that the cash wages alone
are not determinative of the adequacy of the terms of offered employment. The
words "or compensation or hours or conditions offered" must be
given effect and consequently all of the attributes of the offered job must be
considered and compared with similar employment in the locality to determine
whether the differences, if any, result in conditions which are substantially
less favorable to claimant than those prevailing for similar work in the
locality.
The proof here adduced has
established that the prospective employer involved in the job offer at issue
would not have provided claimant with any of the usual fringe benefits provided
by employers for similar work in the locality. Thus, claimant would not have
received, as a condition of the employment, premium free (to her) hospital and
medical insurance, the right to participate in a retirement plan, the right to
receive wage payments for legal holidays or the right to accrue vacation
credit. Since these various benefits are provided generally by employers in the
locality and employees therefore have acquired the right to expect such
benefits as an incident to their employment, it can hardly be said that such
benefits are merely a gratuity tendered by some employers. Rather, such
benefits have become vital and substantial conditions of employment and the
lack thereof constitutes a variance from the conditions of employment prevailing
for similar work in the locality. Therefore, we must evaluate those benefits to
determine whether the variance is substantial to the claimant. In the light of
the fact that the cash wage offered was no greater than the case wage which
prevails for similar work in the locality, we conclude that the deprivation of
the various fringe benefits results in a substantially less favorable condition
of employment. Obviously, if claimant were not paid for legal holidays and if
she were required to finance the cost of hospital and medical insurance and of
a retirement plan, she would be incurring substantial expense not required of
persons similarly employed who enjoy such protection and benefits. Accordingly,
we conclude that the conditions offered to claimant were substantially less
favorable to claimant than those prevailing for similar work in the locality
(see Appeal Board, 122,753).
We do not subscribe to the
view that because the offer was for temporary rather than permanent work, the
statutory standards herein above discussed have no application. The Law does
not authorize any such distinction. (See Matter of Lehrman, 281
App. Div. 936, affirming Appeal Board, 30, 832)). There is no proof which would
establish that the conditions of employment prevailing in the locality for
temporary jobs are different from those prevailing for permanent work.
We therefore conclude that
claimant did not, without good cause, refuse an offer of employment.
Claimant's application to
reopen and reconsider the decision of the Board filed April 22, 1965 (Appeal
Board, 121,973), is granted and the said decision is hereby rescinded. The
initial determination of the local office is overruled. The decision of the
referee is reversed. (September 16, 1965)
Note: The Industrial Commissioner's
application to reopen the above decision was granted by the Board. The decision
was adhered to as supplemented by the following additional facts:
"The
prevailing wage pay for keypunch operators in the locality involved was the
same for both permanent and temporary operators. The basic hourly rate for such
operators, excluding the worth of fringe benefits, was $2.06 rather than the
$2.00 previously indicated in said decision." (A.B. 127,136A)
Appeal Board Decision 131,684A
The Industrial Commissioner
having made further application to the Board to reopen and reconsider the
decision of the Board fled respectively on September 16, 1965 (Appeal Board
123,666A) and January 28, 1966 (Appeal Board 127,136A), and
The Board having considered
the written statements submitted on behalf of the Industrial Commissioner and
on behalf of the claimant in connection with such application and having
reviewed the entire record herein and; it appearing that the cash wages offered
to the claimant compare favorably with the wages prevailing for similar work in
the locality but that fringe benefits of a substantial nature are provided to
persons employed in similar occupations in the locality for a period of three
months or more and that no fringe benefits would have been provided in view of
the fact that such employment was for a temporary period only, so that claimant
would not have had the opportunity to continue in the employment for a period
of time equal to that when other workers similarly employed commence to receive
fringe benefits, and a decision having been rendered by the Appellate Division
of the Supreme Court, 3rd Department, on May 3, 1966, in Matter
of Bertram Asserson, wherein the Court reversed the decision of the Board
(Appeal Board 111,278A) and held that the lack of fringe benefits in instances
where such benefits prevailed for similar work provides a claimant with good
case to refuse an offer or employment; and,
It appearing to the Board
that on the basis of the principle enunciated in Matter of Asserson,
supra, the lack of fringe benefits in the job offered to claimant provided her
with good cause to refuse the offer of employment here at issue, it is,
therefore,
ORDERED that the
application of the Industrial Commissioner to reopen and reconsider the
decision of the Board filed on September 16, 1965 (Appeal Board 123,666A) and
on January 28, 1966 (Appeal Board 127,136) is granted, but said decisions are
hereby adhered to. (June 15, 1966)
COMMENTS
Recognition of fringe
benefits, so that their lack may constitute good cause for a job refusal, is a
novel principle. Decisions in the past were to the opposite effect. The
here-reported decision is, therefore, an important new precedent.
However, the application of
this principle will be limited because fringe benefits will fall within
generally prevailing conditions for the majority of job offers.
When the issue presents
itself it must be resolved in a manner similar to that which applies to
prevailing wages. The types of generally provided--"prevailing"--fringe
benefits which are afforded to employees in claimant's occupation must be
evaluated and it must then be determined whether their absence in the offered
employment makes its condition substantially less favorable.
Whether such substantiality
exists is a matter of judgment. No positive and all-inclusive standards can be
furnished. However, the following may afford some assistance.
Index No. 1275A-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August 10, 1966
INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Experience and Training Qualifications
Referee Case Number 544-590-66
REFUSAL: OFFERED EMPLOYMENT NOT
COMMENSURATE WITH NEWLY ACQUIRED TRAINING
Refusal by a claimant of
employment in his former occupation because of his desire to utilize skills
newly acquired in a training program under the Manpower Development and
Training Act is with good cause when the claimant was not afforded a reasonable
length of time to secure the work for which so trained.
Referee’s Findings of
Fact: A hearing was
held at which claimant appeared and testified. A statement was submitted on
behalf of the Industrial Commissioner in lieu of an appearance.
Claimant, classified as a
sewing-machine operator and entry stenographer, by initial determinations, was
disqualified effective April 13, 1966, because of refusal of employment without
good cause and was ruled ineligible effective April 19 to 24 because of failure
to comply with reporting requirements.
Claimant was employed from
1956 until November 1964, as a sewing-machine operator on jackets. She was paid
on a piecework basis. She then enrolled in a training course under the Manpower
Development and Training Act of 1962. She studied to be a secretary. After an
interruption because of family sickness, claimant re-entered and completed it
in November 1965. She was then promptly employed as a secretary from about
Thanksgiving 1965 until April 6, 1966, at $350 a month. She was released
following management changes. She filed an additional claim for benefits. On
April 12, when claimant reported to the insurance office, she was referred to
the former employer for whom she had worked as a sewing-machine operator, to
report on April 13. Claimant declined to report to that employer because she
feared that she would lose her new secretarial skills, and because she had
enrolled in the training course for the purpose of improving her occupational
sills and obtaining more steady employment. During the entire statutory week
ending April 24, claimant sought work diligently and had a number of personal
interviews with employers. She did not report to the insurance office on
Tuesday, April 19 because she had been told she would be disqualified for
failing to report to her former employer and believed that it would be best for
her to continue to seek employment, rather than to visit the insurance office
to report. On April 22 the employment service referred claimant to a job with
an insurance company. She was hired and has been at work since April 26 earning
$370 a month as a stenographer. She did not certify by mail to the statutory
week ending April 24.
Referee’s Opinion and
Decision: It is
ordinarily true that a claimant for unemployment insurance benefits may not
insist upon a job which would make use of her best skills, or upon one which
she prefers, rather than another job for which she is reasonably fitted by
training and experience. Nevertheless, claimant’s contention is that to require
her promptly to return to work as a sewing-machine operator after the loss of
her employment as a secretary would be a waste of public funds. That contention
has substantial merit. The Federal Government provides substantial and
intensive training under the Manpower Development Training Act to improve the skills
of those enrolled in training courses. The provision for disqualification from
benefits for refusal of employment under Section 593, subdivision 2, of the
Unemployment Insurance Law, cannot be regarded in isolation. The Manpower
Development and Training Act and the New York Unemployment Insurance Law must
be regarded in a single context, as if they were an entity. It may very well be
that if claimant were unable to obtain work as a secretary after an extended
period of unemployment, she could reasonably be required to accept work in her
former occupation. In this instance, however, where she had been unemployed
only a few days, to disqualify her for refusing work as a sewing-machine
operator would, in effect, frustrate the entire purpose and intent of the
Manpower Development and Training Act. It is highly significant that claimant
promptly obtained another job as a stenographer as a consequence of action by
the employment office.
Accordingly, it is held
that her refusal in this instance was with good cause. Additionally, claimant
was entitled to a reasonable period of time to attempt to locate a job
comparable to her last job.
Claimant was obligated to
comply with reporting requirement, notwithstanding her obviously sincere job
search. The mere fact that she was seeking work was not a valid excuse for
failing to report to the insurance office.
The initial determination
of refusal of employment without good cause is overruled. The initial
determination of failure to comply with reporting requirements is sustained.
(June 13, 1966)
COMMENTS
This decision reflects an
exception to the general rule under which a refusal of employment because of a
desire for different employment is without good cause if the offered job is in
claimant’s usual occupation or is one for which he is fitted by training and
experience. (See Matter of Delgado; A-750-1015) It stands for the new
principle that special consideration should be given to skills acquired in a
government sponsored vocational training course, which is financed from public
funds. The reasons are well stated in the decision, and similar considerations
will apply to other training courses under governmental auspices, comparable to
MDTA training. Training under the new New York State Manpower Training Act
would be an illustration. Although in the instant case the claimant had
actually secured a previous job, and had already acquired same work experience,
in the new occupation, the same result should obtain if that had not been the
case.
Index No. 1460A-9
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
August 12, 1966
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Vacation Pay
Appeal Board Case Number 132,006
DESIGNATED VACATION PERIOD, QUESTION
OF
A statement (in the
Employer’s Manual) informing the workers that, in the event of separation from
employment, "you are paid any unused earned vacation credit" is not
the designation of a vacation period as required by Section 591.3 of the U.I.
Law.
Appeal Board Decision
The Industrial Commissioner
appeals from the decision of the referee filed April 29, 1966, insofar as it
modifies the initial determination of the local office holding claimant
eligible to receive benefits effective February 7, 1966 without disqualifying
conditions to be effective March 7, 1966 on the ground that claimant was
ineligible to receive benefits during the period February 6 through March 6,
1966 in that such period was a paid vacation period for which no benefits are
to be paid.
Findings of Fact: Claimant, a production development
engineer, worked for the employer, an automobile manufacturer, between
September 19, 1955 and January 31, 1966 at $234.31 for a 40-hour, five day week.
He was compulsorily retired on January 31, 1966 and received $997.15 as accrued
vacation pay for the period in issue.
In the summer of 1965, the
employer issued an Employer’s Manual where it set out its policy concerning
vacation periods and vacation allowances to persons regularly employed and upon
termination or retirement. The manual, insofar as pertinent, contained the
following provisions:
"Your
Accrued Vacation credit is based on your length of service and number of months
you work during the current calendar year. Vacation credit is accrued in
accordance with the following schedule. It becomes earned vacation credit on
December 31 of the year in which the vacation credit was accrued.
*****
"6.
If you are permanently laid off, retire, or take a military leave, you are paid
any unused earned vacation credit accrued in the current calendar year."
The Employer’s Manual does
not designate any period of time for accrued vacation paid to retirees.
Claimant had accrued
vacation credit of 17½ days for the calendar year of 1965 plus 1¾ days for the
month of January 1966, a total of 19¼ days.
Opinion: Section 591.3 of the Unemployment
Insurance Law provides:
"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 collective bargaining
agreement or the employment contract or by the employer and the claimant, his
union or his representative. If either the collective bargaining agreement or
the employment contract is silent as to such time, or if there be no collective
bargaining agreement or employment contract, then the time so designated in
writing and announced to the employees in advance by the employer is to be
considered such vacation period."
