Barley v. Maryland Dept. of Employment Sec.

• Decision Date: 30 March 1966
• Docket Number: No. 74,74
• Citation: Barley v. Maryland Dept. of Employment Sec., 218 A.2d 24, 242 Md. 102 (Md. 1966)
• Parties: Laura Evelyn BARLEY v. MARYLAND DEPARTMENT OF EMPLOYMENT SECURITY.
• Court: Maryland Court of Appeals

Page 102

242 Md. 102

218 A.2d 24

Laura Evelyn BARLEY v. MARYLAND DEPARTMENT OF EMPLOYMENT SECURITY.

No. 74.

Court of Appeals of Maryland.

March 30, 1966.

James J. Lombardi, Upper Marlboro (Edward T. Conroy, Upper Marlboro, on the brief), for appellant.

James N. Phillips, Gen. Counsel, Md. Dept. of Emp. Sec. (Thomas B. Finan, Atty. Gen., Bernard S. Melnicove, Spec. Asst. Atty. Gen., and Peter Sfekas, Asst. Gen. Counsel, Baltimore, Md. Dept. of Emp. Sec., on the brief), for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.

BARNES, Judge.

The Referee of the Maryland Department of Employment Security (the Department) decided on September 16, 1964 that the appellant, Laura E. Barley (the claimant) was available for work and had not applied for or accepted suitable work. He denied the claimant unemployment benefits from July 10, 1964 until the claimant became reemployed and earned at least ten times her weekly benefit amount of $38.00. The Department's Board of Appeals (the Board) on October 7, 1964 affirmed the Referee's decision and on December 11, 1964, the Circuit Court for Prince George's County (Bowie, J.) affirmed the decision of the Board. This appeal is from Judge Bowie's order.

The claimant, a 54 year old woman was employed by ACF Electronics (ACF) as a wireman or solderer for 13 years prior to her separation from employment by ACF for an indefinite period on April 3, 1964. At that time she had 13 years of union seniority by virtue of which she was entitled to recall under the union contract. At the time of her lay off, her wage rate was $2.68 an hour. She filed a claim with the Department for unemployment benefits on April 5, 1964, was classified as a solderer, and was awarded $38.00 a week for 13 weeks until July 10, 1964, the date of her disqualification.

The claimant was sent to the Department's Employment Service Office on July 10, 1964 to discuss a potential job at the Johns Hopkins Physics Laboratory, Consultants & Designers Department (C & C Laboratories). The wage rate at C & D Laboratories for wiring, assembling and welding training was $1.95 an hour. The wage scale began at a minimum of $1.75 with a maximum of $3.25 an hour. The claim specialist's report, constituting a statement made and signed by the claimant on July 14, 1964, states in pertinent part as follows:

'I told the employer that interviewed me last Friday that I was waiting recall from my former employer. I spoke with personnel at A. C. F. Electronics and they said I was third on the list. They expect to call me by the end of the month. I was also asked what salary I had been receiving. I said $2.86 per hour and when I returned I would receive $2.75 per hour. I was told he could not match my salary that I had been receiving.'

At the hearing before the Board's Referee, the Referee asked the claimant if this statement 'was the gist of what you were talking about?' to which the claimant replied: 'Well, generalizing it, yes. Not word for word.' She stated that she did not remember the conversation 'word for word', but gave the following testimony before the Referee in regard to her recollection of the conversation with the representative of C & D Laboratories:

'He looked at my file and he said, 'oh, another ACF,' and I said, 'yes,' and he said 'I see you are subject to recall.' I said, 'yes, I am,' he said 'when will you go back?' I said, 'when, if an when I'm called, because I have seniority there, I hate to lose.' So he said * * * 'what were your wages at ACF' and I told him what they were and what they would be when I went back.'

The 'Statement of the Employer' states 'would have hired her, had she not been awaiting recall.'

As we have indicated the Referee denied the claim, the Board and later the Circuit Court affirmed the denial of claim. We have concluded that the order of the Circuit Court should be affirmed.

The Unemployment Insurance Law appears in Code (1964 Cum.Supp.) Article 95A, §§ 1 to 23. By Section 7(h) the scope of judicial review on the facts is substantially limited as Section 7(h) provides in part as follows:

'In any judicial proceeding under this section, the findings of the Board of Appeals as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.'

We have consistently applied this statutory provision. Judge Horney, for the Court, reviewed the prior Maryland cases and stated in Employment Security Board v. LeCates, 218 Md. 202, 207, 145 A.2d 840, 843 (1958):

'In unemployment compensation cases we have consistently held, as the law requires, that the findings of the Board as to the facts are conclusive, if there is evidence to support such findings. The court's jurisdiction, in such cases, is specifically limited to questions of law. Mitchell, Inc. v. Md. Emp. Sec. Bd., 1956, 209 Md. 237, 121 A.2d 198; Md. Emp. Security Bd. v. Poorbaugh, 1950, 195 Md. 197, 72 A.2d 753; Tucker v. American S. & Ref. Co., 1947, 189 Md. 250, 55 A.2d 692; Brown v. Md. Unemp. Comp. Board, 1947, 189 Md. 233, 55 A.2d 696. See also Franke v. Unemployment Compensation Board of Rev., 166 Pa.Super. 251, 70 A.2d 461 (1950). In stating the material facts, the court should state as facts such evidence as is most favorable to the findings of the Board. Steamship (Trade) Ass'n. v. Unemp. Comp. Bd., 1948, 190 Md. 215, 57 A.2d 818; Tucker v. American S. & Ref. Co., supra. Moreover, in reviewing the facts, a court is confined to determining whether there is evidence to support the findings of the Board, and in the absence of fraud, that finding, as stated above, is conclusive.'

As there is no fraud alleged or proved, the findings of fact of the Board's Referee, supported by evidence and adopted and affirmed by the Board, are conclusive upon us. The evidence most favorable to these findings of fact is reflected in the original statement by the claimant in the Claim Specialist's Report on Determination, set out above, and this statement indicates that the claimant stated to the representative of the prospective employer that she preferred to wait for recall from her former employer, ACF, and that the potential job was not diligently applied for or accepted by the claimant.

Article 95A, Section 6 sets forth the applicable law in regard to disqualification for benefits. It states in relevant part:

'(d) Failure to apply for or accept work; determination of suitable work. If the Executive Director finds that he failed, without good cause, either to apply for available, suitable work, when so directed by the Executive Director, or to accept suitable work when offered him, or to return to his customary self-employment (if any) when so directed by the Executive Director. Such disqualification shall be effective from the date when the application for work was to have been made, or when he was notified that suitable work became available to him, or when directed to return to his customary self-employment by the Executive Director, whichever is later, and shall continue for not less than one or more than ten weeks immediately following thereafter or until such individual has become re-employed and has earnings therein equal to at least ten (10) times his weekly benefit amount.

'(1) In determining whether or not any work is suitable for an individual, the Executive Director shall consider the degree of risk involved to his health, safety, and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.

'(2) Notwithstanding any other provisions of this article, no work shall be deemed suitable and benefits shall not be denied under this article to any otherwise eligible individual for refusing to accept new work under any of the following conditions: (A) If the position offered is vacant due directly to a strike, lockout, or other labor dispute; (B) if the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; (C) if as a condition of being employed the individual would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.'

The determination of the facts in regard to whether or not a claimant has applied for available, suitable work or has accepted suitable work when offered to the claimant is especially within the expertise of the administrative officials administering the Unemployment Insurance Law, involving as it does many subtle considerations and nuances of fact which need evaluation by those trained to make that...