Moya v. Employment Sec. Commission

• Decision Date: 24 February 1969
• Docket Number: No. 8705,8705
• Parties: Anthony F. MOYA, Petitioner-Appellant, v. EMPLOYMENT SECURITY COMMISSION of New Mexico, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 925

450 P.2d 925

80 N.M. 39

Anthony F. MOYA, Petitioner-Appellant, v. EMPLOYMENT SECURITY COMMISSION of New Mexico, Defendant-Appellee.

No. 8705.

Supreme Court of New Mexico.

Feb. 24, 1969.

Ellis J. French, Albuquerque, for petitioner-appellant.

Boston E. Witt, Atty. Gen., Santa Fe, A. M. Frazier, J. Richard Baumgartner, Special Asst. Attys. Gen., Albuquerque, for defendant-appellee

OPINION

NOBLE, Chief Justice.

Anthony F. Moya has appealed from a judgment of the district court affirming the decision of the Employment Security Commission, denying him benefits under the unemployment compensation act for a period of seven weeks for refusing an offer of suitable employment without good cause.

Upon review of the Commission's action, the district court found, among other findings, that following his discharge from the Armed Services, Moya filed a claim for unemployment benefits. He was 25 years of age, single and living with his mother and grandmother. His normal labor market for employment was the Albuquerque metropolitan area. He was qualified and registered with the Commission as a clerk-typist. The Commission referred him for an interview with Eberline Instrument Company for such work, with working hours from 3:30 p.m. to 10:30 p.m., Monday through Friday, and from 8:00 a.m. to 2:30 p.m. on Saturday, at $1.50 per hour, which was the prevailing pay rate for such work in the Albuquerque metropolitan area. Moya refused the interview and was disqualified from receiving benefits for seven weeks because of the refusal of an offer of suitable employment. He filed a timely notice of appeal with the appeals tribunal of the Commission, asserting lack of transportation and an obligation to care for his grandmother during the evening hours as the reason for his refusal of the employment. That tribunal upheld the determination of the hearing officer. An appeal was taken to the district court resulting in a conclusion that the Commission's findings were supported by substantial evidence and the Commission's ruling affirmed.

Claimant argues first that because there is testimony that no bus route runs between his home and the Eberline Instrument Company, the work offered was not suitable within the meaning of § 59--9--5(c)(1), N.M.S.A.1953, providing disqualification from benefits, the material portion of which reads:

'In determining whether or not any work is suitable for an individual, the commission shall consider * * * the distance of available work from his residence.'

He argues that he had transportation by family car available during the day but not in the evening and that no bus line went as far as his residence.

In a proceeding of this nature, it appears to be the general rule that the claimant has the burden of establishing his right to benefits. Haynes v. Unemployment Compensation Comm., 353 Mo. 540, 183 S.W.2d 77; Copeland v. Oklahoma Employment Security Comm., 197 Okl. 429, 172 P.2d 420; Jacobs v. Office of Unemployment Compensation, 27 Wash.2d 641, 179 P.2d 707. There is nothing in the record in this case to show any duty resting upon the employer, either express or implied, to furnish transportation to its employees to and from work. In such circumstances, the burden is cast upon the employee to provide himself with such transportation. Having this burden, a prospective employee who is unable to provide himself with such transportation, even though it be through no fault of his own, is not available for work within the meaning of the statute. Copeland v. Oklahoma Employment Security Comm., supra; Jacobs v. Office of Unemployment Compensation, supra; Kontner v. Unemployment Compensation Board of Review, 148 Ohio St. 614, 76 N.E.2d 611, 615; Putnam v. Dept. of Employment Security, 103 N.H. 495, 175 A.2d 519; Mohler v. Dept. of Labor, 409 Ill. 79, 97 N.E.2d 762, 24 A.L.R.2d 1393; Morgan v. Board of Review, 77 N.J.Super. 209, 185 A.2d 870; Clark v. Bogus Basin Recreational Association, 91 Idaho 916, 435 P.2d 256, 259. Section 59--9--5(c)(2), N.M.S.A.1953, so far as pertinent, reads:

'Notwithstanding any other provisions of this act, no work shall be deemed suitable and benefits shall not be denied under this act to any otherwise eligible individual for refusing to accept new work under any of the following...