Lowell v. Maine Employment Sec. Commission

• Decision Date: 23 April 1963
• Citation: 190 A.2d 271,159 Me. 177
• Parties: Graziella LOWELL v. MAINE EMPLOYMENT SECURITY COMMISSION et al.
• Court: Maine Supreme Court

Page 271

190 A.2d 271

159 Me. 177

Graziella LOWELL v. MAINE EMPLOYMENT SECURITY COMMISSION et al.

Supreme Judicial Court of Maine.

April 23, 1963.

Fales & Fales, by Roscoe H. Fales, Lewiston, for plaintiff.

Frank A. Farrington, Milton L. Bradford, Asst. Attys. Gen., Employment Security Commission, Augusta, Maine, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, SIDDALL, and MARDEN, JJ.

WILLIAMSON, Chief Justice.

This is an appeal from a decree of the Superior Court sustaining a decision of the Maine Employment Security Commission disqualifying the appellant claimant from benefits under the Employment Security Act. R.S. c. 29.

In our consideration of the appeal we are governed, as was the Superior Court, by Sec. 16, subd. IX, reading in part:

'In any judicial proceeding under the provisions of this chapter, the findings of the commission as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.'

'The Commission's findings of fact, when supported by any credible evidence, are conclusive. Judicial review is limited to the correction of errors of law. When the Commission decides facts contrary to all of the credible evidence in the case, it has committed an error of law. * * * When no dispute as to the facts exists or is possible upon all the evidence, the question becomes one of law.' Du Bois et al. v. Maine Employment Security Commission, 150 Me. 494, 505, 114 A.2d 359, 365.

The Commission in deciding (with one commissioner dissenting) 'that the claimant refused to accept an offer of work for which she was reasonably fitted within the meaning of Section 15, subd. III of the Employment Security Law,' adopted the findings of fact of the Appeal Tribunal.

Turning to the record of the Appeal Tribunal, the decision disqualifying the claimant from benefits was based on the following findings of fact:

'The claimant is a woman, 57 years of age, unemployed at the time of hearing (June 8, 1961). She last worked in a local shoe manufacturing establishment (defendant Wood & Smith Shoe Co.) as a repairer up to March 24, 1961, when she was separated due to lack of work. On this job her average earnings on piece rates were $50 to $55 a week.

'She filed initial application for employment security benefits in the current benefit year, effective April 2, 1961. She thereafter reported and filed weekly claims.

'On May 18, 1961 the claimant was referred to a local shoe shop (Belgrade Shoe Co.) for work as a repairer at an hourly rate of $1.25. The claimant contacted the employer, discussed the job, but did not accept as she preferred to wait until she might be recalled by a former employer. With this former employer as a repairer, she had worked on piece rate and claims to have earned well over $1.25 an hour. As of the date of hearing the claimant had expectations of returning to this former employer sometime in the early part of July.

'The claimant is classified occupationally as a blemish remover and inspector (boot and shoe industry.)'

In the record of the evidence taken before the Chief Appeals Referee, we read:

(Referee)

'Q Now--you (claimant) stated here on the 24th day of May: 'I was referred to a job opportunity on 5-18-51. I had an interview for this job on 5-18-61. I talked with the floor lady about the job. The job paid $1.25 an hour. I told the floor lady that I wanted to go back to Clark Shoe to work. She would not hire me when she found out I wouldn't stay if offered work at Clark Shoe. I went to Clark Shoe on 5-23-61. I was told they would call me as soon as work was available.' End of statement. 'And--you could have gone to work for Belgrade Shoe as a repairer?

'A Yes, but like I said, they won't hire me for a month or five weeks.

'MRS. LOWELL: (Cont) Like Mrs. Madore told me--when--to fix up you know, the insurance and other things, you know, that there is no sense to it. I got my mind to go to Clark Shoe. I make good money there. I use to make good money----

'REFEREE MEAGHER: How much did you make an hour there?

'A Two or three dollars an hour. You see, piece work, see? That's why I'm use to make pretty good. That's why I wanted to go back there. You know that when you work most all your life on piece work, you don't feel to work for $1.15 or $1.20. You know, like I do that Clark Shoe is a good place--good over there.

'Q How long have they been closed down now?

'A I use to work at a time at Clark--there was two Clarks--I was in Clark No. 2 when they closed. I was a stretch repairer there.

