Fisher v. Levine

• Decision Date: 27 February 1975
• Citation: 36 N.Y.2d 146,365 N.Y.S.2d 828,325 N.E.2d 151
• Parties: , 325 N.E.2d 151 Claim of Louis FISHER, Respondent, v. Louis L. LEVINE, as Industrial Commissioner, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 828

365 N.Y.S.2d 828

36 N.Y.2d 146, 325 N.E.2d 151

Claim of Louis FISHER, Respondent, v. Louis L. LEVINE, as Industrial Commissioner, Appellant.

Court of Appeals of New York.

Feb. 27, 1975.

Louis J. Lefkowitz, Atty. Gen. (Irving Jorrisch, Samuel A. Hirschowitz and Murray Sylvester, New York City, of counsel), for appellant.

No appearance for respondent.

FUCHSBERG, Judge.

The issue is whether the Unemployment Insurance Appeal Board's decision that claimant's retirement from the United States Postal Service in response to his employer's request for a reduction in work force was a 'voluntary separation' from employment 'without good cause' disqualifying him from receiving benefits is valid. The Appellate Division reversed the board's decision and the Industrial Commissioner appeals. We have concluded that the record supports the board's determination and, accordingly, we must reinstate its decision.

Claimant, then age 64 and an employee of the United States Postal Service for 27 years, retired from the service on June 30, 1972 in order to take advantage of an early retirement plan offered by his employer as an incentive towards achieving the latter's objective of reducing its work force. The retirement opportunity was explained in a memorandum issued by the Postmaster General on June 5, 1972. It notified employees that those meeting certain eligibility requirements who retired and were on a nonpay status no later than June 30, 1972 would receive a 4.8% Increase in retirement annuities. The memorandum, in part, stated: 'The situation creating the discontinued-service retirement opportunity arises from the fact that we have an excess number of employees. But for the No-Layoff provision in our National Agreement, we would be actively engaging in a system-wide reduction-in-force. * * * While I encourage you to take advantage of this opportunity to retire, particularly in time to get the 4.8% Cost-of-living living increase, I want it clearly understood that no employee will be coerced to submit a resignation in response to this request.' The memorandum also stated that resignations in response to the Postmaster General's request would be considered involuntary for retirement purposes, with the consequence that retirement benefits would be more favorable than if the retirement were considered voluntary by the Federal agency. Three days after his retirement, claimant filed for unemployment insurance benefits in New York.

Section 593 (subd. 1, par. (a)) of the Labor Law, Consol.Laws, c. 31 in relevant part, provides: 'No days of total unemployment shall be deemed to occur after a claimant's voluntary separation without good cause from his last employment prior to the filing of his claim until he has subsequently worked in employment for not less than three days in each of four weeks or earned remuneration of at least two hundred dollars.' The effect of this section is that, for a limited period measured by his subsequent employment (cf. Matter of James (Levine), 34 N.Y.2d 491, 494, 358 N.Y.S.2d 411, 412, 315 N.E.2d 471, 472), a claimant is ineligible to receive benefits if he voluntarily left his employment without good cause. Obviously, the claimant here could not have met the conditions of this section. And, after claimant had wended his way through the administrative pathways of the State unemployment insurance system, the Appeal Board, the system's highest decisional body, found that he had left his employment voluntarily and without good cause and, therefore, was subject to the disqualification period.

In the course of the administrative proceedings, claimant stated in support of his claim that he had elected optional retirement in order to take advantage of the postal service's offer of early retirement benefits and that both his employer and his union paper had led him to believe he would then be eligible for State unemployment insurance benefits.

The Appeal Board found that claimant could have continued to work until the mandatory retirement age of 70, that he could have recouped the 4.8% Increase in retirement annuity by working an additional nine months and that, in leaving his employment solely to take early advantage of the increase, he acted for a personal, noncompelling reason and without good cause.

