Krauss v. A. & M. Karagheusian, Inc., A--507

• Decision Date: 13 January 1953
• Docket Number: No. A--507,A--507
• Parties: KRAUSS v. A. & M. KARAGHEUSIAN, Inc.
• Court: New Jersey Superior Court — Appellate Division

Page 277

24 N.J.Super. 277

94 A.2d 339

KRAUSS v. A. & M. KARAGHEUSIAN, Inc.

No. A--507.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 24, 1952.

Decided Jan. 13, 1953.

Martin J. Kole, Jersey City, for appellant (Stein & Stein, Jersey City, attorneys; Frederick Z. Feldman, Jersey City, on the brief).

Sol D. Kapelsohn, Newark, for respondent (Kapelsohn, Lerner, Leuchter & Reitman, Newark, attorneys; Irving Leuchter, on the brief).

Clarence F. McGovern, Jersey City, for Board of Review, Division of Employment Security, Department of Labor and Industry.

Before Judges McGEEHAN, BIGELOW and JAYNE.

The opinion of the court was delivered by

JAYNE, J.A.D.

Counsel for the defendant-appellant represents the controversial question projected by this appeal to be one of novel impression in the domain of judicial review. It emanates from the administration of our Unemployment Compensation Law (R.S. 43:21--1, N.J.S.A.), which originated in the statutory law of our State in 1936. L. 1936, c. 270. Parallel legislation exists today in all 48 states, Alaska, the District of Columbia, and Hawaii, so that it may perhaps be said in accord with the intimations of counsel that although there is a lapful of pertinent administrative board and agency decisions, there are as yet only a handful of court decisions. We must recognize that the efficiency of legislation designed to provide social and economic security against the hazards of involuntary unemployment inheres in the wisdom of its administrative processes, and that administrative policies permissible within the boundaries of the legislation grow best in the soil of practical experience, hence except for cogent reasons courts are not inclined to interpose.

The present appeal brings before us the determination of the board of review appointed pursuant to R.S. 43:21--10(d), N.J.S.A., in a proceeding in which it was disclosed that one Wendel Krauss, who had been continuously in the employ of the defendant from 1929, requested on January 12, 1951 at the age of 68 that he be permitted to retire and receive the retirement allowances to which he would be entitled by virtue of the terms of the existing retirement and pension agreement between his employer and its employees. His request was granted and his eligibility for such pension payments was approved.

On September 20, 1951, however, he filed a claim for unemployment compensation. The local agency resolved that he was eligible for such benefits. Upon review the appeal tribunal reversed the determination of the local agency, and that which is before us is the adjudication of the board of review by which the determination of the appeal tribunal is reversed. The functions of the board are quasi-judicial. Adolph v. Elastic Stop Nut Corp., America, 18 N.J.Super. 543, 87 A.2d 736 (App.Div.1952).

In our consideration of the decision here impugned, we shall begin at the beginning and first recognize the factual findings of the board. We quote:

'He had been working in a cold, wet place which was filled with heavy odors from wet washed wool. This caused him to suffer from headaches and other ailments.

'He will not return to his employer in any capacity, although there is no evidence that the employer offered him any other work or had any other work for him. Between September 5, 1951, the date of his claim, and November 15, the date of the Appeal Tribunal hearing, he consistently sought work on at least three days in each week, going to three or four places each day.

'He lives in the City of Elizabeth. Not only is there no evidence that the employer alone constitutes a substantial portion of the labor market in that area, but we are satisfied that we are justified in taking judicial notice of the fact that actually that employer's factory is only a small section of the general labor market in the Elizabeth area.'

The opening criticism of the employer is that the plaintiff voluntarily terminated his employment in the factory of the defendant 'without good cause.' This was fundamentally a factual matter. Noticeably the board resolved that his place of employment was cold, wet, and filled with 'heavy odors from wet washed wool,' which 'caused him to suffer from headaches.' There as competent evidence undersetting the finding of those facts and we are not influenced by any material in the record to adopt a contrary determination. Cf. Curtis v. Liberty Restaurant, 4 N.J.Super. 13, 66 A.2d 199 (App.Div.1949), affirmed 3 N.J. 1, 68 A.2d 540 (1949).