'Q You haven't worked for Clark Shoe since when?

'A Last November, I think. I think it was November. Or October----

'Q. Well--that's the whole story, is it? As to why you didn't get work--?

'A Yes, that's the truth.'

In the Superior Court 'the Defendant stipulated that the statement made by the (claimant) to the prospective employer was without malice on her part, and that she probably did not act as she did, solely for the purpose of preventing a job offer being made.'

The claimant urges that no offer of a job was made, and therefore the disqualification for benefits from refusal to accept work under Sec. 15, subd. III was an error of law.

To obtain benefits a claimant must establish; first, eligibility (Sec. 14), and second, that he is not disqualified (Sec. 15). Under Sec. 14, subd. III it is required that the claimant 'is able to work and is available for work.'

Sec. 15, subd. III read at the time the case arose in part:

'Sec. 15. Disqualification for benefits.--An individual shall be disqualified for benefits:

* * *

* * *

'III. Refused to accept work. If he has refused to accept an offer of suitable work for which he is reasonably fitted * * * the disqualification shall begin with the week in which the refusal occurred and shall continue for the duration of the period of unemployment during which such refusal occurred.

'A. In determining whether or not any work is suitable for an individual, the commission shall consider the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.'

The amendment in Laws 1961, c. 361, § 6 does not affect the case.

We are here concerned with disqualification and not eligibility. For our purposes the claimant did not lack eligibility under Sec. 14, subd. III. The Commission did not so find. The question is whether the claimant, otherwise being eligible for benefits, became disqualified therefor from refusal to accept suitable work. The Commission placed its decision firmly on disqualification under Sec 15. Krauss v. A. & M. Karagheusian, Inc., 13 N.J. 447, 100 A.2d 277.

We examine the conditions in Sec. 15, subd. III.

(1) 'If he has refused to accept an offer of suitable work.' We are satisfied that the finding of a refusal to accept an offer of work was supported by evidence. Whether the work was 'suitable' we will later discuss.

In brief, there was an opening for a repairer at Belgrade Shoe. The job was permanent insofar as any job may be so considered. The claimant was interested in the job only for a few weeks until an opening at Clark Shoe at a higher wage should appear.

With this condition attached, the offer of the job to the claimant was withdrawn. It is entirely accurate to say that Belgrade Shoe made no offer of a job with the condition of severely limited life expectancy attached thereto by the claimant. This, however, does not deny that a job was offered permanent in nature in distinction from temporary employment for a few weeks, and was refused by the claimant.

There is nothing unusual in the situation here disclosed. The claimant simply did not choose to accept a job as a repairer without making known her intention to leave when a hoped for job at higher pay might become open within a few weeks. Under these conditions the Belgrade Shoe lost interest in the claimant and withdrew its offer of a job.

No job is permanent, of course, in an absolute sense. Belgrade Shoe attached no condition to its offer of employment and doubtless would not have been surprised had the claimant given up a job as repairer to return to a former employer at a higher wage. This possibility is quite different from a condition attached to the proposed employment that the claimant presently plans to leave within a few weeks. Understandably the Belgrade Shoe did not wish to employ the claimant under these conditions.

(2) 'For which he is reasonably fitted.' There is no doubt of claimant's fitness. She was an experienced repairer.

(3) Was the work offered 'suitable' as measured by Sec. 15, subd. III(A)? There was no risk to health, safety and morals. Physical fitness, prior training, experience, and distance of work from her residence did not affect in the slightest the suitability of a repairer's job with Belgrade Shoe in comparison with the repairer's job held in several factories by the claimant.

There are left of criteria to determine whether the Belgrade Shoe job was suitable: (1) prior earnings, (2) length of employment, and (3) prospects for securing local work in her customary occupation, i. e., as a repairer.

The rate per hour offered by Belgrade Shoe was less the claimant says than she expected to earn at piecework with Clark Shoe. There is no indication that the offered hourly wage was not in line with wages in the industry generally or that it was a depressed wage. The difference in estimated income was not so great as to make the repairer's job at Belgrade Shoe unsuitable for the claimant.

The claimant had been unemployed since March 24, 1961. The Belgrade Shoe job was refused on May 18, 1961. The hearing of the Appeals Tribunal, whose findings of fact were adopted by the Commission, was held on June 8,...