In re the Claim of Green

44 A.D.2d 345, 355 N.Y.S.2d 192, 1974 N.Y. App. Div. LEXIS 5049

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1974
• Status: Published

Opinions

Main, J.

This is an appeal from a decision of the Unemployment Insurance Board, filed August 27, 1973, which affirmed the decision of a Referee, holding claimant eligible to receive benefits.

■Claimant, Richard Green, was employed by appellant, Republic Steel Corporation, as a bricklayer when he was laid off on January 26, 1973 due to lack of work. Five days later appellant offered him employment as a laborer in the yard department which he refused, claiming that the work was unsuitable. Thereafter, he filed a claim for unemployment compensation, and the Industrial Commissioner determined that he was eligible for benefits. His former employer appeals this determination which was nonetheless sustained by the Referee who concluded that the proffered employment was unsuitable because it was not within the scope of claimant’s training and experience. Adopting the Referee’s findings of fact and opinion, the board affirmed his decision.

Appellant first contends on this appeal that claimant refused the offered employment as a laborer without good cause and, consequently, is ineligible for benefits. We cannot accept this argument, however, as it is clear that claimant has always worked as a bricklayer and never as a laborer. Even appellant concedes that a laborer’s duties “ entail substantially less skill and discretion than those of a bricklayer ” and that, by accepting the job as a laborer, claimant would suffer a minimum reduction in pay of 15%. On such a record as this, we find that there is unquestionably substantial support for the board’s determination that claimant had good cause to refuse the work offered 'because it was not within the scope of his training and experience (cf. Labor Law, § 593, subd. 2). Furthermore, since the existence of good cauke is a question of fact, the presence of such substantial support renders the board’s determination final (Matter of Almstead [Catherwood], 32 A D 2d 860).

This case is readily distinguishable from Matter of Bus (Bethlehem Steel Corp. Catherwood) (37 A D 2d 98, 102, affd. 32 N Y 2d 955) where a substantial reduction in earnings was the issue and where Presiding Justice Herlihy noted “ the board has not determined whether or not the jobs offered are those for which the claimants were fitted by training and experience.” Moreover, since the claimants in that case had in fact worked on the lower skilled jobs, they were demonstrably fitted for such work by training and experience. Here, the board has made a specific finding that claimant was not fit by training and experience for work as a laborer.

Appellant’s reliance on provisions of the collective bargaining agreement which call for the loss of unemployment compensation when an employee refuses ‘ ‘ to accept any work offered ’ ’ is to no avail. These provisions are in direct conflict with subdivision 1 of section 595 of the Labor Law which makes an agreement by an employee to waive his rights to unemployment insurance benefits invalid and, therefore, they will not be enforced.

The decision should be affirmed, with costs to respondents filing briefs.