Schulte v. Director of the Division of Employment Security

379 N.E.2d 588, 376 Mass. 107, 1978 Mass. LEXIS 1104

• Court: Massachusetts Supreme Judicial Court
• Decided: July 26, 1978
• Status: Published

Opinions

Quirico, J.

This appeal challenges the decision of the board of review (board) of the Division of Employment Security (division) denying unemployment benefits to the plaintiff. The decision was affirmed by a judge of a District Court and, pursuant to G. L. c. 151 A, § 42, came here for direct review with a report from that court.

The evidence, supplemented when necessary by findings of the board, is summarized.¹ The plaintiff Aaron Schulte, a master plumber, operated his own plumbing business for approximately forty-three years. He was forced to give up the business for reasons of health in late 1969 or early 1970. He was then approximately sixty-five years old, and began receiving social security benefits. In July, 1970, he became employed on a part-time basis as a sales clerk in a drug store operated by his son. His hours were not regular; rather he was on call and worked when needed. He testified that he was capable of working full time. The store was closed in June, 1973, and the plaintiff was laid off. Since that time he has talked to a number of persons, two of whom he mentioned specifically, in an attempt to find new employment. He did not, however, make any formal application with anyone for work.

One of the primary questions in this case is the effect of the plaintiff’s religious observances on his claim for benefits. He is an orthodox Jew, observing the Sabbath from sundown Friday to sundown Saturday. In accordance with this practice he does not work from Friday noon to Saturday night. This was his custom when he was self-employed as well as when he worked for his son,* ² and it remains so to the present. However, he did work in the drug store on Sundays and there is no evidence in the record that any religious observance makes him unavailable now for such Sunday work.

On June 20, 1973, the plaintiff filed a claim with the division for unemployment benefits for the week ending June 23, 1973, and subsequent weeks. See G. L. c. 151A, § 38. The benefits were denied, and, after a hearing, this decision was affirmed. See G. L. c. 151A, § 39. Following an appeal by the plaintiff to the board, a review examiner held a de nova hearing on the claim and once again the benefits were denied. See G. L. c. 151A, § 41. The full board turned down an application for rehearing, thus accepting the decision of the review examiner as its own. See id. The District Court judge’s affirmance simply stated that the decision of the review examiner "was supported by substantial evidence and was not based on error of law.”³ It is the review examiner’s decision that is before us on appeal. See, e.g., Faria v. Director of the Div. of Employment Security, 350 Mass. 397 (1966).

In his decision the review examiner made two rulings: (1) that the plaintiff was unavailable for work during the relevant period, and (2) that he had not made a consistent effort to obtain work. Either of these rulings, if correct in law and fact, would alone be a sufficient basis for denying benefits under G. L. c. 151A, § 24 (b). The vagueness of the decision, however, makes it impossible for us to determine whether both of these rulings, or merely one, and if one which one, was the actual basis for the denial of benefits. Nor can we determine, on the state of the record before us, whether either of the two rulings is correct. The ruling that the plaintiff was unavailable for work appears to be based, at least in part, on the review examiner’s finding that the plaintiff observed the Sabbath from Friday noon to sundown on Sunday. This finding, however, is completely unsupported by the evidence in the record, which indicates rather that the Sabbath observance extended only until Saturday’s sundown. The plaintiff is entitled to have a new ruling by the board on the question of his availability which takes into account the correct Sabbath observance. See generally Sherbert v. Verner, 374 U.S. 398 (1963).

The same is true as to the board’s ruling that no sufficient attempt was made by the plaintiff to obtain employment. The opinion includes no subsidiary findings which indicate the degree to which this ruling was based on the conclusion of the board that the plaintiff held himself open to work only on a part-time basis. We therefore cannot determine whether the basis for the ruling was that the plaintiffs efforts were insufficient, or rather that they were completely irrelevant since they were aimed only at acquiring part-time work.

We will not rule on questions which are not presented in a case, or where the incompleteness of the record deprives us of findings of fact that are necessary for decision. Cf. Babson v. Babson, 374 Mass. 96, 106-108 (1977) (Quirico, J., dissenting). We therefore reverse the decision of the District Court and order the case to be remanded to the board with instructions that the findings of fact be clarified and completed and that the precise basis or bases of the decision be identified.

So ordered.

1 The evidence consists solely of the plaintiffs testimony before the board’s review examiner'. The transcript of this testimony was apparently prepared from a tape recording, and it has some gaps due to inaudible responses. When necessary these gaps will be filled by recourse to the findings of the review examiner.

2 The plaintiff indicated that he did not work for his son at all on Fridays, since the length of the drive between his home and the store made it purposeless for him to go to work when he had to return home by noon.

3 Prior to affirming the board’s decision, the District Court judge had dismissed the plaintiffs appeal on procedural grounds. We reversed the dismissal. Schulte v. Director of the Div. of Employment Security, 369 Mass. 74 (1975).