Judicial review of the board's determination is explicitly limited by statute to questions of law. Section 623 of the Labor Law, in relevant part provides: 'A decision of the appeal board shall be final on all questions of fact and, unless appealed from, shall be final on all questions of law.' As a consequence, as to pure questions of fact, and factual inferences to be drawn therefrom, a decision of the Appeal Board, which then acts quasi-judicially, would be conclusive upon the courts if supported by substantial evidence. Here the evidentiary facts were undisputed. (See Matter of Cassaretakis (Miller), 289 N.Y. 119, 125, 44 N.E.2d 391, 394 (whether an individual was a member of the crew of a vessel), affd. sub nom., Standard Dredging Corp. v. Murphy, 319 U.S. 306, 63 S.Ct. 1067, 87 L.Ed. 1416.)

As to mixed questions of fact and law, i.e., where the conclusion turns on the combined consideration of factual and legal factors, the Appeal Board's authority is quasi-legislative with the concomitant right and responsibility to exercise its expertise and judgment. Decisions so arrived at have been denominated 'discretionary determinations'. (1 N.Y.Jur., Administrative Law, § 181, p. 601.) They are final if they have a 'rational basis'. (See, e.g., Matter of Marsh (Catherwood), 13 N.Y.2d 235, 239, 246 N.Y.S.2d 385, 387--388, 196 N.E.2d 47, 48--49.) This is not to be confused with the 'arbitrary and capricious' test applied to purely administrative actions and sometimes improperly applied to quasi-judicial or quasi-legislative determinations of an administrative agency. (See, e.g., Matter of Colton v. Berman, 21 N.Y.2d 322, 334, 287 N.Y.S.2d 647, 655--656, 234 N.E.2d 679, 684--685.)

Questions of Law, of course, may always be reviewed by an appellate court. (Matter of Van Teslaar (Levine), 35 N.Y.2d 311, 317--318, 361 N.Y.S.2d 338, 342--343, 319 N.E.2d 702, 705.)

Applying these rules, whether a particular separation from employment is 'voluntary' and 'without good cause' (Labor Law, § 593, subd. 1, par. (a)) in a particular case is usually a question of fact for the Appeal Board. Where, however, the issue of 'voluntariness' is not a question of fact alone, but where, as here, there is not even any dispute as to the evidentiary details, and it involves as well quasi-legislative considerations of policy relating to the intended scope of the statute, the question is one to the determination of which the Appeal Board may bring to bear its own special competence in carrying out the supervisory authority conferred on it by the Legislature.

This case also involves the application of other rules arising out of the fact that the claimant was a Federal employee. In such cases, the Appeal Board, and the subsidiary divisions of the State unemployment insurance administrative structure, are generally conclusively bound (U.S.Code, tit. 5, § 8506) by certain findings of the claimant's Federal employing agency. These include ^* 'the reasons for termination of Federal service.' (U.S.Code, tit. 5, § 8506, subd. (a), par. (4).)

Accordingly, it is the practice of the Industrial Commissioner to request the reasons for termination from the claimant's Federal employer. If the claimant and his Federal employer agree on those reasons, then, pursuant to Federal regulation, they are conclusive upon the State agency (20 CFR 609.18). Finality also obtains where the employee and his Federal employer disagree and a determination is then made by the Federal agency or the United States Civil Service Commission after a hearing on any issues in dispute. The Federal finding is not conclusive where the claimant disputes it and has not been afforded a hearing.

In the case before us, claimant asserts that his retirement was either involuntary or, if voluntary, was with good cause. His employer described the reasons for claimant's termination as 'retired--gave no reason', explaining that that terminology 'represents our conclusion that the claimant meets the tests of eligibility for discontinued service retirement * * * Claimant could have continued in his employment, had he not retired. He was not coerced to submit his resignation, but did so voluntarily.' Claimant disputed the Federal agency's conclusion that his retirement was voluntary. There was no hearing. ...