Opinion
February 20, 1970
Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 11, 1968, which determined that claimant was ineligible to receive benefits effective September 11, 1967 to December 24, 1967 on the ground that she was not totally unemployed and charging her with an overpayment ruled to be recoverable. Claimant, employed as a general office assistant by a furniture company, lost her employment through no fault of her own on September 13, 1967. After her discharge she filed a complaint with the National Labor Relations Board charging the employer with engaging in unfair labor practices which resulted in a settlement agreement whereby the employer agreed to "make whole the claimant for any loss of pay she may have suffered by reason of the alleged discrimination against her by the payment to her of the sum of $1,800 less statutory deductions for Social Security and Federal and State income taxes, the said employee having stated that she does not desire reinstatement." Claimant contends that the settlement was in satisfaction of the charges and should not be considered back pay. The proceedings before the National Labor Relations Board, having been terminated pursuant to a stipulation whereby the employer agreed to pay claimant a lump sum of money for loss of pay, the lump sum paid constitutes wages for the purpose of determining benefits under the Unemployment Insurance Law. ( Matter of Tonra [ Miller], 283 N.Y. 676; Matter of McCoy v. Remington Rand, 262 App. Div. 790, mot. for lv. to app. den. 286 N.Y. 735.) Claimant did not suffer total unemployment and "the awards made on account thereof were properly held invalid" and the overpayment is recoverable. ( Matter of Skutnik [ Corsi], 268 App. Div. 357, mot. for lv. to app. den. 294 N.Y. 645; Matter of Stewart [ Corsi], 279 App. Div. 500.) Decision affirmed, without costs. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Staley, Jr., J.