However, a solution of the predominant question requires a comprehensive consideration of all of the relevant facts in their relation to the eligibility of the plaintiff to receive unemployment benefits under the requirements of the statute.

Concisely stated, those facts are that the plaintiff, having attained the age of 68, notified his employer of his desire to retire and upon his retirement from that service and continuously since has received private pension allowances of $10.90 a month from his employer. He remained idle for a period of several months after his retirement and then during a period of several weeks preceding the filing of his claim for unemployment benefits he actively but unsuccessfully searched for some remunerative occupation. True, he has not sought and will not accept employment in any capacity from the defendant, his former employer, if some such employment were available. Because of his age he desires 'light work.' Prior to his service for the defendant as a pump operator he had obtained some experience in the operation of screw machines, in the building of greenhouses, and as a painter and a pipefitter's helper. He is willing to accept employment in those capacities or any other work which at his advanced age he is capable of performing.

The public policy underlying the enactment of the Unemployment Compensation Law is expressed in R.S. 43:21--2, N.J.S.A., and irradiated in W. T. Grant Co. v. Board of Review, 129 N.J.L. 402, 29 A.2d 858 (Sup.Ct.1943). The commanding objective of the remedial legislation is to afford a protection to society against the economic hazards of involuntary unemployment, not to furnish a welcome sedative to those who prefer to drift more comfortably on the tides of indolence. Valenti v. Board of Review of U.C.C. of N.J., 4 N.J. 287, 290, 72 A.2d 516 (1950) is explanatory.

Among the several requirements to entitle an individual to receive benefits under the terms of our statute are those specified in subdivision (c) of R.S. 43:21--4, N.J.S.A., to wit, that he is able to work, available for work and has demonstrated that he is actively seeking work. Such are the standard availability requirements discoverable in most of the state unemployment compensation statutes.

The ability of this claimant to perform some type of remunerative service is not expressly controverted if the meanings 'capable of working' or 'having the physical and intellectual qualifications to do some work' are ascribed to the statutory expression 'able to work.' The claimant is expected to be 'qualified' to work, that is, to have the physical and mental ability and capacities to make him employable.

It may also be said that the claimant demonstrated that he was 'seeking work,' but not from his former employer. The predominant point of argument would seem therefore to be whether or not in recognition of the circumstances and of the import of the statute he was 'available for work.' This requirement is a broad one sometimes embracing the claimant's work history, the circumstances of his work separation, his personal work limitations, his attachment to the labor force for some suitable occupation, his willingness to work, and the existing state of the labor market in those respects relevant to his situation.

In general, the unemployment compensation laws have been interpreted to limit the availability requirement to suitable work. The criteria in determining suitable work include considerations of the degree of risk involved to health, safety, and morals, the claimant's physical and mental fitness, prior training, experience, earnings, and prospects of obtaining local work within the sphere of his qualifications and his residential situation. R.S. 43:21-5(c)(1), N.J.S.A.

It would seem that there must be, however, a residue of work which remains within the claimant's availability after the elimination of all unsuitable work and all work which the claimant may have good cause to refuse. Certainly the claimant must be willing to work and be able to perform some recognized sort of work which is ordinarily remunerative. Old age does not of itself conclusively establish that a claimant is unavailable for work.

In the present proceeding it is argumentatively asserted by the appellant that notwithstanding the uncontroverted activities of the claimant in seeking work, nevertheless his voluntary retirement from his regular occupation, his failure to apply thereafter to his former employer for some kind of work, and his expressed refusal to accept any re-engagement from that company if open to him render him unavailable for work within the import and purpose of the statute.

That abstract proposition should be somewhat qualified by the factual circumstances and findings of the present case. Here, there was evidence sustaining the finding of the board that the working conditions of the former employment had become unsuitable for him. The board evidently considered that the...