Pac. Mills v. Dir. of Div. of Emp't Sec.

• Decision Date: 04 February 1948
• Citation: 322 Mass. 345,77 N.E.2d 413
• Parties: PACIFIC MILLS v. DIRECTOR OF DIVISION OF EMPLOYMENT SECURITY et al. (four cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 345

77 N.E.2d 413

PACIFIC MILLS

v.DIRECTOR OF DIVISION OF EMPLOYMENT SECURITY et al. (four cases).

Supreme Judicial Court of Massachusetts, Essex.

Feb. 4, 1948.

Petitions by the Pacific Mills against the Director of the Division of Employment Security and others, to set aside a decision of board of review in the division of employment security of the Department of Labor and Industries awarding unemployment benefits under the Employment Security Law to employees or former employees if otherwise eligible. From decree in each case affirming the decision and dismissing petition, petitioner appeals.

Decree in each case affirmed.Appeal from District Court of Lawrence; Daly, Judge.

Before QUA, C. J., and DOLAN, WILKINS, SPALDING, and WILLIAMS, JJ.

J. T. Noonan and E. E. Elder, both of Boston, for petitioner.

A. E. LoPresti, Asst. Atty. Gen., and J. A. Brennan, of Boston, for respondents.

QUA, Chief Justice.

In each of these cases the petitioner appeals from a decision of the District Court of Lawrence which affirmed a decision of the board of review in the division of employment security of the department of labor and industries awarding unemployment benefits under the Employment Security Law, G.L.(Ter.Ed.) c. 151A, as appearing in St.1941, c. 685, § 1, as amended, to an employee or former employee of the petitioner, ‘if otherwise eligible.’ We interpret the quoted words to mean if eligible in respect to all matters in addition to those which were directly in issue before the board.

The appeals to this court are in accordance with G.L.(Ter.Ed.) c. 151A, § 42, as appearing in St. 1943, c. 534, § 6. See now St.1947, c. 434. Under section 42 ‘the findings of the board of review as to the facts, if supported by any evidence, shall be conclusive, and the court shall render a decision or decree in accordance with such findings.’ See Jordan Marsh Co. v. Labor Relations Commission, 316 Mass. 748, 756, 56 N.E.2d 915. Questions of law are reviewable here.

The issue in each case is whether the employee is barred from benefits by a refusal to accept work offered by the petitioner as a substitute for that previously performed by the employee. The petitioner contends that the work offered was suitable and that the refusal to accept it is a bar. The interest of the petitioner in the matter is due to the fact that the amount of its contributions to the unemployment compensation fund is affected by the amount of unemployment benefits paid to its employees who are laid off.

The applicable provisions of the employment security law G.L.(Ter.Ed.) c. 151A, as appearing in section 1 of c. 685 of St.1941, are these: Section 24, provides, ‘An individual, in order to be eligible for benefits under this chapter, shall * * * (b) Be capable of and available for work and unable to obtain work in his usual occupation or any other occupation for which he is reasonably fitted * * *.’ Section 25 provides, ‘No waiting period shall be allowed and no benefits shall be paid to an individual under this chapter for * * * (c) Any week in which an otherwise eligible individual fails, without good cause, * * * to accept suitable employment whenever offered him * * *. ‘Suitable employment’, as used in this subsection, shall be determined by the director, who shall take into consideration whether the employment is detrimental to the health, safety or morals of an employee, is one for which he is reasonably fitted by training and experience, including employment not subject to this chapter, is one which is located within reasonable distance of his residence or place of last employment, and is one which does not involve travel expenses substantially greater than that required in his former work.' This section contains further provisions, required to be included to enable employers to receive credit for their contributions to the State unemployment fund against the Federal tax imposed upon them with respect to wages under U.S.C.1940 Ed. Title 42, §§ 1101-1103, 42 U.S.C.A. §§ 1101-1103, to the effect that no work shall be deemed suitable if the position offered is vacant because of a labor dispute, or if the remuneration and conditions of work are substantially less favorable than those prevailing for similar work in the locality, or if acceptance of the work would adversely affect the employee's membership in a labor organization. These last mentioned provisions are not here directly involved. In section 1(r)(2) of the law the definition of ‘Total unemployment’ includes inability to obtain ‘any suitable work.’

In the case of the employee Dzioba there was evidence that she had been trained for office work at a business college; that she had worked in Boston in a credit department; that she had been doing clerical work for the Pacific Mills for two years before she was told there was less work and she would have to go; that at the time of the hearing she was working as stenographer and interviewer in ‘ a credit office’ in Lawrence; that the work offered by the Pacific Mills as a substitute for the clerical work she had been doing would have consisted of circulating through the shipping department, stapling tags to pieces of cloth that were piled on trucks or benches, recording yardages, counting them on an adding machine, and operating a numbering machine; and that the pay would be about the same as that which the employee had been getting, except that it would be by the day instead of a salary. The board held that it was unreasonable to force a skilled office worker at the beginning of a period of unemployment to accept work ‘much below her best skill.’

The employee Lemieux had been making $45 to $50 a week as a weaver. The offered work as a winder would pay about $30. At the time of the hearing she was again working as a weaver. The board held that the employee lived in a city where there are ‘innumerable mills,’ and that she ‘should be given a reasonable opportunity to realize employment in her regular occupation as a weaver particularly when she had been unemployed for three days only.’

In each of the Evlian and Sobon cases the employee was a skilled weaver when laid off. The...