The statutory tests require
that a designation of a specific vacation period must be made prior to the
vacation period. In this case there was no such designation of a vacation
period. Therefore, the period involved therein was not a vacation period within
the meaning of the Law, which would preclude claimant from receiving benefits,
which he was otherwise entitled to receive.
Decision: The initial determination of the
local office is sustained. The decision of the referee, insofar as appealed
from is reversed. (August 1, 1966)
Index No. 785.1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
December 21, 1966
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Transportation Facilities
Appeal Board Case Number 134,758
AVAILABILITY; LACK OF TRANSPORTATION
FACILITIES
A claimant who has lost
transportation facilities to his former place of work is not available for
employment when he has no means of commuting to areas where employment
opportunities exist.
Referee’s Decision: The initial determination of the
local office holding claimant eligible to receive benefits effective May 16,
1966, without disqualifying conditions is overruled. The employer’s objections
to the payment of benefits to claimant, on the ground that she is disqualified
from receiving benefits effective May 14, 1966, because she voluntarily left
her employment without good cause is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, a bookkeeper, worked for
her last employer for about seven months until May 13, at a weekly wage of $110
per week. She resides in West Seneca and worked in Hamburg. When claimant was
hired, no question arose with respect to her transportation to and from her
place of work. Until about January, claimant drove the family automobile.
However, in about early January, the use of the family automobile was no longer
available to her because her husband’s place of employment was transferred and
it was necessary for him to use the automobile. There are no public
transportation facilities between claimant’s home and her place of employment
with the result that when she advised the employer of her inability to travel
in the family car, the employer agreed to permit claimant to use a company car
temporarily until she could arrange for private transportation. Claimant had
made no arrangements for other transportation and after the claimant had used
the company vehicle for approximately three or four months, the employer
advised claimant in May that the use of that car would be withdrawn from
claimant and that it would be necessary for her to arrange for her own means of
transportation. Claimant had decided that she would not purchase another motor
vehicle and since without it there were no means of transportation available to
her, she resigned effective May 13, 1966.
There are no public
transportation facilities from claimant’s home which would enable her to
commute to any area offering reasonable opportunities for employment. Following
the termination of her employment and at least up to August 23, 1966, the date
of the referee’s hearing, claimant could not accept employment unless the
employer would provide her with a company vehicle to enable her to commute
between her home and such place of employment. Because of her transportation
difficulties, claimant made limited efforts to obtain employment applying at
only a few establishments where she indicated to them that she could accept
employment only if the prospective employer were to provide her with a means of
private transportation.
Upon the filing of her
claim for benefits effective May 16, 1966, the local office ruled that claimant
was eligible for benefits without disqualifying conditions. The employer
protested the payment of benefits to claimant and the referee overruled the
local office initial determination and held, in effect, that claimant
voluntarily left her employment without good cause.
Appeal Board Opinion and
Decision: While we
find that there is merit to the objections of the employer to the payment of
benefits to claimant, we are not in accord with the referee that claimant’s
ineligibility stems from a voluntary leaving of employment without good cause.
Rather we conclude that although claimant left her employment with good cause,
she nevertheless has been unavailable for employment throughout the period at
issue because her lack of transportation facilities forecloses her from all
reasonable opportunity of obtaining employment.
Claimant was provided with
good cause to leave her employment since it is undisputed that when the
employer withdrew the automobile which had been loaned to her, she was unable
to commute between her home and place of employment and had no alternative
under those circumstances, but to leave her job. In a similar case (Matter
of Posselt, 3 A.D. 2d 881, affirming Appeal Board, 56,265) the Court
stated:
Appellant rightfully
contends that this was not a voluntary quit in the narrow sense that there was
no reason at all for her unemployment.
Nevertheless, since the
termination of claimant’s employment was necessitated by the lack of
transportation facilities, she must establish her ability to commute between
her home and areas where employment opportunities exist in order to establish
her availability for employment, a condition precedent to establish eligibility
for benefits under the Law. As the Court pointed out in the Posselt Case,
supra,:
The lack of transportation
to enable claimant to report for work which was available, was due to her own
personal circumstances, her lack of employment was not due to economic
circumstances or the inability of employers to provide work, as contemplated by
the spirit and purpose of the Unemployment Insurance Law. * * * There must not
only be a willingness, but the willingness and ability to present oneself at
the place of work and actually doing so.
In the instant case, the
record clearly establishes that claimant’s lack of transportation precluded her
from procuring work since she lacked the means of commuting between her home
and the places where such work opportunities are available. Accordingly, we
conclude that although claimant voluntarily left her employment with good
cause, nevertheless she is ineligible for benefits from the date of the filing
of her clam through at least August 23, 1966, the date of the referee’s hearing
on the ground that she was not available for employment. [Also see Matter of
Leon, (25 A.D. 2d 925) reversing Appeal Board, 125, 842].
The objections of the
employer are sustained to the extent that it is held that claimant was
ineligible because of unavailability effective May 16 through August 23, 1966.
The initial determination
of the local office holding that claimant was eligible for benefits without
disqualifying conditions, is overruled. The decision of the referee is modified
accordingly, and as so modified, is affirmed. (December 9, 1966)
COMMENTS
This case reflects a new
principle which is not fully in accord with interpretations heretofore applied.
It means, generally, that a
claimant in order to be held available for employment must be able to commute
between his place of residence and locations within his labor market area where
employment opportunities exist, even though no recent removal to that place of
residence is involved and even though the claimant did commute to a job in the
area until he lost his transportation facilities.
Index No. 905-4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 4, 1967
INTERPRETATION SERVICE – BENEFIT CLAIMS
DETERMINATION OF BENEFITS
Eligibility, Question of
MATTER OF WILLIAM STEINBERG
Appeal Board No. 116,197
ELIGIBILITY OF CORPORATE OFFICER –
CONTRIBUTION DELINQUENCIES
Benefits due to a claimant
who was an officer of a corporation may NOT be held in abeyance because the
corporation is delinquent in the payment of contributions.
APPELLATE DIVISION DECISION
Appeal from a decision of
the Unemployment Insurance Appeal Board which sustained the determination of
the Industrial Commissioner that claimant’s benefits be held in abeyance
because the corporate employer of which claimant was president is delinquent in
the payment of unemployment insurance contributions.
The claimant was the
president and a 25% stockholder of the employer, Rambler Rose Corporation, and
had been so employed for approximately 44 years when the corporation made an
assignment for benefit of creditors on May 25, 1964. The corporation was
delinquent in the payment of unemployment insurance contributions for the third
and fourth quarters of 1963 in the amount of $761.56. Pursuant to a deferred
payment agreement, this delinquency was reduced to $526.45 plus a $10 penalty,
at the time of the assignment for benefit of creditors and resulting
termination of claimant’s employment.
The determination to hold
the claimant’s benefits in abeyance, pending payment of the delinquent
contributions, was based upon the equitable theory "that claimants who
were in control of a corporation should not be permitted to profit by their
failure to comply with the law which requires the payment of contributions on
remuneration paid to employees."
The respondent does not
claim that the claimant is disqualified for benefits, or is it claimed that he
is not a covered employee. The respondent supports its decision on the basis
that a corporation can only act through its directors and officers and that the
criminal sanctions of section 631 of the Labor Law imposes a personal duty to
make certain that unemployment insurance contributions are paid. Section 631
which provides that the officers of a corporation are guilty of a misdemeanor,
if the corporation is convicted of a violation under Title 2 of the Labor Law,
must be read in conjunction with section 633, which provides that "any
person who wilfully refuses or fails to pay a contribution to the fund, shall
be guilty of a misdemeanor." The respondent, however, does not assert that
there exists a wilful failure or refusal to pay contributions in this case, and
the record indicates that the failure to pay was not wilful. There is also no
provision in the Labor Law which imposes a personal liability upon the officers
of a corporation for the payment of contributions, unless it can be said that
such responsibility is imposed by implication by section 631 and 633 in the
event of a wilful refusal or failure to pay.
The determination of the
respondent must then rest upon his assertion that the claimant paid himself his
full salary of $150 per week up to the date of the assignment for benefit of
creditors, implying by his assertion, that the claimant should have deducted
from his salary the amount of the delinquent contributions. This position,
however, is untenable in the face of section 635, which makes it a misdemeanor for
an employer to make a deduction from the remuneration of any employee to pay a
portion of the contribution.
The respondent also argues
that the policy of the State requires the establishment of sufficient reserves
for the payment of benefits, and that the claimant should not be permitted to
shield himself behind his corporate title.
This argument is refuted by
section 635 and also by section 574, which provides for the priority of
contributions in the even of insolvency or bankruptcy.
The Legislature, in enacting
section 574, must be presumed to have had in mind situations exactly like
instant case, yet it failed to provide for personal responsibility of corporate
officers in the event that contributions were not collectible despite the
priority provisions of this section of the law.
Decision reversed, and
claim remitted for further proceedings consistent herewith, with costs to
claimant. (December 15, 1966)
Index No. 1240-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
March 28, 1967
INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Working Conditions
Fringe Benefits
Appeal Board Case Number 111,278A
REFUSAL OF EMPLOYMENT – LACK OF
FRINGE BENEFITS
If the content, that is,
the value of the fringe benefits of offered employment is markedly inferior to
that prevailing for similar work, good cause for refusal may exist, even if the
types of fringe benefits involved are identical.
Appeal Board Decision
The claimant herein having
appealed to the Appellate Division of the Supreme Court, Third Department, from
a decision of the Board filed in the Department of Labor on February 1, 1965,
reopening, reconsidering and rescinding the decision of the Board filed January
22, 1964 (Appeal Board, 109,069) affirming the decision of the referee filed
November 6, 1963, sustaining the initial determination of the local office
disqualifying claimant from receiving benefits, effective July 25, 1963 on the
ground that without good cause, he refused employment for which he was
reasonably fitted by training and experience and again affirming the decision
of the referee, and a decision having been rendered by the Appellate Division
of the Supreme Court, third Department, on May 3, 1966 (25 A.D. 2d 895) reversing
the aforesaid decision of the Appeal Board and remitting the matter to the
Board for further proceedings not inconsistent therewith, and on order to that
effect having been duly entered at a term of the Appellate Division of the
Supreme Court in and for the Third Judicial Department on May 6, 1966, and
A further hearing having
been before the Board in pursuance of such decision and order of the Appellate
Division of the Supreme Court, Third Department, upon due notice to all of the
parties and at which all parties were accorded a full opportunity to be heard
and at which representatives of an attorneys for claimant and for his union and
a representative of a witness for the Industrial Commissioner with respect to
the issues herein, now
Based on the record and
testimony in this case and on all of the proceedings heretofore and herein, the
Board makes the following
Findings of Fact: Claimant is a seaman who holds the
rating of Third Assistant Marine Engineer in the merchant service. He has been
a members of the Marine Engineers Beneficial Association for more than 15
years. On July 25, 1963, while unemployed and an applicant for unemployment
insurance benefits, he was offered employment in his rating aboard a vessel of
the Military Sea Transport Service, a branch of the United States Navy. The
wage offered for such employment was $600 per month, which is the basic
monetary payment for claimant’s rating that is paid by all employers of such
marine personnel. Claimant refused the offer of employment aboard the government
ship because of the variances, which exist in other aspects between government
employment and private employment.
Other than basic wages paid
and the fact that claimant’s duties aboard ship would be the same, regardless
of who was the employer, there are many differences which exist in the
conditions under which marine personnel are employed, as between the Federal
Government as the employer and private ship owners and operators as the
employers: thus,
A – Pension – In
private employment, claimant could retire at any age provided he had 20 years
of service. He would not contribute anything to the cost of his pension, which
would amount to $300 per month. In addition, when he reached age 65, based on
such private employment, he could also receive Social Security benefits of
approximately $168 per month, thus making him the recipient of a retirement
income of approximately $468 per month, for which he would only have
contributed whatever was required by the Social Security Act for that portion
of such retirement income. In government employment, claimant could not retire
until he reached the age of 60 and he had to have at least 30 years of
government service. He would have to contribute at least 6½ percent of his pay
to assist in financing his government pension, which would amount to $342 per
month. He would be ineligible to receive Social Security benefits based on such
government employment. In order to receive Social Security, he would have to
have sufficient other private employment in order to qualify thereunder.
