In re the Claim of Hunger

40 A.D.2d 728, 336 N.Y.S.2d 525, 1972 N.Y. App. Div. LEXIS 3715

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 1972
• Status: Published

Opinion

Appeal from a decision of the Unemployment Insurance Appeal Board, filed July 1, 1971, which determined that claimant was entitled to unemployment insurance benefits. The Buffalo Slag Co., Inc., closely connected with the construction industry, operates on a seasonal basis, generally from April until November. The collective bargaining agreement provided for, among other things, protection of seniority rights and other benefits for employees who return each year from seasonal layoffs. Claimant, an employee of appellant, became inactive on December 19, 1969 and thereafter was eligible for and received unemployment insurance benefits. On April 1, 1970 a strike took place at employer’s premises and on April 27, 1970 claimant was called to return to work, but refused to cross the picket line at employer’s plant. The question presented is whether or not claimant lost his employment as a result of an industrial controversy, and therefore was subject to a suspension of benefits (Labor Law, § 592, subd. 1). The board has determined as a question of fact that the employment relationship between claimant and his employer terminated on December 19, 1969, the layoff date. Therefore, claimant did not lose his employment as a result of an industrial controversy, nor did he leave employment without just cause (Labor Law, § 592, subd. 1; § 593, subd. 2, par. [b]; Matter of Burger [Corsi], 277 App. Div. 234, affd. 303 N. Y. 654). The factual determination of the board is supported by substantial evidence and it cannot be disturbed on appeal (Labor Law, § 623). Decision affirmed, without costs. Staley, Jr., J. P., Greenblott, Simons, Kane and Reynolds, JJ., concur.