Summary
In Hallahan v. Riley, 45 A.2d 886 (N.H.), cited in Dubkowski and in Bayly, the plaintiff, separated from her job as a "mender" on March 11, 1945, refused employment as a "burler," a job involving less skill and less compensation.
Summary of this case from In re TroutmanOpinion
No. 3564.
Decided February 21, 1946.
An unemployed person is not entitled to benefits for the full statutory period of 20 weeks when other suitable work has been offered within that period. Under the Unemployment Compensation statute (R. L., c. 218), the question of suitability of the work offered in a given case is one of fact for the determination of the fact-finding body and cannot be attacked on an appeal to the Supreme Court if the findings are sustained by competent evidence. A claimant under the Unemployment Compensation statute may be justified in refusing as unsuitable, work paying a lower rate of compensation immediately after her separation from her regular employment. However, work which was unsuitable at the beginning of her unemployment may become suitable, within the meaning of the statute, when consideration is given to the length of unemployment and the prospect of securing her accustomed work.
APPEAL from a decision of the Appeal Tribunal of the Unemployment Compensation Division of the Bureau of Labor, reversing two decisions of an examiner of the Unemployment Compensation Division dated April 17 and May 5, 1945, and ordering that from and after the date of said decision; to wit, May 23, 1945, the plaintiffs be considered ineligible for unemployment compensation if they refused to accept jobs at burling or other suitable work under conditions which are not substantially less favorable than those prevailing for similar work within the locality. It was agreed that the case of Josephine S. Hallahan determines the rights of all other appellants in the present proceeding.
The plaintiff, by occupation a mender, was separated from her work on March 11, 1945 because of lack of work. Mending is skilled work. Burling is not. Menders can do burling but burlers cannot mend. The plaintiff having filed her claim for unemployment compensation was, on April 10, 1945, offered work as a burler in a textile mill in Manchester. This work paid sixty cents per hour, and the claimant's wages as a mender had been one dollar and four cents per hour. The plaintiff at this time advised the Registrar of the Federal Unemployment Service that she was a mender and did not consider the offer of work suitable. She also stated that she would not refuse a job if suitable offer was made. Accordingly, on April 17, 1945, she was disqualified by the examiner of the Unemployment Compensation Division on account of her refusal to accept suitable work. On May 5, having again refused employment as a burler, she was declared ineligible for work upon the ground that she was interested only in mending. From these orders she claimed an appeal to the Appeal Tribunal of the Unemployment Compensation Division which, after hearing, rendered a decision upon May 23, 1945, by the terms of which the above orders of April 17 and May 5 were reversed and the plaintiff was allowed benefits up to the end of the employment week prior to the date of decision. It was further ordered, however, that "she should not be considered eligible if subsequently, without good cause, she refuses to accept work which under present conditions, and after her prolonged period of unemployment, be suitable for her, namely burling, or any other work which she can readily perform, the conditions of which are not substantially less favorable than those prevailing for similar work within the locality." From this decision she took an appeal to this Court under the provisions of R. L., c. 218, s. 5, Par. G.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Booth orally), for the plaintiff.
F. Maurice LaForce (by brief and orally), for the defendant.
The Unemployment Compensation statute, R. L., c. 218, s. 5, Par. G, authorizes a direct appeal to this court by "any party aggrieved by any ruling of law in any proceeding hereunder . . ." We are not therefore, concerned with the correctness of any findings of fact which may underlie the decision complained of. For any person aggrieved by a decision of fact, the statute above mentioned provides another remedy by appeal to the Superior Court. We are, therefore, called upon to consider in this proceeding only the question whether the decision of the Appeal Tribunal in any way violated the law applicable thereto.
Neither party questions that part of the decision reversing the prior orders of the examiner and allowing the plaintiff unemployment compensation benefits up to the end of the employer week preceding the decision, a period of some ten weeks. The plaintiff, however, contests the legality of the subsequent portion of the decision ordering that from and after the date of said decision, she should not be considered eligible for benefits if she refuses to accept work which "would be suitable for her, namely burling, or any other work which she can readily perform. . . ."
The plaintiff's position is thus stated in her brief: "According to the Tribunal, the passage of two weeks' time changes unsuitable employment into compulsory employment. We disagree. If the work offered was unsuitable on May 5, it was equally so on May 19, `the end of the employer week prior to this decision,' just 14 days later. In the case of a wage differential as great as is here involved, we believe that an unemployed individual is entitled to benefits for the full period allowed by statute (20 weeks) rather than be required to accept employment at the lower wage."
It thus appears that the plaintiff's complaint is focused upon the ruling of the tribunal that after a period of unemployment extending over ten weeks, the job of burling, which the plaintiff justifiably refused some weeks earlier as unsuitable, became suitable work for her to perform.
It should be pointed out in the first place that the question of the suitability of the work offered in a given case is one of fact and the determination of that fact in the present case cannot be attacked in this proceeding if it is sustained by competent evidence. The test to be applied in determining suitability of work is not left to speculation. The act provides that in determining whether or not any work is suitable for an individual, the commissioner shall consider, (1) the degree of risk involved to his health, safety and morals, (2) his physical fitness and prior training, (3) his experience and prior earnings, (4) his length of unemployment, (5) his prospect of securing local work in his customary occupation, and (6) the distance of the available work from his residence. (Numbers supplied). R. L., c. 218, s. 4, Par. C (1).
No complaint is made in the present case that due consideration was not given to factors (1), (2), (3) and (6). The complaint is, in effect, that undue weight was given to factors (4) and (5). In regard to this contention of the plaintiff, we accept as sound the following conclusions of an administrative tribunal in Indiana reported in 8 UCIS No. 9325:
"The Law does not presume that a person should be required to accept work at less than her highest skill or accept work at other than her usual skill and remuneration, providing such work is either available or that prospects are good for obtaining such work within a reasonable time. However, in the absence of such work or good prospects for obtaining the same within a reasonable time, if the claimant desires to be eligible . . . within the meaning of the Indiana Employment Security Act, she must stand ready to accept other work for which she may be qualified by training and experience, and to accept the rate of pay that prevails in that community for that type of work."
In other words, while a woman may be justified in refusing as unsuitable, work offered to her immediately after her separation from her job, the situation may change after the lapse of a considerable time during which she has remained unemployed. Work which was unsuitable at the beginning of her unemployment may become suitable when consideration is given to the length of unemployment and the prospects of securing her accustomed work. Although the applicant may continue to refuse jobs paying a lower rate of compensation, she must do so at her own expense rather than at the expense of the unemployment fund. The cushion of security between jobs provided by the statute was not designed to finance an apparently hopeless quest for the claimant's old job or a job paying equal wages. What length of time should be regarded as sufficient to require this result is again a question of fact with which we have no concern. The statute specifically requires that consideration be given to the factor of length of unemployment. No limitation upon the weight which shall be attached to this factor is to be found in the law.
The contention of the plaintiff that "an unemployed individual is entitled to benefits for the full period allowed by statute (20 weeks) rather than being required to accept employment at the lower wage" being in conflict with the conclusions above set forth, is overruled.
The foregoing conclusions are in accord with the uniform interpretation of similar statutes in thirty other states, reference to which is made in the defendant's brief, and it follows that the decision appealed from must be affirmed.
Appeal dismissed.
MARBLE, C. J., was absent: the others concurred.