Czarlinsky v. Employment Sec. Agency

• Decision Date: 24 March 1964
• Docket Number: No. 9372,9372
• Citation: 390 P.2d 822,87 Idaho 65
• Parties: Leta E. CZARLINSKY, Plaintiff-Appellant, v. EMPLOYMENT SECURITY AGENCY, State of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 822

390 P.2d 822

87 Idaho 65

Leta E. CZARLINSKY, Plaintiff-Appellant, v. EMPLOYMENT SECURITY AGENCY, State of Idaho, Defendant-Respondent.

No. 9372.

Supreme Court of Idaho.

March 24, 1964.

Givens, O'Leary, Doane & Givens, Boise, for appellant.

Franklin Powell, Boise, for respondent.

McQUADE, Justice.

Plaintiff-Appellant, Leta E. Czarlinsky, is hereinafter referred to as claimant. Defendant-Respondent, Idaho Employment Security Agency, is hereinafter referred to as the Agency, and the Industrial Accident Board as the Board.

For approximately four years prior to December 28, 1962, claimant, a widow with no children, was selling cosmetics and general drug store merchandise for a drug store. She was paid $1.50 per hour plus commissions for this employment. During the latter part of her employment, her daytime hours of work were from 9:00 a. m. to 1:30 p. m. On two evenings per week she worked from 6:00 p. m. to 10:00 p. m.

Claimant was separated from this employment on December 28, 1962. On January 3, 1963, she applied for work at the local Agency office. She was referred to another drug store operator who was seeking to employ a cosmetic and drug store sales-clerk. Upon arrival at this store, she filled out an employment application and was then interviewed by the prospective employer. The rate of pay was never discussed, but the employer told her that the hours of work would be from 9:00 a. m. to 6:00 p. m. one week and from 12:00 noon to 9:00 p. m. the following week. The claimant told the employer that she preferred not to work nights, whereupon the employer terminated the conversation stating that he had to have someone who would work nights. Upon inquiry by the local office, the employer told the Agency that the claimant had declined to accept the job because it involved night work.

Unemployment compensation benefits were denied claimant in the first instance because she refused an offer of suitable work without good cause. This determination was affirmed by the appeals examiner; however, his decision was not based upon claimant's refusal of an offer of suitable work without good cause, but because claimant had failed to apply for suitable work without good cause. On appeal, the Board entered an order affirming the decision of the appeals examiner denying claimant unemployment compensation benefits. Claimant takes her appeal from the order of the Board.

The Idaho Employment Security Law provides that a claimant is ineligible for benefits if her unemployment is due to her failure without good cause to apply for available work as directed by a representative of the director, or to accept suitable work when offered to her. I.C. § 72-1366(h).

The Board's order is predicated upon the following finding of the appeals examiner:

'* * * We must conclude that it was the claimant who initiated the breakdown of this application for work. She must bear the responsibility for the employer's failure to consider her further for the job in the same manner as if she had simply refused to apply for the position.'

The question raised on this appeal is whether the evidence supports the Board's finding and decision as a matter of law.

The foregoing finding of the appeals examiner is based upon claimant's own testimony as to what occurred during the interview held between her and Mr. Thomas, the prospective employer. Excerpts from that testimony are as follows:

'Q. And I want you to relate, to your best recollection, the conversation that occurred between you and Mr. Thomas on this occasion. Would you say what Mr. Thomas said, and what you said.

'A. Well, after making out my application, he asked, of course, about my sales experience and all which was shown on the application. And then he told me, of course what the work consisted of--that it was in the cosmetic department. And then he went on to relate that the hours would be nine till six one week; twelve to nine the following week. And then I told him that I preferred not working nights. And he asked the reason why and I told him it was because I had a home and I had a dog that had to have care for it, and I didn't care to be out after night hours, that I hadn't worked night hours and I preferred not working nights if I could possibly find something that--that I didn't have to.

'Q. But did you ever, at any course in the interview, say that you would not work nights?

'A. No.

'Q. You did not. You said you preferred not working nights?

'A. That's right.

'Q. And what occurred after you made this statement?

'A. Well, he said that that would close our conversation; that he had to have someone that would work nights.

'Q. Did he give you an opportunity to explain any further with regard to your preference for day work?

'A. Well he asked me. I just told him that I did have my home and that I had a dog that had to have care--should have care, and I didn't like to be out after--nights, particularly, in bad weather.

'Q. In the course of the conversation you had with Mr. Thomas, did he any time offer you a position?

'A. He did not.

* * *

* * *

'Q. Now when you talked with Mr. Thomas at Ballou-Latimer Drug, as I understand it, when he mentioned the hours that you would be working alternate weeks, you've indicated that you preferred not to work in the evening?

'A. I just told him that I preferred not working nights.

'Q. I see.

'A. And that was all that I did say.

'Q. What did he say then?

'A. He said, well, that this particular job, they had to have someone do it alternate weeks.

'Q. And then what happened?

'A. He said, 'Well, that terminates our conversation.'

'Q. How did you respond?

'A. Well, I thanked him and told him that if I found it was possible for me to work nights, that I would be very happy to let him know. And he said, well, it made no difference, he had two other applicants, anyway.

'Q. I see.

'A. And that was all.

'Q. Did you suggest at that time that this was simply a preference, but that you actually were willing to work nights?

'A. I didn't tell him that I would or that I wouldn't. I just said I preferred not working nights.'

Claimant's testimony before the Industrial Accident Board differed somewhat from that given the appeals examiner; however, the Board's finding that the claimant initiated the breakdown in the job interview is fully supported by the evidence. As noted above, claimant gave her prospective employer the impression that she would not have accepted a job even if it had been offered. Though she had ample opportunity to dispel this concept, she failed to do so; 'I thanked him and told him that if I found it was possible for me to work nights, I would be very happy to let him know.' Findings of fact of the Board in a proceeding instituted under the Employment Security Law, when supported by substantial, competent evidence will not be disturbed on appeal. Ramsey v. Employment Security Agency, 85 Idaho 395, 379 P.2d 797 (1963), Bean v. Employment Security Agency, 81 Idaho 551, 347 P.2d 339 (1959), In re Walker's Claim, 80 Idaho 420, 332 P.2d 199 (1958).

If claimant had actually been offered the job for which she was interviewing and had subsequently refused the offer, there would be no doubt of her ineligibility for unemployment benefits. She would have refused an offer of suitable employment. In re O'Toole's Claim, 81 Idaho 370, 341 P.2d 197 (1959). Claimant's desire to restrict her employment to daytime hours because she had a dog and did not wish to be out nights does not constitute good cause for refusing to make a reasonable effort to secure employment. I.C. § 72-1366(h). In re Stadler, 278 App.Div. 719, 103 N.Y.S.2d 213 (1951), Beall v. Bureau of Unemployment Compensation, 101 N.E.2d 780 (Ohio App., 1951).

The claimant argues that she applied for suitable work at the time and in the manner prescribed and that the position was not offered to her, and therefore she cannot be considered to be ineligible for compensation under I.C. § 72-1366(h). It is to be remembered, however, that the Employment Security Act is designed to alleviate economic insecurity and to relieve hardships resulting from involuntary unemployment. It was intended to provide benefits for those unemployed under prescribed conditions who are willing and able to work but unable to secure suitable employment on the labor market. Johns v. S. H. Kress & Co., 78 Idaho 544, 307 P.2d 217 (1957). It...