Swanson v. Minneapolis-Honeywell Regulator Co.

Decision Date11 December 1953
Docket NumberNo. 35988,MINNEAPOLIS-HONEYWELL,35988
Citation61 N.W.2d 526,240 Minn. 449
PartiesSWANSON v.REGULATOR CO.
CourtMinnesota Supreme Court

Syllabus by the Court.

1. M.S.A. § 268.08, subd. 1(3), which provides that a claimant must be 'available for work' to be eligible for unemployment benefits under the employment and security act, is construed to mean that, unless the claimant is accessible or attainable for work when suitable work is offered at such hours as are customary in the type of employment to which he is suited, he is not available for work. Held under the facts here that relator was not 'available for work' within the meaning of the statute.

2. 'Suitable work,' under the employment and security act, is construed to be such work as the employee customarily performs or such as he is reasonably fitted to perform by past experience or training and which is otherwise suitable under the provisions of § 268.09, subd. 1(5).

3. A claimant has 'good cause' within the specific area covered by that term as used in § 268.09, subd. 1(5): (a) where an employee, who is available for work, is offered suitable work which he refuses to accept for reasons which are of a Temporary and Emergency character, or (b) where an employee, who is available for work, is offered suitable work but refuses a particular job for justifiable reasons pertaining to That particular job.

Hall, Smith & Hedlund, Minneapolis, for relator.

Dorsey, Colman, Barker, Scott & Barber, John W. Windhorst and Horace Hitch, Minneapolis, for respondent Minneapolis-Honeywell Regulator Co.

J. A. A. Burnquist, Atty. Gen., K. D. Stalland, Asst. Atty. Gen., for Division of Employment and Security.

DELL, Chief Justice.

Certiorari to review a decision of the division of employment and security disqualifying relator for unemployment compensation benefits.

Relator is the mother of two children, ages five and eight. Her husband, a diabetic, has been hospitalized several times and because of his illness has had difficulty securing and retaining employment. For the last year and a half he was employed as a baker, which required that he commence work at 6 a.m. His working hours and illness largely placed the responsibility of caring for the children upon relator. Because of his condition and his medical and hospital expense, it was necessary that relator assist in providing for the support of the family. She was employed in Minneapolis by respondent Minneapolis-Honeywell Company, on the day shift, starting at 8 a.m. This permitted her, at 7:30 a.m. on her way to work, to place the youngest child in a nursery home where he could be cared for while relator was working. On October 19, 1951, relator was laid off from work through no fault of her own, and on October 22 she registered for unemployment benefits. About October 25 respondent company advised her that she could work in another of their plants, which was located on the opposite side of the city. She was told she would be required to commence work at either 7 or 7:30 a.m. She informed respondent company that before she could accept employment she would have to make arrangements for the care of her child and promised to contact them in a day or two. Being unable to leave the child at the nursery school that early in the morning or to otherwise make satisfactory arrangements for his care, she declined to accept the offered employment. About October 29 she advised the Minneapolis employment office that she had refused the offered employment. On November 26 she returned to her work on the 8 a.m. shift at respondent company's plant where she had formerly been employed.

During the period of unemployment from October 22 to November 25 she received unemployment benefits totalling $92. On March 21, 1952, relator was informed that she was disqualified for the unemployment benefits she had been paid and demand was made upon her for repayment of the $92. An appeals tribunal affirmed the disqualification, and the representative of the director of the division of employment and security sustained the decision of the appeals tribunal.

The material issues raised by the parties for review here are: (1) Was the relator 'available for work' under M.S.A. § 268.08, subd. 1(3)? (2) Did the relator fail, without 'good cause,' to accept suitable work when offered as required by § 268.09, subd. 1(5)?

1. The material portions of the statutes involved here provide for the payment of unemployment benefits where an employee, able to work and available for work, is unemployed unless the director finds that the employee, without good cause, has failed to accept suitable work when offered to him. The facts are not in dispute. The essence of this appeal is whether the statutes have been properly interpreted and correctly applied to the facts.