B – Welfare Plans –
In private employment, claimant would be covered by a Health, Accident and
Hospitalization policy, financed entirely by the employer and a $5000 Life
Insurance policy, also financed entirely the employer. In government
employment, for similar coverages, claimant would have to pay a premium of
approximately $22 per month for the Health, Accident and Hospitalization policy
and two-thirds of the premium of the Life Insurance policy.
C – Vacation – In
private employment, claimant would receive 60 days of paid vacation each year
and one day of "personal business leave" at the close of each voyage.
In government employment, he would receive from 13 to 26 days of paid vacation,
each year, depending on his length of service with the government. The
government has no provision for "personal business leave" at the
close of a voyage.
D – Other Significant
Differences
Opinion: In our prior decision, we
concerned ourselves primarily with the fact that the duties of claimant aboard
either a private ship or a government ship would be precisely the same and his
base pay for his services would also be the same. We did not consider that the
differences in the fringe benefits available in the two employments were
significantly different so as to make government employment less favorable to
claimant than private employment. On the basis of the evidence now before the
Board, we conclude that such differences do exist between the two employments
as to make the government employment substantially less favorable to claimant
than would be private employment.
The industrial Commissioner
urges that the instant case is governed by the principles expressed in Matter
of Matyevich, 15 A.D. 2d 387, affirming Appeal Board, UCFE-284 and Matter
of Shotkin, 10 A.D. 2d 738, reversing Appeal Board, 63,045. We do not find
that these cases are in point. They were both concerned with the question of
what is the prevailing wage and did not consider the other conditions of the
employment which section 593.2(d) of the Law, require to be considered as
factors in the question of whether a refusal of employment shall be deemed to
be with good cause or not. In the instant case, the evidence establishes that
there are such substantial differences present in these other factors of the
two employments as to have given claimant good cause to refuse the offer of
employment aboard the government ship, regardless of the fact that basically
the duties and base pay were the same.
Decision: The initial determination of the
local office is overruled. The decision of the referee is reversed. (January 3,
1967)
COMMENTS
When
the issue presents itself it must be resolved in a manner similar to that which
applies to prevailing wages. The types of fringe benefits generally afforded in
claimant’s occupation, and their specific characteristics, must be evaluated,
and it must then be determined whether their absence or their differences make
the condition in the offered employment substantially less favorable.
Index No. 855-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
April 3, 1967
INTERPRETATION SERVICE – BENEFIT CLAIMS
CLAIMS & REPORTING
Predating
Appeal Board Case Number 136,139
FAILURE TO FILE; BELIEF OF
INELIGIBILITY – STRIKE
Failure to file a claim is
not excused where claimant failed to do so since he believed that he was not
eligible because of loss of employment due to strike, even though that belief
was based on determinations originally made in the cases of other claimants who
did file claims and who were ultimately allowed benefits upon a revision of the
original determinations.
Referee’s Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective April 25
through June 5, 1966, on the ground that he failed to comply with registration
requirements is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a printer, was employed
for about 17 years by a publisher of a New York City newspaper. He is a member
of a typographical union. The publisher, by which claimant was employed, ceased
publication, intending to merge soon thereafter with other metropolitan
newspapers. Claimant became unemployed concurrently with the cessation of
operations by his employer on or about April 24, 1966. He was never recalled to
work thereafter and consequently he has not been rehired by his former employer
or its successor. It was determined initially by the local offices involved
that there was a loss of employment due to an industrial controversy by the
employees of the papers intended to be merged.
Claimant made no claim for
benefits until June 8, 1966. His claim was accepted effective on the day of
filing and thereafter claimant received twelve benefit checks through the
period ending September 11, 1966. Claimant, however, requested that his claim
be pre-dated to April 25, 1966 and that he be allowed benefits from April 25
through June 5. His request was denied and he was ruled ineligible for benefits
for the period from April 25 through June 5, 1966, on the ground that he had
failed to comply with registration requirements.
Other persons employed by
the newspaper publishers which had ceased operations pending the commencement
of operations by the proposed merged employer, filed for benefits soon after
their employment was terminated and the local offices where such claims had
been filed issued initial determinations suspending the benefit rights for a
period of seven weeks of all of those claimants, who, it had concluded, had
lost their employment as a result of the existence of an industrial controversy
in the establishment in which they were employed. In those instances in which
such initial determinations were issued and the affected claimants made no
protest to the initial determinations, they were instructed, in accordance with
the procedure applicable in such instances, to refrain from again reporting to
the respective local offices until the expiration of the suspension period.
Several months later, the representatives of the Industrial Commissioner
reviewed the circumstances under which those claimants who had filed for
benefits had lost their employment and on the basis of such review, it was
concluded that all of those persons who were not rehired by the merged firm
after the differences between management and labor were resolved, had not
initially lost their employment due to the existence of an industrial
controversy in the establishment in which they were employed, but rather that
they had lost their employment because, as a result of the merger, their jobs
had been abolished. Accordingly, the Commissioner's representatives revised the
initial determinations suspending the benefit rights of such claimants who were
then found to have lost their employment under non-disqualifying conditions and
held that the benefit rights of such claimants were not subject to suspension
and they were eligible for benefits from the date of their respective filings,
provided they met all of the other qualifying conditions of the Law. In those
instances, where claimants had filed for benefits during the period originally
designated as a suspension period and had not reported thereafter until the
conclusion of the suspension period, the Commissioner’s representatives excused
their failure to comply with reporting requirements. However, in those instances
where a former employee of the involved newspaper publishers failed to file any
claim for benefits within the period designated as the suspension period, his
failure to file was, in the absence of good cause for the omission, not
excused.
Claimant explained his
failure to file for benefits prior to June 6, 1966 by alleging that shortly
after he became unemployed, he telephoned to the local office to inquire
whether persons who are unemployed because of a strike were entitled to
benefits for seven weeks thereafter and he allegedly was informed that they
were not. He also knew from a previous filing in 1964, when he had lost his
employment because of a strike in the establishment in which he was then
employed, that his benefit rights would be suspended for seven weeks. Moreover,
he received confirmation of the fact that one who loses his employment due to
an industrial controversy in the establishment in which he is employed is
suspended from receiving benefits for seven weeks thereafter because he had been
informed by several of his co-workers that their benefit rights had been
suspended in April 1966. Accordingly, he concluded that it was useless for him
to file for benefits.
Appeal Board Opinion and
Decision: The
referee concluded that claimant had shown good cause for his failure to file
for benefits prior to June 6 in that it was reasonable for him to rely upon the
nature of the initial determinations issued to some of his co-workers. He
further concluded that the Industrial Commissioner’s denial of claimant’s
application for pre-dating was arbitrary and without a sufficient basis in law
or fact because, in his view, there was no distinction between those who had
filed for benefits but had no reported during the suspension period and the
claimant who had not filed for benefits. We are not in accord with the
conclusions of the referee or the basis thereof.
The requirement for filing
a claim for benefits in order to initiate a claim is mandated by Section 590.1
of the Law which provides that a claimant is entitled to benefits only
if he has complied with the provisions of the Law regarding the filing of his
claim and his reporting for work or has otherwise given notice of the
continuance of his unemployment. Section 596 of the Law requires that a
claimant shall file a claim for benefits at the local office within such time
and in such manner as the Commissioner shall prescribe.
In Regulation 40(a) the
Industrial Commissioner has set forth the requirements for filing an original
claim and in Regulation 41 the Industrial Commissioner has prescribed the
requirements for reporting by claimants who have initiated a claim by a filing.
In other subdivisions of both of the aforesaid regulations, a provision is made
for excusing the failure to comply with the above regulations "***by the
Commissioner, upon proper presentation by the claimant of the fact and
circumstances, if it is shown to the Commissioner’s satisfaction that they
constitute good cause."
It is thus apparent that
the referee erred when he concluded that the Commissioner’s actions were
without a sufficient basis in law or fact. From the foregoing, it is obvious
that the filing of a claim for benefits is a condition precedent to the
establishment of a claim for benefits and that no claimant is entitled to benefits
unless the Commissioner is satisfied that the omission was due to "good
cause." Similarly, it is obvious that the commissioner has the legal
authority to excuse or refuse to excuse a failure to file or a failure to
report depending upon the particular facts and circumstances causing the
omission.
Similarly, there is no
basis to support the referee’s conclusion that the Commissioner’s actions were
arbitrary because of the alleged similarity in the circumstances of those who
had not reported during the suspension period after having filed for benefits
and claimant who had neither filed nor reported. There is no similarity in the
two situations. Those claimants who had filed but failed to report during the
suspension period were acting in accordance with specific instructions from the
Commissioner’s representatives that it was unnecessary for time to report
during the suspension period so long as they did not protest the initial
determination and thereby, in effect, agreed that they could accumulate no credit
for benefits during such suspension period. In the instance of the claimant,
however, he had received no such instructions. He acted on his own initiative
and in accordance with his own judgment as to the necessity for complying with
the legal requirement for filing for benefits. His failure to file a claim
deprived the Commissioner’s representatives of an opportunity of initially
evaluating the facts and circumstances which had caused the termination of his
employment to permit a conclusion as to whether he was one who had lost his
employment because of the existence of an industrial controversy in the
establishment in which he was employed. There is thus a clear difference in
both situations and consequently, there was a real basis for the denial by the
Industrial Commissioner of claimant’s request for pre-dating his claim and yet
excusing the failure to report of those who had filed. Such actions by the
Commissioner are neither arbitrary nor capricious.
It is not for a claimant to
determine for himself that it would be futile to file for benefits nor to rely
upon that which he learned from co-workers. Moreover, even if we were to accept
as credible, claimant’s contention that he telephoned to the local office to
seek information with respect to the eligibility of a claimant who loses
employment because of a strike, our conclusion would not be altered. He neither
sought nor received any information with respect to the need for filing his
claim and consequently his failure to file is not attributable to any
misinformation conveyed to him by an accredited representative of the
Industrial Commissioner.
In a similar case (Appeal
Board 715), we said:
"Because
of the widespread publicity which has been given throughout the State to one of
the most important regulations under the Unemployment Insurance Law that an
applicant cannot become eligible for benefits until he had filed an application
in the local office, it requires strong evidence to warrant a finding that an
application should be pre-dated six weeks because of a misunderstanding in
regard to this regulation. It appears that claimant herein should have at least
gone to the local office shortly after the date of the commencement of the
strike and satisfied any doubt in his mind as to the time he should file an
application for benefits. The strike started on September 27 and it was not
until November 17 that claimant first appeared at the local office. Under these
circumstances the application for benefits should not be pre-dated."
Similarly, we have
repeatedly held that a claimant who actually relies upon sources outside the
Division of Employment in failing to file a claim for benefits, does so at his
own risk (See Appeal Board 1,102; 9,440; 9,703; 10,1005; 86,171; 88,142; 88,145
and 131,302).
In view of the foregoing,
it is unnecessary to decide whether, in fact, the facts and circumstances
surrounding the termination of claimant’s employment were identical with those
surrounding the termination of employment of those claimants in whose cases the
Commissioner had issued the revised initial determinations of eligibility for
benefits. Inasmuch as we have concluded that the denial of claimant’s request
for the pre-dating of his claim was a reasonable exercise of the Commissioner’s
discretion, it follows that claimant’s failure to file for benefits within the
period now claimed by him, renders him ineligible for benefits for the period
April 25, 1966 through June 6, 1966.
