Opinion
No. 789SC638
Filed 4 September 1979
Master and Servant 108.2 — unemployment compensation — plea of guilty to criminal charge — prayer for judgment continued — unavailability for work Where a claimant for unemployment compensation pled guilty to a charge of selling a controlled substance on 8 September 1975, prayer for judgment was continued until January 1976, and claimant testified that he was unsuccessful in finding work because prospective employers were waiting to see what his sentence would be, the Employment Security Commission could properly find that claimant had placed such an impediment in the way of his being employed that he was not "available for work" during the time he was awaiting sentencing.
APPEAL by the Employment Security Commission of North Carolina from Lee, Judge. Judgment entered 22 May 1978 in Superior Court, PERSON County. Heard in the Court of Appeals 30 March 1979.
Gail C. Arneke, Howard G. Doyle, Garland D. Crenshaw, Thomas S. Whitaker and V. Henry Gransee, Jr., by Gail C. Arneke, for appellant Employment Security Commission of North Carolina
No counsel for Collins and Aikman Corporation.
No counsel for James R. Yarboro.
Judge MARTIN (Robert M.) dissenting.
James R. Yarboro was employed by Collins and Aikman. On 8 September 1975 he pleaded guilty to selling a controlled substance. Prayer for judgment on his sentence was continued until January 1976 at which time he received a suspended sentence. Yarboro was discharged by Collins and Aikman the day after his arrest. He was unsuccessful in finding work and he testified "the reason I'm not being hired is because they are waiting to see what my sentence will be." The Employment Security Commission held that by pleading guilty to a criminal charge with a prayer for judgment continued, the claimant had placed such an impediment in the way of his being employed that he was not available for work during the time he was awaiting sentencing. The superior court reversed the Employment Security Commission. The Commission has appealed.
This appeal poses the question of whether the Employment Security Commission's finding that claimant was not available for work should have been reversed by the superior court. We hold that the superior court committed error in reversing the Employment Security Commission.
G.S. 96-13 provides:
(a) An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that —
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(3) He is able to work, and is available for work. . . .
We can find no cases on all fours with the case sub judice. The term "available for work" has been construed in other contexts in several cases. See In re Watson, 273 N.C. 629, 161 S.E.2d 1 (1968); In re Thomas, 281 N.C. 598, 189 S.E.2d 245 (1972), and In re Beatty, 286 N.C. 226, 210 S.E.2d 193 (1974). We believe that to be available for work a person must be in a position so that prospective employers will hire him for work of which he is capable of performing. In this case the claimant testified that he was not hired because prospective employers were "waiting to see what my sentence will be." We hold that the Commission could conclude from this that claimant was not in a position that prospective employers would hire him and he was not "available for work."
We reversed the judgment of the superior court and remand this case for the entry of a judgment conforming to this opinion.
Reversed and remanded.
Judge MITCHELL concurs.
Judge MARTIN (Robert M.) dissents.