Keough v. Director of the Division of Employment Security

344 N.E.2d 894, 370 Mass. 1, 1976 Mass. LEXIS 937
Massachusetts Supreme Judicial Court·Decided March 24, 1976·Published·Cited by 35 cases

Opinions

Reardon, J.

Ellen E. Keough worked as a spinner for a firm in Hudson, Massachusetts, from August, 1971, to March 1, 1974, when she became separated from employment. She filed a claim for unemployment compensation on March 4, 1974. She was disqualified pursuant to a decision of the Director of the Division of Employment Security, which decision was affirmed by a review examiner. The decision was predicated on the fact that she had placed “a restriction on her employability, namely, that her acceptance of any work not within walking distance of her home, depended on whether transportation arrangements could be made,” and he found her not to meet the eligibility requirements of G. L. c. 151A, §24 (b).1 On January 23, 1975, the board of review upheld the decision of the review examiner, and the case then proceeded to the District Court of Marlborough for review under the provisions of G. L. c. 151A, § 42. There a District Court judge affirmed the decision of the board of review and, on Mrs. Keough’s claim of appeal, reported the case under § 42 to this court for determination. The challenge by the claimant here is to the director’s interpretation of G. L. c. 151 A, § 24 (6), defining eligibility for benefits. The claimant also alleged a violation of her right to equal protection under the law.

It appears that the claimant and her husband have one car which the husband uses to commute to work. Public transportation in the area where they reside is “meager,” [3] and the claimant does not have the use of a motor vehicle on a daily basis. She had evinced her willingness to accept full time employment day or night on the basis that she has transportation. In effect she has restricted her acceptance of work not within walking distance of her home to employment where transportation arrangements could be made.

There was no error. Review in the District Court of decisions of the Division of Employment Security board of review is governed by G. L. c. 151A, § 42, as appearing in St. 1973, c. 1114, § 18, which provides in part that the “findings and decisions of the board shall be reviewed in accordance with the standards for review provided in paragraph (7) of section fourteen of chapter thirty A.” Under G. L. c. 30A, § 14 (7), as appearing in St. 1973, c. 1114, § 3, the decision of the board may be set aside or modified if the court determines that substantial rights of any party have been prejudiced because, among other reasons, the decision violated constitutional provisions, was based on an error of law, or was unsupported by substantial evidence. Substantial evidence is defined in c. 30A, § 1 (6), inserted by St. 1954, c. 681, § 1, as “such evidence as a reasonable mind might accept as adequate to support a conclusion.” We have had occasion in a series of cases to make it clear that findings of the review examiner, adopted by the board of review, supported by substantial evidence with conclusions not based on any error of law, should be affirmed by the District Court. Bogdanowicz v. Director of the Div. of Employment Security, 341 Mass. 331, 335 (1960). See Martin v. Director of the Div. of Employment Security, 347 Mass. 264, 268 (1964), and cases cited. We have further stated that where the board is the sole judge of credibility and the weight of evidence, and where its findings are supported by evidence, it is not open to a District Court judge or to this court to substitute other views as to what should be the determination of the facts. Wagstaff v. Director of the Div. of Employment Security, 322 Mass. 664, 667 (1948). See Olechnicky v. Director of the Div. of Employment Security, 325 Mass. 660, 662 (1950).

[4] To the extent that this case presents a question of law, namely, whether a person can be deemed unavailable for work and thus ineligible for unemployment benefits due to a lack of transportation, we answer in the affirmative. The Commonwealth contends, correctly in our view, that “[a]vailability places the responsibility of getting to work upon the claimant.”2 Other jurisdictions considering this question under analogous provisions of their own unemployment compensation laws have come to similar conclusions. See, e.g., Mohler v. Department of Labor, 409 Ill. 79, 84-85 (1951); Moya v. Employment Security Comm'n, 80 N.M. 39, 40 (1969); Kontner v. Unemployment Compensation Bd. of Review, 148 Ohio St. 614, 620-621 (1947); Copeland v. Oklahoma Employment Security Comm’n, 197 Okla. 429, 432 (1946); Rabinowitz Unemployment Compensation Case, 177 Pa. Super. 236, 239-240 (1955); In re Barcomb, 132 Vt. 225, 231 (1974).

The question then arises whether in the circumstances of this particular case the claimant, by making her acceptance of work dependent on whether transportation can be arranged, has so restricted her employability as to remove herself from the labor force and render herself not “available for work” within the meaning of G. L. c. 151A, § 24 (6). This is primarily a question of fact that has been entrusted to the informed judgment of the board. See Farrar v. Director of the Div. of Employment Security, 324 Mass. 45, 50 (1949). In reviewing decisions of the board the courts of this Commonwealth are directed to “give due weight to the experience, technical competence, and specialized knowledge of the... [board], as well as to the discretionary authority conferred upon it.” G. L. c. 30A, § 14 (7). Based on the record in this case it could be found that the claimant had effectively made herself [5] unavailable for work. Applying the appropriate standards of appellate review outlined above, we cannot say in this case that the review examiner and the board of review erred in finding that the claimant did not meet the requirements for benefits under G. L. c. 151 A, § 24 (6), or that their conclusions were not supported by substantial evidence.

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Keough v. Director of the Division of Employment Security, 344 N.E.2d 894, 370 Mass. 1, 1976 Mass. LEXIS 937 (Mass. 1976).

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