The initial determination
of the local office holding claimant in ineligible to receive benefits
effective April 25 through June 5, 1966, on the ground that he failed to comply
with registration requirements is sustained. The decision of the referee is
reversed. (March 17, 1967)
Index No. 1620-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 1, 1967
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Personal reasons
Matter of Moran, 34 AD 2nd 694
Appeal Board Case Number 137,451
VOLUNTARY LEAVING BY EDITORIAL
WRITER – CONFLICT OF POLICY
Voluntarily leaving
employment by the editor of a newspaper because he could not in good conscience
agree with employer’s policy regarding the endorsement of political candidates
is without good cause since (1) claimant refused to meet a condition of
employment as it was the employer’s prerogative to determine editorial policy
and (2) as editorials were unsigned, claimant’s compliance would not impinge
upon his freedom of personal political choice or action.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective November
4, 1966, on the ground that he voluntarily left his employment without good
cause is overruled.
Appealed By: Employer
Findings of Fact: Claimant was employed by the
publisher of a chain of newspapers for eight years. He was editor of one of the
employer’s newspapers for the last three years ending November 3, 1966, when he
resigned.
The general manager of the
newspaper was claimant’s immediate supervisor. The employer’s vice-president
was the editorial director of the newspaper chain. No one person controlled the
newspaper chain. No one person controlled the newspaper’s editorial policy,
which was determined by the executives of the newspaper chain. The employer’s
main office each day submitted three editorials of general interest to
claimant’s newspaper for publication. Claimant as editor of the paper wrote
between ten and twenty unsigned editorials a year on subjects confined to
matters of local interest in the community, which the newspaper served.
Claimant knew that he did
not have complete authority to write whatever he chose in the editorial columns
of the paper. When claimant became the editor he was instructed that the
paper’s policy on community issues was to be discussed with the editorial
director. Editorials that involved a statement of basic or political policy
were required to be discussed among the publisher’s executives with due consideration
given to the views of the editor. The employer required that claimant’s
published statements be in agreement with the basic policy of the paper on
community questions as determined by its executive officers. During the period
that claimant served as editor of the paper, he submitted the editorials he
wrote on local issues to the editorial director of the publisher before they
appeared in the newspaper.
Prior to the election in
November 1966, claimant wrote an editorial in support of the incumbent mayor of
the community who was a candidate for re-election. Claimant duly submitted his
proposed editorial to his supervisor and the editorial director. Claimant and
the officers of the publisher discussed claimant’s proposed editorial at length
but claimant, despite his insistence, was unable to persuade the executives or
to obtain their approval for publication of his editorial. Approval was denied
because the editorial director and the publisher’s president, who was a long
time resident of the community, chose to endorse the slate of candidates
opposed to those preferred by claimant. Claimant took the position that since
his employer insisted on endorsing the candidates whom he personally opposed
and whom he believed to be less desirable for the benefit of the community, he
could no longer remain as editor of the newspaper in that community.
The employer was satisfied
with claimant’s work performance and expressed the desire to keep him in its
employ by offering to transfer claimant to another community to work as copy
editor at the city desk of another newspaper in the employer’s chain. Such
employment would be at the same salary as claimant was receiving as editor.
Claimant rejected the employer’s offer of a transfer. He left his employment
because he believed that he could not in good conscience continue to act as the
publisher’s chief spokesman in the community, since he was sharply opposed to
the publisher’s choice of political candidates to be endorsed.
Appeal Board Opinion and
Decision: The sole
question in this case is whether claimant’s voluntary leaving of his employment
was with good cause. Claimant does not dispute his employer’s prerogative to
determine the newspaper’s editorial content. He seeks to justify his leaving on
the ground that a conflict of policy had developed between him and his employer
and as a result thereof he felt that he could no longer, in good conscience,
continue to work for the employer.
Claimant’s compliance with
the employer’s instructions to publish an editorial, the contents of which
claimant opposed would not stamp claimant’s act as a personal endorsement of
the employer’s policy, since all editorials were unsigned. The employer’s
request and views did not impinge upon claimant’s freedom of personal political
choice or action. Claimant’s personal disagreement with the employer’s policy
does not absolve him from compliance, because regardless of the merits of the
disagreement, the decision as to what editorial was to be published in the
employer’s newspaper was entirely the employer’s (Matter of Day, 26 A.D.
2d 851, aff’g. Appeal Board 129,242). Furthermore, claimant’s refusal to carry
out the employer’s direction would constitute an election by claimant not to
meet a condition of his employment (Matter of Karman, 2 A.D. 2d 626,
aff’g. Appeal Board 51,207; Matter of Malaspina, 309 N.Y. 413, aff’g.
285 App. Div. 564, rev’g Appeal Board 42,606).
Since claimant’s continued
employment with the employer would not have resulted in any diminution of his
salary, nor would it impose upon him any onerous tasks or result in any
impairment of his abilities or endanger his health, claimant cannot justify his
voluntary leaving of his employment for his personal reasons under the
Unemployment Insurance Law. Accordingly, we hold that the disqualification
provided for in Section 593.1 of the Law applies. The initial determination of
the local office is sustained. The decision of the referee is reversed. (May
24, 1967)
Index No. 1460B-2b
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 9, 1970
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Payments without work
Appeal Board Decisions 138,551 and 156,164
PAID HOLIDAY, ALLOCATION OF: GENERAL
CONSTRUCTION LAW
A.B. 138,551
Referee’s Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective January
2, 1967 only, on the ground that it was a paid holiday for which no benefits
are to be paid is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, a factory worker, has
worked for the employer herein for eleven years. On December 30, 1966, claimant
and a number of her co-workers were temporarily laid off because of lack of
work. Claimant was recalled to work on January 9, 1967.
The employer operates this
plant seven days a week and the plant was in operation on both Sunday, January
1, 1967, and on Monday, January 2, 1967. The collective bargaining agreement
between claimant’s union and the employer provided that the union employees
shall be paid for certain holidays, including New Years’ day. Pursuant thereto,
on January 5, 1967 the employer paid claimant for the holiday which had fallen
on Sunday, January 1, 1967.
Appeal Board Opinion and
Decision: The
initial determination herein is based upon the interpretation of the Industrial
Commissioner that since New Year’s day, January 1, 1967 fell on Sunday, it was
to be celebrated on Monday, January 2, for which day claimant is not to be paid
benefits because it was a paid holiday.
Section 24 of the General
Construction Law Provides:
"The
term public holiday includes the following days in each year: the first day of
January known as New Year’s day; …. And the twenty-fifth day of December known
as Christmas day, and if any such days is Sunday, the next day thereafter;
…"
Section 591.3(a) of the
Unemployed Insurance Law provides that no benefits shall be paid to a claimant
for any day during a paid vacation period or for a paid holiday. Section
591.3(c) of the Law provides:
"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…even if such payment or allowances be
deemed remuneration for prior services rendered as an accrued contractual
right, and irrespective whether the employment has or has not been
terminated."
Considering that the
collective bargaining agreement between the employer and claimant’s union
provided that New Year’s day, January 1, 1967, was a holiday for which claimant
and the other union employees were to be paid, and that the parties thereto
treated Sunday, January 1, 1967, as the holiday for which claimant was paid
within thirty days, we reject the contention of the Industrial Commissioner
that claimant is ineligible to receive benefits for Monday, January 2, 1967, on
the ground that it was the day on which the public holiday described in the
General Construction Law was observed and celebrated. The provisions of the
Unemployment Insurance Law refer to a "holiday," not to a
"public holiday." It is significant that the employer’s plant
operates on a seven-day basis and that it was in operation both on Sunday,
January 1, 1967, and on Monday, January 2, 1967, even though claimant and a
number of other employees were on temporary layoff at the time. We have
previously considered the issue raised herein (see Appeal Board 137,748). In
accordance therewith, we hold that claimant was not ineligible to receive
benefits effective January 2, 1967 on the ground that it was a paid holiday for
which benefits are not to be paid.
The initial determination
of the local office is overruled. The decision of the referee is reversed. (May
25, 1967).
A.B. 156,164
Referee’s Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective October
12, 1969, only, on the ground that it was a paid holiday for which no benefits
are to be paid, is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: The following findings of fact
made by the referee are amply supported by the evidence and are hereby adopted
as the findings of fact of the Board:
Claimant,
a sewing-machine operator, is employed in a dress factory. Her job is
unionized. The collective bargaining agreement between claimant’s union and the
employer provides that employees shall be paid for certain "legal
holidays" including Columbus Day. The contract further provides that all
such holidays shall be observed. The employer’s workweek runs from Monday
through Friday. Because Columbus Day fell on Sunday, October 12, 1969, it was
observed on Monday, October 13 and accordingly, the employer’s factory was
closed on Monday, October 13 in observance of the holiday. Claimant received
payment for this holiday on October 21, 1969, and the amount of such holiday on
October 21, 1969, and the amount of such holiday payment was $19.50. Claimant
received partial benefits for the statutory week ending October 12, 1969. She
did not claim any benefits for the statutory week ending October 19, 1969
inasmuch as she earned over $65 during the latter week.
Appeal Board Opinion and
Decision: Inasmuch
as the referee rendered a well-reasoned opinion, the Board adopts it as the
opinion of the Board:
The sole question in this
case is whether Sunday, October 12 or Monday, October 13, 1969 constituted a
paid holiday within the meaning of the Unemployment Insurance Law. Inasmuch as
the Columbus Day holiday fell on a Sunday, it was properly celebrated on Monday
pursuant to Section 24 of the General Construction Law. In addition,
considering the fact that the claimant never worked for the employer on Sundays
and the employer’s establishment is closed for business on Sundays and normally
opened for business on Mondays, and since the employer gave the employees a
paid day off on Monday, October 13, in observance of the Columbus Day holiday,
I find that the paid holiday was Monday, October 13 rather than Sunday, October
12. Claimant is therefore eligible for benefits for October 12.
In passing, we point out
that we have not overlooked our decision in Appeal Board, 138,551, in which
case the Board arrived at an opposite view. We did so because in the case cited,
the holiday in question was New Years Day, January 1, 1967, which fell on
Sunday, but was celebrated the following Monday by operation of Section 24 of
the General Construction Law. However, the paid holiday, according to the
agreement of the parties involved in that case, was Sunday, January 1, 1967,
rather than Monday, January 2, 1967. In the case now before the Board, the
parties chose to specify in the union agreement that the date of the actual
observance of a holiday, which in the present case was Monday, October 13,
1969, was to constitute the paid holiday. The referee herein so ruled and we
agree.
The initial determination
of the local office is overruled. The decision of the referee is affirmed. (May
26, 1970).
Index No. 1315-15
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
February 4, 1970
INTERPRETATION SERVICE – BENEFIT CLAIMS
INDUSTRIAL CONTROVERSY
"In the establishment," question of
COURT OF APPEALS DECISION
Matter of Albert J. Sierant, 24 NY 2nd 675
INDIVIDUAL BUILDINGS IN ONE COMPLEX:
QUESTION OF "ESTABLISHMENT"
Individual buildings and
structures of an industrial complex, separated by distances of 60 to 400 feet
and located in an area broken up by railroad tracks and public thoroughfares,
were held to be separate establishments even though they are interconnected by
overhead bridges and their functions are interdependent.
DECISION
The Legislature has
provided, in subdivision 1 of section 592 of the Labor Law, that employees who
lose their employment because of a strike will not be paid unemployment
benefits for a period of seven weeks, even through they took no part in that
strike, if it occurred in the "establishment" in which they worked.
Insofar as pertinent, subdivision 1 provides:
"The accumulation of
benefit rights by a claimant shall be suspended during a period of seven
consecutive weeks beginning with the day after he lost his employment because
of a strike, lockout, or other industrial controversy in the establishment in
which he was employed."
In the case before us, the
claimants-appellants were employed by General Mills in various buildings in its
plant in Buffalo, New York. A strike by longshoremen in the plant’s grain
elevators resulted in the claimant’s loss of employment. Maintaining that that
strike took place in an "establishment" other than the one where they
were employed, the claimants insisted that they were not subject to the
suspension of benefits provided for by the statute. 1/ The Unemployment
Insurance Appeal Board, sustaining a decision of the Industrial Commissioner in
the claimants’ favor, determined that they were entitled to benefits from the
first day on which they lost their employment. On appeal, the Appellate
Division reversed and dismissed the claims.
1/ The present claimants were "selected as representative" of about 315 employees who filed similar claims for benefits.
