Bogdanowicz v. Director of Division of Employment Sec.
| Decision Date | 04 November 1960 |
| Parties | Albert W. BOGDANOWICZ v. DIRECTOR OF the DIVISION OF EMPLOYMENT SECURITY et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert T. Doyle, Northampton, for petitioner.
William C. Ellis, Quincy (Frederick A. Harkins, Boston, with him), for director of the division of employment security.
Before WILKINS, C. J., and SPALDING, WHITTEMORE and CUTTER, JJ.
This is an appeal by the director of the division of employment security from the decision of a District Court judge. See G.L. c. 151A, § 42 (). The judge's decision reversed a decision of the division's board of review denying unemployment benefits to the petitioner.
1. The judge correctly overruled the director's answer in abatement asserting that the petitioner had failed to comply with the statutory conditions precedent to judicial review. On January 28, 1959, the petitioner filed in the District Court a petition for judicial review. On February 10, 1959, an order of notice issued. General Laws c. 151A, § 42, was amended by St.1951, c. 763, § 18, after the decision in Weiner v. Director of Division of Employment Security, 327 Mass. 360, 362-363, 99 N.E.2d 57, to provide, 'Upon the filing of a petition for review by an aggrieved party other than the director, the clerk of the district court within seven days thereafter shall issue an order of notice.' The failure to comply with the statute was that of the clerk and not of the petitioner. Nothing in the amendment deprives the District Court of jurisdiction of the petition merely because of improper delay in issuing the order of notice on the part of a public official over whom the petitioner had no control. The present case is governed by the Winer decision.
2. The review examiner's decision became the final decisin of the division's board of review. He approved the decision of the director disqualifying the petitioner from receiving unemployment benefits upon his claim filed on September 16, 1958, because of the provisions of G.L. c. 151A, § 25, as amended through St.1956, c. 719, § 4. 1 Section 25 reads in part, 'No waiting period shall be allowed and no benefits shall be paid * * * for * * * (e) The period of unemployment next ensuing * * * [subject to further provisions not here relevant] after he [the employee] has left his work * * * (2) by discharge shown to the satisfaction of the director to be attributable solely to deliberate misconduct in wilful disregard of the employing unit's interest * * *.'
The review examiner found that the petitioner, in June, 1958, 'was laid off for a five-days period and was paid three days' vacation pay for which he qualified due to his length of service.' He did not report for work on September 3, 4, 7, and 8, and asserted 'that he had received permission from his supervisor to be absent on those days for vacation purposes.' The examiner concluded, The discharge was clearly based on the employee's failure to report for work on four days in September. The findings of fact included in these portions of the examiner's report had substantial support in the evidence. See Western Elec. Co., Inc. v. Director of Division of Employment Security, 340 Mass. ----, 163 N.E.2d 154. 2 The District Court judge reversed the board's decision on the ground that the decision 'was based upon an error of law in that the [union] contract * * * does not contain a provision to the effect that an employee who desires a vacation without pay shall make his request in writing.'
The union contract contains the following pertinent provisions. Article V, § 2, provides, 'Seniority shall be lost for * * * e. Failure to report the cause of absence from work within three (3) days from start of such absence.' Article VI, § 8, reads, Article VII, 'Leaves of Absence,' § 1, reads in part, 'Leaves of absence may be granted without pay on written request of an employee up to one year and no seniority shall be lost by taking such approved leave.' Article X, 'Vacations,' § 1, 'Vacation Provisions,' reads in part, 'The company will grant paid vacations to all employees coming under the terms of this agreement in accordance with the following provisions: [then follows a schedule of amounts of vacation allowable to employees based upon seniority and hours of work during stated periods].'
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