Opinion
September 22, 1943.
Appeal from Unemployment Insurance Appeal Board.
The appellant contends that as a matter of law the initial determination of the Industrial Commissioner fixing March 28, 1942, as the date of suspending benefit rates should have been sustained and that the Board had no authority to change the date to April 19, 1942. Subdivision 10 of section 502 Lab. of the Labor Law reads: "`Total unemployment' means the total lack of any employment on any day, including employment not subject to this article, caused by the inability of an employee who is capable of and available for employment to obtain any employment in his usual employment or in any other employment for which he is reasonably fitted by training and experience, including employments not subject to this article." For four years prior to June 21, 1941, the claimant worked at her home in New York City as an embroidery machine operator for an undergarment company. The employment was seasonal and she worked about six months in each year, her earnings being about twenty-five dollars per week. She was married and had one child, ten years old. On March 28, 1942, her husband, who was a waiter, moved from New York City to Washington, D.C., and she moved with her husband and child to the same city. On June 21, 1941, she had filed a claim for unemployment insurance benefits at New York City and certified unemployment to August 1, 1941. She refiled for benefits with the same unemployment insurance office on December 26, 1941, and reported as unemployed to March 23, 1942. On March 28, 1942, the claim for benefits through the unemployment insurance office at Washington (New York as the liable State) was filed by the claimant. She was certified to weeks of total unemployment to April 19, 1942. On April 21, 1942, claimant was referred by the Washington, D.C., employment office to a job as a sewing machine operator in an establishment in Washington. She refused to accept this referral on the ground that she had always worked at home and had to take care of her ten-year-old child and could not accept employment outside of her home. On April 21, 1942, the Washington employment office certified to the New York unemployment insurance office that claimant had refused a job to which she had been referred. It was impossible to obtain employment in Washington as a home worker, since that city is not a manufacturing city as there are only a few factories and the employment service received no calls for home workers. That was the first time that there was any evidence in the case which showed that the claimant was not available for employment. The Board, therefore, had to report that it had evidence of claimant's unavailability as of April 21, 1942. Decision of the Appeal Board affirmed, with costs to the claimant-respondent. All concur.