The employer-respondent
General Mills is a manufacturer of flour, cereals and other wheat products from
the raw wheat grain. It operates a complex of grain elevators, flour and cereal
mills and packaged food plants connected by overhead bridges in an area lying
between the City Ship Canal and the Buffalo River and broken up by railroad
tracks and public thoroughfares. Wheat, received from ships and railroad cars
and stored and blended in the two grain elevators, is transported in the
overhead bridges to other storage areas and to the several mills and plants.
Originally, the elevators had been owned and operated by several corporations
having nothing to do with the manufacture of wheat products. They supplied
grain to the mill but, as one witness noted, "[h]istorically, they were
separate establishments." And there was ample evidence before the Board to
justify its conclusion that those elevators were separated from the other
buildings not only by substantial distances but by railroad tracks and public
thoroughfares. 2/
2/ More specifically, the buildings in which the non-striking employees worked are separated from the elevators by distances of anywhere from 60 to 120 to 400 feet. Indeed, (1) the warehouse and cereal plants are separated from the elevator closest to them by nine sets of railroad tracks and a public street, (2) a cereal mill is separated by railroad tracks, a public street and several high buildings and (3) a flour mill by a railroad sliding of three or four sets of tracks. Although it is true, as the employer points out, that a portion of the north wall of one building (the Utility Building) is formed by the storage tanks of one of the elevators, the record contains no evidence that any of the non-striking employees who were laid off performed services in the Utility Building.
On March 25, 1963, in
protest against the layoff of several of their fellows, all of the employer’s
longshoremen, who work in the grain elevators, engaged in a wildcat strike. As
a result of that strike, General Mills was unable to transfer grain from the elevators
to other parts of its plant and was compelled, within a few days’ time, to lay
off a large number of employees, including the claimants, who worked in its
flour and cereal mills, packaged food plants and other buildings. Although
there were only some 40 strikers, about 315 non-strikers were affected by the
work stoppage; the remaining 500 employees continued to work. The strike was
settled on April 24.
The longshoremen, who are
represented by Local 1286, International Longshoremen’s Association, perform
all of their work in the grain elevators except that once a day a longshoremen
goes to "measure grain" in the storage tanks. The contacts between
the longshoremen and the mill workers are minimal. The two sets of employees
belong to different unions, the longshoremen, as noted, to a Local of the
International Longshoremen’s Association and the other employees to Local 36 of
the American Federation of Grain Millers. Each union has different agreements
with respect to wages, hours and working conditions. There is no interchange of
personnel, the longshoremen being hired through the union or its hiring hall
and the other employees from the street. The elevators and the mills have
separate superintendents, and there are separate health, welfare and pension
plans. On the other hand, it should be noted, there are certain common
facilities, which serve both, such as the powerhouse, cafeteria, medical
office, supply and storeroom offices, machine shop, personnel and payroll
office and purchasing office.
Equating the word
"establishment" with "place" rather than
"enterprise" – in accordance with our decision in Matter of
Ferrara (Catherwood) (10 NY 2d 1) – the Unemployment Insurance
Appeal Board made a finding that the grain elevators constituted an
establishment, separate and distinct from the various mills and packaging
plants spread over the area. Therefore, the Board concluded, since the
claimants were not employed in the establishment in which the strike occurred,
they were not subject to the seven-week suspension of benefits.
Section 623 of the Labor
Law, insofar as pertinent, recites that 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 law." Accordingly, our task is simply to decide
whether there was substantial evidence to sustain the board’s determination and
not whether there was evidence to support the Appellate Division’s contrary
decision. An appellate court may upset the determination of the Appeal Board
only if it may be said, as matter of law, that the claimants were employed in
the same establishment as the striking longshoremen. In the present case, it is
clear, the Board’s determination is supported by substantial evidence and must
be upheld.
In Matter of Ferrara
(Catherwood) (10 NY 2d 1, supra), striking clerks of the National
Airlines office at Idlewild caused a layoff of the company’s mechanics in the
Idlewild hangar and of its clerks who had been working in Manhattan. This court
upheld the determination of the Appeal Board – confirmed by the Appellate
Division – that the strikers and the other two sets of workers were not
employed in the same establishment and that the latter were entitled to
unemployment insurance benefits. In so doing, the court ruled that the word
"establishment" in the statute (§592, subd. 1) was to be equated with
"place and situs" rather than given "an all-encompassing meaning
equated with ’enterprise’" (pp.7,8) and, consequently, was to be
"defined in geographic terms rather than in terms of corporate
organization or exercise of management powers and functions" (p. 8). 3/
3/ The Appellate Division expressed the same thought in Ferrara (11 A.D 2d 171, 173) by stating that the Legislature "did not mean by ‘establishment’ the whole compass of a large employer’s business institution where it operates in differently localized components."
Applying this principle to
the facts of the case now before us, it certainly may not be said, as a matter
of law, that the two grain elevators, which received wheat from ships and
railroad cars for initial storing and blending, are located in the same
"place or situs" as the mills and processing and packaging plants –
which, as already noted, are sprawled over a wide area – and, hence, that they
constitute the same establishment. The elevators are removed by up to 400 feet
from the mills and processing buildings and variously separated from them by
three or four sets of tracks of a railroad spur, by another nine sets of
railroad tracks and by public streets. Their geographic separateness is further
emphasized by the fact that the grain elevators were originally owned and
operated for many years by commercial elevator companies completely separate
and apart from the mill until General Mills, the holding company, ultimately
acquired all of the various outfits. In addition, other than the fact that one
longshoreman went daily to the two mill tanks – with which non-striking
employees had some contacts – to measure grain, there were no working relations
whatsoever between the striking and non-striking employees.
All in all, the Appeal
Board’s finding of a separate "establishment" was fully warranted by
the geographic location of the elevators. Moreover, such a conclusion better
accords with the legislative design of the statute and the construction which
this court has placed upon it than does the Appellate Division’s contrary
holding. The suspension provision should be "narrowly construed," we
declared in Ferrara, "to effectuate the broad humanitarian objects
sought to be achieved by the statute," and this, we added, is best done by
defining "establishment" in "geographic terms" (10 NY 2d,
at p. 8). 4/ Unemployment Insurance provisions were intended to protect
workers who lost their employment through no fault of their own. Striking
employees, the court continued, were excepted from coverage for a seven-week
period in the "interest of preserving (governmental) neutrality between a
contesting employer and employees and irrespective of individual need***. The
State must stand aside, at least during the early stages of an industrial
controversy, and thereby avoid the imputation that a dispute may be financed
through unemployment insurance benefits" (10 NY 2d, at p. 8; see, also Matter
of Heitzenrater [Hooker Chem. Corp.], 19 NY 2d 1,7). Non-striking
employees in the same "establishment" with the strikers were
similarly excepted, presumably either to prevent collusion between strikers and
those who, by reason of their close proximity, might be in a position to gain from
a strike or to induce the non-strikers to bring pressure to bear on their
striking co-workers to terminate the strike. Be that as it may, a restricted
construction of the term "establishment" to apply to immediate
geographic situs of the striking employees goes far toward preventing the
harmful effects of a loss of employment benefits upon innocent and uninvolved
employees.
4/ Such a construction also makes for ease of administration. Again, to cull from our opinion in Ferrara, the "geographic concept of ‘establishment,’ looking only to concrete facts, better fits the legislative purpose of simplicity of administration" and ease of understanding by both employee and employer, than one which would require "complex or abstract administrative determinations" with reference to "individual involvement, participation or interest" (10 NY 2d, at pp. 8-9)
The employer relies heavily
upon our determination in Matter of George (Catherwood) (14 NY 2d
234). It is true that the Appellate Division and our court there concluded that
the general Motors motor plan, forge and foundry at Tonawanda constituted one
establishment but what is significant and decisive is the fact that the Appeal
Board had so found, and the courts had no alternative but to uphold that
determination since there was substantial evidence to support it. 5/
5/ As a matter of fact, this aspect of the George case (14 NY 2d 234, supra) was a subsidiary one, the principal question decided being that General Motor operations as far apart as Buffalo, Tonawanda and Lockport constituted separate establishments. In reaching that conclusion, this court actually reinstated the determination of the appeal Board and reversed so much of the Appellate Division’s decision as held that they constituted a single establishment.
Whether the Board’s
determination in the case before us is at odds with its conclusion in George
is beside the point. It is enough to observe that in cases in which
administrative agencies arrive at variant results of seemingly identical fact
situations, the courts are under the necessity of confirming both
determinations if evidence is at hand to support them. Likewise, in the present
case, the Appeal Board’s determination must be confirmed, since it is supported
by substantial evidence that the non-strikers were employed in an establishment
separate and apart from that in which the strikers worked.
The order appealed from
should be reversed, with costs in this court and in the Appellate Division, and
the determination of the Unemployment Insurance Appeal Board reinstated. (May
15, 1969)
COMMENTS
Index No. 1460A-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
June 15, 1967
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL OR PARTIAL UNEMPLOYMENT
Vacation Pay
APPELLATE DIVISION DECISION
Matter of Jack Friedman, et al
Appeal Board Nos. 107,841, 107,842, 109,574
VACATION PERIOD; QUESTION OF
"DESIGNATION"
The first week in July is
held to be the time designated for vacation by a union agreement when it not
only prescribes that the "first week vacation pay each year shall be paid
during the first week in July," but also provides that an "employee
may request, before the July vacation period, a one week’s leave of absence
without pay, which shall be granted either one week before or after the
vacation."
DECISION
Appeal by the Industrial
Commissioner from a decision of the Unemployment Insurance Appeal Board, filed
May 26, 1964, which overruled his initial determinations and allowed benefits
to the claimants.
The issue is whether or not
the board could allow the claimants to receive benefits for the first week of
July when they were paid vacation benefits for that week by the employer.
In Matter of Miranda
(Catherwood) (13 AD 2d 571) the court found that under certain
circumstances an employee could receive vacation pay and still be eligible for
unemployment insurance benefits for the same period under the applicable
section 591(3) of the Labor Law. Since that decision, subdivision three has
been amended and to some extent rewritten.
The applicable language of
this statute as follows:
"3. Vacation period or
holiday.
The claimants in this case
were laid off from work in May of 1963 and were not recalled until July 8,
1963. The union agreement provided among other things that these claimants were
to have at least one week’s vacation; that the "first week vacation pay
each year shall be paid during the first week in July"; that the
"workers may work and receive their vacation allowances in cash in
addition to their regular pay"; that an "employee may request, before
the July vacation period, a one week’s leave of absence without pay, which
shall be granted either one week before or after the vacation, at the option of
the Employer".
The board found that the
union agreement did not designate a vacation period, but merely provided the
time for the payment of vacation allowances. A reading of the last clause of
the agreement relating to vacations as quoted above in regard to a leave of
absence mandates the conclusion that the first week in July was designated as a
vacation period.
In Matter of Miranda
(Catherwood) (13 AD 2d 571, 573) decided by this court in 1961, after
recognizing that Section 591 (subd. 3, par. 3) permitted a windfall to an
employee, with reference to vacation pay the court stated: "Apparently
this legislation, well intended, needs revision, if similar injustices are to
be avoided." The Legislature by Chapter 794 of the Laws of 1963 rewrote
Section 591 so as to correct the inequities. (See Memoranda of Commerce and
Industry Association, 1963 New York State Legislative Annual, p. 373.) To
affirm the present decision would be undoing what the Legislature very properly
corrected.
We would further note that
the argument of the claimants that the notice posted was ineffectual, under the
present facts, is without merit.
Decision should be reversed
and the matter remitted for further proceedings not inconsistent herewith. (May
31, 1967)
COMMENTS
An
appeal to the Court was taken because of disagreement with that conclusion.
However, even though the Court has now overruled the Board, its decision was
reached on different grounds. Nevertheless, this Court decision, and its
reasoning, supersede the Appeal Board decision.
