Consentino v. Ross

• Decision Date: 20 September 1979
• Citation: 420 N.Y.S.2d 422,71 A.D.2d 1042
• Parties: In the Matter of the Claim of Maureen CONSENTINO, Appellant, v. Philip ROSS, as Industrial Commissioner, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 422

420 N.Y.S.2d 422

71 A.D.2d 1042

In the Matter of the Claim of Maureen CONSENTINO, Appellant, v. Philip ROSS, as Industrial Commissioner, Respondent.

Supreme Court, Appellate Division, Third Department.

Sept. 20, 1979.

James J. Griner, Albany, for appellant.

Robert Abrams, Atty. Gen. (Richard C. Fitzmaurice, New York City, of counsel), for respondent.

Before GREENBLOTT, J. P., and STALEY, MAIN, MIKOLL and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 2, 1978, which affirmed the decision of a referee sustaining an initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits effective November 8, 1977 because she voluntarily left employment without good cause.

Claimant was employed at the Ford Nursing Home in Cohoes, New York. She had completed the educational requirements, examinations and application for licensure as a Registered Professional Nurse (RN) and thereby was entitled to and did obtain a temporary permit to practice as an RN, pursuant to section 6906 of the Education Law. When the permit expired on or about November 6, 1977 by reason of claimant's failure to pass the examinations, the employer suggested that the claimant obtain a permit to practice as a Licensed Practical Nurse (LPN), pursuant to the above section of the Education Law, which would allow her to continue her employment and to perform substantially the same duties that she had been performing. While initially receptive to the proposal, when apprised of the fact that her rate of pay would drop from the $5.14 an hour she had been receiving to the LPN starting level of $3.45 an hour, claimant rejected the proposal and submitted her resignation. Concededly, her only reason for refusing the offer of employment was the lower pay scale.

The board found that the claimant could have continued working and that she left solely because she was dissatisfied with the rate of pay, a reason which it found to be personal and non-compelling. Accordingly, it found her ineligible for benefits for voluntarily leaving employment without good cause.

The claimant contends that since the wage offered was substantially less than claimant had been receiving before the cancellation of her permit and the job duties of each position were substantially the same, paragraph (d) of subdivision 2 of section 593 of the Labor Law mandates a finding that claimant's leaving was for good cause, and she also contends that this court's holding in Matter of Michel (Presbyterian Hosp. in City of N. Y. Ross), 60 A.D.2d 438, 401 N.Y.S.2d 591, dictates a finding of eligibility.

It is to be noted that the question of whether a claimant has refused alternative employment with good cause is basically a question of fact (Matter of Green (Republic Steel Corp. Levine), 37 N.Y.2d 554, 376 N.Y.S.2d 75, 338 N.E.2d 594; Matter of Spack (Corsi), 305 N.Y. 753, 113 N.E.2d 150; Matter of Linker (Catherwood), 27 A.D.2d 884, 277 N.Y.S.2d 831). If there is substantial evidence in the record, the administrative determination is both rational and final (Labor Law, § 623; Matter of Green (Republic Steel Corp. Levine), supra; Matter of Tucker (Lubin), 8 N.Y.2d 1145, 209 N.Y.S.2d 829, 171 N.E.2d 904; Matter of Lipschitz (Lubin), 7 A.D.2d 777, 180 N.Y.S.2d 63) and the court's function is fulfilled. The board is also charged with the responsibility of interpreting the various provisions of the Labor Law relating to unemployment insurance (Matter of Marsh (Catherwood), 13 N.Y.2d 235, 239, 246 N.Y.S.2d 385, 196 N.E.2d 47). Moreover,

(t)he act (Unemployment Insurance Law) was designed to "lighten (the) burden" of "involuntary unemployment" which "so often falls with crushing force upon the unemployed worker and his family". (Labor Law, § 501.) "The primary purpose of the law is to ease the hardship of involuntary unemployment due to economic conditions or other conditions beyond the control of the employee. It was not intended as a substitute for a minimum wage law.

It was not intended to regulate wages it was intended as a substitute for the complete loss of wages forced upon an employee. (Labor Law, §§ 501, 522.) " (Matter of Sellers (J. W. Mays, Inc. Catherwood), 13 A.D.2d 204, 205-206, 215 N.Y.S.2d 385.) (Matter of Shanley (Catherwood), 27 A.D.2d 496, 499, 280 N.Y.S.2d 619. See...