It is relator's contention that the issue of availability is not before us for review since availability was not, by any express findings, made the basis of the decision below. Respondent company contends that, since availability is an essential requirement which must be determined before the question of good cause arises, availability was necessarily determined although the determination was not expressly stated in the findings and is, therefore, properly before us for review. We are in agreement with the position urged by respondent company and consider the issue of availability properly here.

The requirement of availability arises under § 268.08, subd. 1(3), which provides:

'An individual shall be eligible to receive benefits with respect to any week of unemployment only if the director finds that:

'(3) He was able to work and was available for work, * * *.'

No issue as to whether relator was able to work is raised here. The problem is: Did relator's refusal to accept employment at either 7 or 7:30 a.m. make her unavailable for work? 'Available for work' is not defined in the statute, nor have we heretofore been called upon to define the term. It cannot be defined in precise terms which can be mechanically applied to the facts in each case, nor can there be any definite rule stated as to what precise facts constitute availability. 1 The statutes do not contemplate total availability under all circumstances since they provide that the work need not be accepted unless it is suitable and the work also may be refused of good cause exists. § 268.09, subd. 1(5).

Numerous attempts to define the elements constituting availability have been made by the courts of other jurisdictions. In Fleiszig v. Board of Review, 412 Ill. 49, 104 N.E.2d 818, 821, the court stated:

'* * * the phrase 'available for work' is designed to test his continued and current attachment to the labor force.'

In Roukey v. Riley, 96 N.H. 351, 352, 77 A.2d 30, 31, the court stated:

'* * * The availability requirement is said to be satisfied when an individual is willing, able and ready to accept suitable work which he does not have good cause to refuse, that is, when he is generally attached to the labor market. In other words, the purpose of the availability requirement is to test the claimant's attachment to the labor market.'

In Schettino v. Administrator, Unemployment Compensation Act, 138 Conn. 253, 260, 83 A.2d 217, 220, it is stated: 'He must be exposed unequivocally to the labor market.' In Unemployment Compensation Commission v. Tomko, 192 Va. 463, 467, 65 S.E.2d 524, 527, 25 A.L.R.2d 1071, the court stated:

'As used in the statute, the words 'available for work' imply that in order that an unemployed individual may be 'eligible to receive benefits' he must be willing to accept any suitable work which may be offered to him, without attaching thereto restrictions or conditions not usual and customary in that occupation but which he may desire because of his particular needs or circumstances. Stated conversely, if he is unwilling to accept work in his usual occupation for the usual and customary number of days or hours, or under the usual and customary conditions at or under which the trade works, or if he restricts his offer or willingness to work to periods or conditions to fit his particular needs or circumstances, then he is not available for work within the meaning of the statute.'

Cases of other jurisdictions, in which specific facts were considered to determine whether an applicant was available for work, shed further light on the subject. In Ford Motor Co. v. Unemployment Comp. Commission, 316 Mich. 468, 25 N.W.2d 586, claimant was employed on the afternoon shift. She was laid off from work and informed the claims examiner of the commission that she was not available for work except on the afternoon shift. The reason given for limiting herself to that shift was that she had two sons and wished to prepare their breakfasts and see them off to school. The court stated, 316 Mich. 473, 25 N.W.2d 588:

'* * * There is nothing in the statute to justify the conclusion that the legislature intended a claimant might limit his employment to certain hours of the day where the work he is qualified to perform is not likewise limited. It may be assumed that, in-a so-called 'around-the-clock' operation, the work on different shifts does not vary in character. When claimant stated she would not accept work except on the afternoon shift, she clearly made herself unavailable for work of the character that she was qualified to perform. She took such position, not for any reason connected with the character of the labor itself, but rather because of the situation in her home.'

In Mills v. South Carolina Unemployment Comp. Commission, 204 S.C. 37, 28 S.E.2d 535, unemployment benefits were denied claimant where she could not work on the third shift because of her children, even though she could have worked on the first or second shifts. Also, where claimant could only work between 1 p.m. and 9 a.m. because he had quit his full-time job in order to attend school, he was not available. Keen v. Texas Unemployment Comp....

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