This
requires a reinstatement of the principles with respect to the effect of posted
notices as they were applied prior to the Appeal Board decision. This, in turn,
means that an advance posting of a notice designating a vacation period should
be considered as satisfying the statutory requirements for all workers,
including not only those who were absent due to sick leave or similar reasons,
but also those who had been laid off prior to the posting of the notice.
Whenever
any such case arises and a determination denying benefits is made accordingly,
it is advisable to inform the claimant of the former Appeal Board decision.
This will enable him to decide whether he should request a hearing from such
denial of benefits. It will be appropriate to encourage the claimant to do so.
When
a hearing case involving the issue is forwarded to the Interpretation and
Review Section, it should be earmarked by special reference to these Comments
in order to assure full presentation of the Court decision and of the preceding
Appeal Board decision in the hearing and appeal process.
Index No. 1240-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 26, 1968
INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Fringe Benefits
APPELLATE DIVISION DECISION
Matter of Theo Shanley
REFUSAL – TEMPORARY EMPLOYMENT:
ABSENCE OF FRINGE BENEFITS
If fringe benefits are not
customarily offered for temporary jobs, a refusal of temporary employment
because of their absence is without good cause when the usual fringe benefits
for permanent employment are only provided after a qualifying period which is
not shorter than the duration of the offered temporary job.
DECISION
Appeal is taken by the
Industrial Commissioner from a decision of the Unemployment Insurance Appeal
Board, which reversed a Referee’s decision sustaining an initial determination,
which disqualified claimant from benefits on the ground that she had refused an
offer of employment without good cause. (Labor Law, §593, subd. 2, par [d]),
whether upon permanent or temporary employment, because substantial fringe
benefits customarily paid or supplied (after three months) for permanent employment
in her occupation were not provided for the temporary job offered her. The
parties are in substantial agreement as to the facts and appeal presents only a
question of law.
Claimant, a keypunch
operator, could not return to her employment at the termination of a maternity
leave of absence because her employer had meanwhile moved its entire keypunch
system from the area. Kelly Girl Service, an employment contractor for
temporary services, offered her six to eight weeks’ employment with another
employer as a key punch operator at the prevailing wage, which was at
substantially the same rate as that paid in that occupation for permanent and
temporary employment alike. Claimant refused the offer, stating her reasons for
desiring permanent only. As herein before indicated, the board found that the
prospective employer would not have provided the usual fringe benefits granted
by employers for similar work on a permanent basis, the benefits including free
hospital and medical insurance, participation in a retirement plan, paid
holidays and accrued vacation credits; and the board thereupon
"conclude(d) that the conditions offered to claimant were substantially
less favorable to claimant then those prevailing for similar work in the
locality."
It seems to us important to
note that the board later found that these "fringe benefits of a
substantial nature are provided to persons employed in similar occupations in
the locality for a period of three months or more". (Emphasis
supplied). It appears elsewhere that fringe benefits are not customarily
offered for temporary jobs in claimant’s occupation, for reasons that are
obvious and understandable. The board observed that claimant’s acceptance of
the temporary job would have deferred her commencement of the three-month qualifying
period in a permanent job, had one become available; but there is no suggestion
that claimant would not, or could not have left the temporary position for a
permanent job at any time. Moreover, it is clear, first, that the mere
possibility of a permanent opening might not be fulfilled, even within the
maximum period for payment of unemployment insurance benefits; and, second,
that at least at the time of claimant’s refusal of the temporary employment
neither the wage rate nor "the conditions offered [were] substantially
less favorable" (par. [d], supra) than those obtaining at the
outset of a possible permanent employment and for three months thereafter; and
to that extent no justification for the refusal existed, within the literal
meaning of the statute. Our decision rests also upon the additional and broader
ground that the rule enunciated by the board in this case contravenes the basic
intendment and the spirit of the Unemployment Insurance Law. Since the
enactment of the statute, fringe benefits have no greatly increased in number,
nature and diversity and have been extended to so may employments that, in
general, they have come to constitute one of the major factors in
employer-employee relations and have become of such value as to render the adjectival
"fringe" something of a misnomer. As claimant contends, such benefits
"are to be considered part of over-all compensation." (Matter of
Asserson [Catherwood], 25 AD 2d 895). We recognize, too, the
validity of claimant’s additional argument that "the statute makes no
distinction between temporary and permanent employment" (Matter of
Lehrman [Corsi], 281 App. Div. 936); but this cuts both ways and
requires that only for a substantial reason may an unemployed claimant refuse
temporary employment, even of one day’s or one week’s duration (Matter of
Walls [Catherwood], 26 AD 2d 883; Matter of Kotlowitz, [Catherwood],
24 AD 2d 813) or, indeed, refuse a permanent job paying prevailing wages but
"less than a job which is not available for which claimant’s skill might
qualify him if such a job were available" (Matter of Matyevish [Catherwood],
15 AD 2d 387, 388). The effect of the board’s holding in this case would be to
permit a claimant to obtain unemployment insurance benefits despite his refusal
of a temporary job, for which he is fitted and which pays the prevailing wage
rate, and to permit him to wait indefinitely for a job to become available
which shall pay not only the prevailing wage but, after three months, fringe
benefits as well, provided, of course, the claimant’s employment shall survive
such three-month qualifying period.
The matter of temporary
employment poses for this claimant, as doubtless for many others, a manifest
problem, and one evoking sympathetic consideration; but it seems rather clear
to us that the board’s decision does not constitute a proper and authorized
solution when we recall the purpose and intent of the unemployment insurance
statute. The act 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 [Mays, Inc. – Catherwood], 12 AD 2d
204, 205, 206.)
The decision should be
reversed, without costs, and the claim remitted for further proceedings not
inconsistent with this opinion. (June 14, 1967)
COMMENTS
The significance of fringe
benefits in evaluating whether an offered job meets the test of prevailing
conditions is discussed in the Comments of A-750-1669. A review of those
Comments is suggested.
Index No. 1460B-5
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
November 28, 1967
INTERPRETATION SERVICE – BENEFIT CLAIMS
TOTAL UNEMPLOYMENT
Compensation without work – other
Appeal Board Case Number 140,822
HOLIDAY PAY WITHIN STATUTORY PERIOD,
QUESTION OF
Payment for a holiday is
considered to have been made within the 30 days required by Section 591.3(c) in
order to constitute a "paid holiday," even though not collected by
the claimant within that period, if the employer was prepared and ready to make
the payment within the 30 days had the claimant called for it as was
customarily done by the employees.
Referee’s Decision: The initial determinations of the
Out-of-State Resident Office holding claimant ineligible to receive benefits
effective December 26, 1966, on January 2, 1967, on the ground that such dates
represented paid holidays for which no benefits are to be paid; and charging
claimant with an overpayment of $9.75 in benefits, ruled to be recoverable is
overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimant, a machine operator, was
employed by a manufacturer of men’s slippers for about eleven years until
December 20, 1966 at which time she was laid off.
Pursuant to the agreement,
between the employer and claimant’s union, the employees are entitled to
holiday pay for Christmas and New Year’s Day, provided they had worked a
certain number of hours preceding the holiday. Claimant had received such
holiday pay in prior years under union agreement. She was entitled to receive
holiday pay for Christmas, Sunday, December 25, 1966, and New York'’ Day,
Sunday, January 1, 1967. The employer prepared claimant’s check for the
Christmas holiday pay on December 31, 1966 and prepared claimant’s check for
the holiday pay due for New Year’s Day on January 11, 1967.
Claimant was unable to call
for the holiday pay in person at the employer’s premises as was customarily
done by the employees, because she went to Puerto Rico on December 29,1966. She
sent her son to collect the checks from the employer sometime during January
27, 1967 and the son mailed them to claimant in Puerto Rico. The exact date
when claimant’s son collected the checks and mailed them to claimant is not
known.
However, the mailing time
from New York to Puerto Rico is from two days to one week, depending on whether
the mail is sent first-class or airmail. Claimant’s holiday checks were cashed
at a supermarket in Puerto Rico, which deposited them in its bank on February
2, 1967.
When claimant certified for
benefits in Puerto Rico during January 1967, she failed to report that she was
entitled to receive holiday pay for Christmas and New Year’s Day. Claimant
contends that she did not know whether or not she would be paid for these
holidays because she did not intend to return to her employer in New York.
Claimant was paid $9.75 in benefits, which she would not have received if she
had disclosed that she would be paid for the Christmas holiday.
Appeal Board Opinion and
Decision: In Appeal
Board 138,551 and 138,571, we held that a paid holiday occurring on Sunday and
celebrated publicly on Monday makes claimant ineligible for benefits on that
Sunday and not on Monday, when Monday is declared a public holiday. Since
Christmas fell on Sunday, December 25, 1966, although celebrated publicly on
Monday, December 26, 1966 and New Year’s Day fell on Sunday, January 1, 1967,
although celebrated publicly on Monday, January 2, 1967, we conclude that
claimant received holiday pay for Sunday, December 25, 1966, and Sunday,
January 1, 1967. Therefore, the initial determinations of the local office
holding claimant ineligible to receive benefits effective December 26, 1966 and
January 2, 1967, on the ground that such days were paid holidays, for which no
benefits are to be paid, should be modified to make the same effective December
25, 1966 and January 1, 1967, respectively, in accordance with the above
decisions.
Section 591.3(a) of the
Unemployment Insurance Law provides that no benefits shall be paid to a
claimant for any day during a paid vacation period or for a paid holiday.
Section 591.3(c) of the Law provides.
"A
paid vacation or a paid holiday is a vacation period or a holiday for which a
claimant is given a payment or allowance not later than 30 days thereafter,
directly by his employer…"
The credible evidence
establishes that claimant received holiday pay for December 25, 1966,
and January 1, 1967, within the statutory period. The employer was
prepared to pay claimant for these holidays on December 31, 1966, and January
11, 1967 if she had called for them, as was the custom. Claimant’s
holiday paychecks were made out and appropriate charges were made on the
employer’s books as of these dates. The checks were due and payable and
deliverable to claimant on said dates, and, therefore, the statutory
requirements were complied with by the employer. The fact that claimant cold
not pick up the checks personally when they were ready for her because she
had moved from the area, and that she had to rely on her son to collect the
checks and mail them to her, does not alter the effect of Section 591.3(c)
or change the nature of the paid holidays within the intent of the statute.
Furthermore, it is noted that the mail delivery could have taken from two days
to a week; but that the checks were deposited in Puerto Rico by a third party
on February 2, 1967.
On these facts, we conclude
that claimant was ineligible to receive benefits effective December 25, 1966,
and January 1, 1967, on the ground that said days were paid holidays for which
no benefits are to be paid.
Since claimant was
ineligible to receive benefits for December 25, 1966, because it was a paid
holiday, the payment of benefits she received for that day constitutes an
overpayment. When claimant failed to report that she was entitled to receive
holiday pay for Christmas, December 25, 1966, her certification was factually
false, even though not wilfully so. The benefit payment received by claimant as
a result of her false statement is recoverable under Section 597 of the Law.
The initial determinations
of the local office holding claimant ineligible to receive benefits effective
December 26, 1966 and January 2, 1967, on the ground that said days were paid
holidays for which no benefits are to be paid, are modified to be effective
December 25, 196 and January 1, 1967, respectively, and as so modified, are
sustained.
The initial determination
of the local office charging claimant with an overpayment of $9.75 in benefits,
ruled to be recoverable, is sustained. The decision of the referee is reversed.
(November 10, 1967)
Index No. 1605A-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
December 14, 1967
INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Discharge or leaving
Appeal Board Case Number 141,874
VOLUNTARY LEAVING, QUESTION OF;
EXERCISING OPTION AS TO TERMINATION DATE
Where an employer offered a
choice of dates for terminating the employment, a claimant does not become
subject to a disqualification for voluntary leaving by a selection of the
earlier of two dates since exercising such option does not make the separation
voluntary.
Referee’s Decision: The initial determination of the
local office disqualifying claimant from receiving benefits effective July 1,
1967, on the ground that she voluntarily left her employment without good cause
is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, a clerk-typist, was
hired on September 6, 1966, by a public utility, on a temporary basis. She was
one of a group of employees hired on the same basis. Their assignment was
scheduled to terminate on June 30, 1967. Just prior that date, the supervisor
called the entire group together and advised it that a few of them could
continue working until the end of July 1967, but not all of them could do so.
The choice of who would leave on June 30, 1967 was left to the members of the
group. Claimant agreed to be one of those who would be laid off on June 30,
1967.
Appeal Board Opinion and
Decision: The
precise question involved on this appeal was considered by the Board, in Appeal
Board 137,073. The Board in that case stated the following:
The
referee ruled that claimant voluntarily left her employment without good cause
because she could have worked until November 18. Although it is usually held
that one who leaves his job before his date of discharge is to be disqualified
for voluntarily leaving his employment without good cause, this rule is not
applicable to the facts herein. Claimant was discharged as of November 7, 1966
just as effectively as if the date were November 18, 1966. The employer had
determined to terminate her services in any event but merely gave claimant the
choice of selecting the date. She should not be disqualified for exercising the
option given to her by the employer. The termination of her employment was
involuntary (Appeal Board 81,852-61).
We
conclude that claimant did not voluntarily leave her employment without good
cause but was discharged by the employer as of November 7, 1966.
The rule in the cited case
supra, is applicable to the present case
The initial determination
of the local office is overruled. The decision of the referee is reversed.
(November 4, 1967)
Index No 740.6
755B.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICE OFFICE
January 12, 1968
INTERPRETATION SERVICE-BENEFIT CLAIMS
DETERMINATION OF BENEFITS
AVAILABILITY AND CAPABILITY
Pensions – Retirement
Restrictions of Employment – Wages
Appeal Board Case No. 139,774
YEARLY EARNINGS RESTRICTION
– LOSS OF SOCIAL SECURITY BENEFITS
Limiting employment to maximum yearly earnings so as not to jeopardize social security payments dos not render claimant unavailable unless such restriction precludes reasonable job opportunities, either because earnings are already close to the maximum or claimant’s occupation is such that the restriction militates against employment prospects.
Referee’s Decision: The initial determination of the
local office holding claimant ineligible to receive benefits effective January
23, 1967, on the ground that he was not available for employment is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, age 67, was employed as
a meat grinder for over ten years. At times, he had to lift fifteen thousand to
twenty thousand pounds of meat a day and found this work too heavy for him. He
asked for a helper which was supplied. The employer told him that he would have
to retire, but allowed him to work until the end of the year to December 30,
1966.
Claimant does not receive a
company or union pension. He applied for social security old age benefits and
expects to receive approximately $130 a month. He looked for work as a meat
grinder or dishwasher. He obtained one week’s work with a meat market.
Subsequently, his former employer rehired him as a meat grinder for the summer
season. There is no evidence purporting to indicate that employers of persons
in claimant’s occupation are unwilling or reluctant to hire persons with
claimant’s skills unless they are given reasonable assurance that the
prospective employee is ready, willing and able to continue in such employment
on a permanent basis, nor does it appear that an expressed intention to
continue in the employment for a limited period would create a barrier to the
hiring of such persons.
From the time of the filing
of claimant’s claim for benefits, he had intended to accept employment and
continue therein until such time as his earnings would reach the point of
affecting his eligibility under the Federal Old Age and Survivors Insurance
Plan. Claimant’s average weekly earnings were $93. If claimant were to obtain a
job at approximately his former average weekly earnings he could work for
approximately 16 weeks without jeopardizing his eligibility for benefits under
the said Plan.
Appeal Board Opinion and
Decision: The sole
support for the determination here under review is claimant’s indication that
he would not continue in employment beyond the time that his earnings would
have no effect on his eligibility for full benefits under the Federal Old Age
and Survivors Insurance Plan. It is undisputed that until such time as claimant
would have earned approximately $1500, he was ready, willing and able to work and
that from the time he filed his claim for benefits he could have worked
approximately 16 weeks without jeopardizing his benefits.
Thus, the issue is here
squarely presented, as to whether a restriction such as that imposed by
claimant produces his unavailability for employment during that period of time
when he is actually prepared to work. In our view, as long as it appears that
claimant’s opportunities for employment are not unreasonably limited by his
restriction to continue in employment for a limited period of time and he has
not yet approached his earnings limitation, he is actually in the labor market
and is available for employment within the purview of the Unemployment
Insurance Law. If, of course, the restriction which claimant imposes creates such
a barrier as to foreclose him from reasonable prospects of procuring work
either because he has already earned the maximum which he desires to earn for
the year or is very close to reaching that point or his occupation is such that
his expressed restriction to work only a limited period of time militates
against his prospects for procuring work, then in such events, he has
effectively produced his unavailability for employment. Such is not the
situation in the instant case and therefore we conclude that claimant’s
restriction did not produce his unavailability for employment during the period
here in issue.
The initial determination
is overruled. The decision of the referee is reversed. (January 2, 1968)
COMMENTS
Each
case will have to be decided on its own merits, taking into consideration the
restriction and wages already earned as compared with the employment
opportunities existing within the type of work and salary desired.
Index No. 1315-14
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 24, 1968
INTERPRETATION SERVICE – BENEFIT CLAIMS
STRIKE, LOCKOUT OR OTHER INDUSTRIAL
CONTROVERSY
In the Establishment, Question of
Appeal Board Case Number 141,785 & 786
QUESTION OF
"ESTABLISHMENT" – TRUCK DRIVERS
If truck drivers, though
reporting daily at a central garage to obtain trucks and work assignments,
perform a substantial portion of their work at the sites of construction jobs,
these job sites (and not the central garage) are the "establishment"
for the purpose of industrial controversy determinations.
Referee’s Decision: The initial determinations of the
local office suspending the accumulation of benefit rights by claimants A.J.C.
and D.C., effective July 26 through August 10, 1966, on the ground that they
lost their employment because of industrial controversy in the establishment in
which they were employed is overruled.
Appealed By: Industrial Commissioner
Findings of Fact: Claimants, truck drivers, were
employed by a construction company on a "shape up" basis. They
reported each day to the employer’s central garage and office for their work
assignments. When they worked, each claimant drove an empty truck from the
garage to one of several job sites in the Bronx where the trucks would be
loaded with rock and dirt to be dumped either at their same site, at the other
job site, or at some other location designed by the employer. Although neither
claimant worked regularly at any one location, each performed a substantial
portion of his work at the two Bronx job sites prior to the strike.
Occasionally, the employer rented one of its trucks for a day to another
contract and supplied one of the claimants as the truck driver. At the end of
each workday, claimants returned the empty trucks to the garage.
Claimant, A.J.C., commenced
to work for the employer in March 1965. During the next sixteen months he
worked 145 days and last worked on Friday, July 22, 1966. Claimant, D.C.,
worked a total of twelve days for the employer, at least three days a week in
each of the four weeks in the period ending July 22, 1966, the last day on
which he worked. On Monday, July 5, 1966, when claimants reported for work at
the central garage and office, they were told by the dispatcher that there was
no work for them because the employer’s operating engineers had struck and
picketed the two job sites in the Bronx. There was no strike, lockout or
industrial controversy at the employer’s central garage and office, which was,
located a substantial distance from each of the two Bronx job sites. Claimants
were unemployed thereafter until they returned to work on August 8, 1966.
Appeal Board Opinion and
Decision: We concur
in the conclusion of the referee that the pattern of work of each of the
claimants, as the result of daily "shape up," was sufficiently
regular and consistent to constitute them members of the employer’s work force
within the meaning of the Law. However, we do not agree with his conclusion
that the "establishment" in which they worked was the central garage
and office. Each of the Bronx job sites was a separate
"establishment." It is immaterial that claimants reported daily to
the central garage and office where they received their work assignments and
they drove the empty trucks from the garage to the locations assigned and
returned the empty trucks to the garage at the end of the day. Since they had
performed most of their work at the job sites, prior to the industrial
controversy which occurred there when the operating engineers struck and
picketed, we conclude that these job sites were the "establishments"
in which claimants were employed, and that each claimant is subject to the
suspension of benefits provided by Section 592.1 of the Law, since he lost his
employment because of an industrial controversy in the
"establishment" in which he was employed.
The initial determinations
of the local office are sustained. The decision of the referee is reversed.
(January 4, 1968)
COMMENTS
The claimants in the here
reported cases performed a substantial portion of their work at the
construction sites, which were held to be the "establishment." A
different result would obtain if claimants, such as truck drivers, airplane
crews, deliverymen, etc. report at a fixed location but thereafter move from
place to place, without any such place being a center for their work. In such
instances, the "establishment" would be the fixed location where they
report for work and receive assignments.
Index No. 1460 B.6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 29, 1968
INTERPRETATION SERVICE – BENEFIT CLAMS
TOTAL UNEMPLOYMENT
Vacation Pay
Referee Case Number 45-78-67
PAID HOLIDAY FALLING WITHIN VACATION
PERIOD
A paid holiday falling
within a "paid vacation period" (Section 591.3) does not extend such
vacation period.
Referee’s Findings of
Fact: A combined
hearing was held at which representatives of the claimants, the employer and
the Industrial Commissioner and a witness for the Commissioner appeared and
testified.
By initial determinations
claimants were ruled ineligible from July 5 through July 18, 1967, on the
ground that such period was a vacation period for which no benefits were
payable. Claimant R.Z., was ruled overpaid $12.75 in the statutory week ending
July 30, 1967, which was held non-recoverable.
Claimants, office workers,
performed services for the employer on July 3, 1967, and were paid holiday pay
for July 4. The plant was closed for vacation from July 3, through July 30 and
operations resumed July 31. The contract between claimants union and the
employer is silent as to the time set aside for vacations, and the employer
posted notices on bulletin boards stating in part "The 1967 vacation shut
down…will be from July 3rd, 1967, through July 30th,
1967…. There will be maintenance and repair operations necessary during the
vacation period and employees in these departments will schedule their
vacations with their supervisors." Claimants received two weeks vacation
pay but the specified period covered by the payment was not designated by the
employer. Claimants contending that their vacation pay coincided with the first
day of the plant shut down, July 3. The Industrial Commissioner took the
position that benefits were not payable for two weeks following the paid
holiday, July 4.
Article VIII(b) of the
union contract provides: "Any employee…on the payroll as of May 1st
of the vacation year who was employed prior to July 1st of the prior
year, shall be entitled to two (2) weeks vacation with pay."
Subdivision (g) provides:
"The vacation period will be determined by Management except for those
employees whose services are required by the Company during the above period.
The Company will arrange for vacation…to be taken…on consecutive days between
May 1st, and December 31st of the vacation year…."
Subdivision (h) provides:
"If a holiday falls within an employee’s vacation he shall receive the
holiday pay."
Referee’s Opinion and Decision: Section 591.3 of the Unemployment
Insurance Law provides in part: "…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…."
Claimants claim by
implication that they were not on vacation for two weeks following July 4, but
their vacation pay started on July 3 and they should be ruled ineligible only
through July 16 not July 18; that is, they were actually on vacation two days
less than two weeks although they received vacation pay for the full two weeks.
The bulletin states that
the plant would be shut down for vacation from July 3 to July 30 and does not
specify the start of vacations for various individuals. But, significantly, provision
is made for those employees who would be required to work: they would schedule
their vacation with their supervisors. This could only mean that their
vacations would be on days other than days of employment. This is fully in
accord with the provisions of the union contract that those whose services are
required during the vacation period will be given vacations arranged by the
employer on consecutive days between May 1 and December 31. I find therefore,
that it was the intention of the parties that vacation periods be exclusive of
days of employment and that therefore, July 3 was not in the vacation period.
The situation with respect
to July 4 is quite different. The union contract specifically provides that an
employee shall receive holiday pay if the holiday falls within an employee’s
vacation. There is nothing in the law in contravention of this stipulation and
it should be recognized as binding.
The paid vacation period
should be allocated to the first two weeks of unemployment in the plan shut down
period, that is from July 4 through July 17.
The initial determinations
are modified to be effective from July 4 through July 17 and as modified are
sustained. Claimant R.Z., was not overpaid. (December 17, 1967)
Index No. 2030A-1
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
January 31, 1968
INTERPRETATION SERVICE – BENEFIT CLAIMS
BENEFITS UNDER SECTION 599
Employment Opportunities
Appeal Board Case number 141,616
SECTION 599 ELIGIBILITY: EMPLOYMENT
OPPORTUNITIES IMPAIRED – DOMESTIC DUTIES
Domestic responsibilities
which affect a claimant’s ability to adhere to a particular work schedule are
included in the personal factors and circumstances to be taken into account in
determining under Section 599 whether employment opportunities for the claimant
are impaired.
Appeal Board Decision
The Industrial Commissioner
appeals from the decision of the referee filed September 11, 1967 (1)
overruling the initial determination of the local office holding claimant
eligible to receive benefits effective February 9, 1967 without disqualifying
conditions, on the ground that she was in regular attendance in a vocational
training course which was duly approved pursuant to Section 599 of the Law, and
sustaining the objections of the employer, on the ground that the said approval
was improperly made by the Industrial Commissioner, and (2) ruling that
claimant was ineligible to receive benefits effective February 9, 1967, on the
ground that she was not available for employment and that she was overpaid in
benefits, the amount of which, and its recoverability is to be ascertained by
the insurance office.
Findings of Fact: Claimant was last employed by the
employer herein for a period of five years to January 6, 1967. Claimant was
laid off due to a reorganization whereby her job was eliminated. Initially,
claimant was hired as a switchboard operator, and at the time of the
termination of her employment she was in a commercial planning department of
the firm, performing many specialized services having to do with the printing
business. Claimant’s terminal salary was $84 a week.
The claimant had requested
approval for vocational training under Section 599 of the Law in the occupation
of beauty operator. Claimant’s aptitude for the work of a beauty operator was
tested and it was found that she did have such aptitude. The claimant advised
the counseling services that she had a domestic situation, which would make it
somewhat difficult to adhere to the usual work schedule from 9 a.m. to 5 p.m.,
in an office job. The claimant claimed that she would have more control over
her working hours as a beauty operator, than in working in an office and in
this way she could better handle her domestic responsibilities. The employment
service, after taking all of these various factors into consideration approved
claimant’s application to take vocational training. Commencing February 9,
1967, claimant was enrolled in regular daytime attendance at a State approved
Vocational School, where she was taking a course as a beautician.
The employer objected to
the approval of claimant’s application for this vocational training, contending
the approval of the Industrial Commissioner was improper and that claimant
should be ruled unavailable for employment while attending school. The referee
overruled the initial determination stating that the claimant’s opportunities
in the field in general must be considered, without considering the
individual’s opportunities or other factors involving the individual requesting
permission to take the vocational training course.
Opinion: The sole issue in this case, is
whether the Industrial Commissioner’s approval of claimant’s application for
vocational training was valid under Section 599 of the Law. This Section
provides the following:
"Vocational
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, or at a course in basic
education skills, which the commissioner has approved and continues from time
to time to approve for the claimant. The commissioner shall give due
consideration to existing and prospective conditions of the labor market in the
state, taking into account present and anticipated supply and demand regarding
the occupation or skill to which the training course relates, and to any other
relevant factor. However, in no event shall the commissioner approve such
course for a claimant unless
"(a)
employment opportunities for the claimant are or may be substantially impaired
because of
"(1)
existing or prospective conditions of the labor market in the locality or in
the state or reduced opportunities in his occupation or skill; or
"(2)
technological change, plant closing or plant removal, discontinuances of
specific plant operations, or similar reasons
"(3)
limited opportunities for employment throughout the year due to the seasonal
nature of the industry in which he is customarily employed; or
"(4)
the claimant’s personal traits such as physical or mental handicap;
"(b)
the training course relates to an occupation of skill for which there are, or
are expected to be in the immediate future, reasonable employment opportunities
in the state:
"(c)
the training course if offered by a competent and reliable agency; and
"(d)
the claimant has the required qualifications and aptitudes to complete the
course successfully."
(Section
599 as last amended by L. 1966 CH 88 effective March 29, 1966).
The employer contends that
the approval of claimant’s application was improper, since it did not fall
within the frame-work of the legislative provisions, in that there must be a
substantial impairment of job opportunities in claimant’s occupation for any of
the specified reasons enumerated in the Statute in order to support an approval
for vocational training. These reasons are almost exclusively limited to
factors, which specifically affect employment opportunities in the field in
general, as opposed to any one individual’s opportunities. Also, the employer
contends that it was incorrect to take into consideration claimant’s domestic
problems, since that is a personal element which is not one of the excepted
conditions under Section 599 of the Law.
The Industrial Commissioner
urges that the Law, as amended, concerns itself specifically with an
individual’s factors and opportunities, rather than with the conditions in the
occupation in general. The Law, as originally enacted, provided that the
Commissioner might not approve such a course for a claimant, unless "(a)
Employment opportunities for which the claimant is fitted by training and
experience, are or may be substantially impaired because of…". In the
present Law, after the last amendment, this statement reads as follows:
"Employment opportunities for the claimant are, or may be substantially
impaired because of …".
It is significant that the
legislature found it necessary to amend the statute in question and in so
doing, relied on the Legislative memorandum which was submitted in support of
the bill, and discussed the problem in the following statement:
"Another
obstacle to the approval of a training course, is the provision in the present
Law, that there must be a substantial impairment of employment opportunities
for "opportunities for which the claimant is fitted by training and
experience". This is an objective test, which does not take any
personal circumstances of the claimant into account, such as a physical or
mental handicap.
There
may be no impairment of opportunities in the claimant’s occupation, but he is
not equipped or no longer equipped to work in that occupation. It is,
furthermore, a test, which cannot easily be applied to the unskilled worker, and
is inconsistent with the aim of achieving for each worker employment at his
highest obtainable skill." (underscoring added).
Based on the foregoing, we
are in accord with the position taken by the Industrial Commissioner. We are of
the opinion that it was the intent of the Legislature in amending the Law to
concern itself specifically with an individual’s factors and opportunities, as
well as those in the field in general. The program under Section 599 of the
Unemployment Insurance Law as amended in March 1966 was geared for individuals
such as the claimant in this case. The Industrial Commissioner is charged with
the responsibility of carrying out the provisions of this Section, and after
careful investigation, taking into consideration all relevant factors as
authorized by this statute, approved claimant’s application to take this
vocational training. It has not been shown that the action taken by the
Industrial Commissioner was either arbitrary, capricious or that he abused his
discretion. There is no reason therefore why the judgment of the Industrial
Commissioner should be disturbed in this case.
Decision: The initial determination of the
local office holding claimant eligible to receive benefits effective February
9, 1967 without disqualifying conditions on the ground that she was in regular
attendance in a vocational training course which was duly approved pursuant to
Section 599 of the Law is sustained and the objections of the employer thereto
are overruled. The initial determination of the local office approving claimant’s
application under Section 599 of the Law, sustained. The decision of the
referee is reversed. (January 5, 1968)
COMMENTS
Section 599 was amended in
1966 to provide that consideration be given to whether employment opportunities
for the claimant are or may be impaired, thus substituting a subjective test,
concentrated on the person of the claimant, for an objective test, concentrated
on his occupation.
In the present decision the
Appeal Board has indicated that in applying the above test the Industrial
Commissioner in evaluating "the claimant’s personal traits" is not
limited to a "physical or mental handicap" in the conventional sense
but may take into account other personal factors and circumstances affecting
the claimant’s employment opportunities.
Index No. 1105D-1
1205D-3
1605D-4
NEW
YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE
July 11, 1968
INTERPRETATION SERVICE – BENEFIT CLAIMS
REFUSAL OF EMPLOYMENT
Disqualification, Termination of
Appeal Board Case Number 144,502
VACATION PAY NOT USED IN TERMINATNG
DISQUALIFICATION
Vacation pay is not usable
in terminating a disqualification since it is not "subsequently"
earned remuneration.
Referee’s Decision: The initial determination of the
local office holding that the prior disqualification imposed against claimant
for refusing employment without good cause was not terminated by claimant’s
subsequent receipt of vacation pay is sustained.
Appealed By: Claimant
Findings of Fact: Claimant, a truck driver, was
disqualified from receiving benefits effective February 3, 1967, because of
refusal of employment without good cause. He had no employment between February
3, 1967 and February 20, 1967. During the period from February 20,1967, through
March 3, 1967, he received vacation pay in the sum of $364.80. This vacation
pay was payable under a union contract between the union and claimant’s
employer. Claimant conceded that the receipt of the vacation pay rendered him
ineligible to receive benefits for that period because it was paid vacation
period for which no benefits are payable.
Appeal Board Opinion and
Decision: It is
contended on behalf of claimant that the pay which he received for the period
from February 20 through March 3, which had been the designated paid vacation
period, terminated the disqualification resulting from his refusal of
employment on February 3 notwithstanding that, admittedly, he performed no work
subsequent to February 3. He maintains that because the vacation pay
constitutes remuneration as defined by Law, it follows that he had sufficient
remuneration after February 3 to terminate the disqualification and,
additionally, that because the receipt by him of such vacation payment
necessarily precluded his eligibility for benefits during that period, he must
be deemed to have been not totally unemployed in that period and hence
employed. We see no merit to the contention so advanced by claimant.
Section 593.2 of the Law
provides that a disqualification resulting from a refusal of employment without
good cause shall remain effective "until he (claimant) has subsequently
worked in employment on not less than three days of each of four weeks or
earned remuneration of at least $200." (Underscoring supplied.) The clear
intent of the statute was to continue the disqualification of the claimant who
refuses employment without good cause until he obtains re-employment which
produces the minimum requirement either in time of money as set forth in the
statute. It could not have been contemplated that the mere receipt by such a
claimant of a payment for a designated period in pursuance of a contractual
arrangement with his prior employer could be used to satisfy the purpose sought
to be accomplished by the statute. In essence, the statute is a recognition of
the fact that because of the refusal of employment without good cause, the
unemployment which thereafter ensues is no longer attributable to no fault of
the claimant, and that, consequently, the claimant should not be entitled to
benefits until other employment for a minimum time, or which produces minimum
remuneration, would result in a new period of unemployment after such
subsequent employment terminates. We think that this is evidence when significance
is given to the word "subsequently" which is included in the statute.
In our view, to effectuate the purpose of the statue, the pertinent clause must
be read as "until he has subsequently * * * earned remuneration of at
lease $200."
The vacation payment which,
claimant received was not earned by him subsequently to February 3 the date of
his refusal of employment. The payment resulted from the services he had
performed prior to February 3. The ineligibility during the designated vacation
period for which he received the vacation payment did not result from his
employment within the statutory definition of that term, but the ineligibility
resulted from a specific statutory mandate which provides that no benefits
shall be paid for such period (Section 591.3). The fact that the statute
provides that no paid vacation day shall be considered a day of total
unemployment does not necessarily require that the converse be accepted;
namely, that a paid vacation day should be considered a day of employment.
Thus, in an analogous situation, we held that a vacation payment was not to be
included as "compensation" in determining whether claimant was paid
aggregate compensation in an amount would preclude his accumulation of
effective days for eligibility under Section 523 of the Law. (See Appeal Board
100,956A and 124,517.) We believe that the same criteria must be applied in the
instant case and we therefore conclude that, notwithstanding the receipt by
claimant of vacation pay of more than $200 for a period subsequent to February
3, 1967, he did not subsequently earn remuneration of at least $200, and that,
therefore, the disqualification effective February 3, 1967, remain in effect
and was not terminated.
The initial determination
of the local office is sustained. The decision of the referee is affirmed.
(July 3, 1968)
COMMENTS
Specifically,
the following items should be marked obsolete:
a.
"Comments"
of release A-750-1653.
b.
Second
and Third sentence in item "2"and "3" of
"Comments" in release A-750-1625.
c.
Special
Bulletin A-710-44 (Rev.), item C-1 (page 3).