Wednesday, December 7, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION WITH GOOD CAUSE - CASE NO. 7

Another old AB case on the issue of "reprimand" versus harassment:

"A-750-573
Index No. 1650C-3
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

September 27, 1944

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Disciplinary Action – Reprimand
Appeal Board Case No. 10,713-44


VOLUNTARY LEAVING OF EMPLOYMENT – DISCIPLINARY ACTION – REPRIMAND FOR ABSENTEEISM
(SECTION 593.2 OF LABOR LAW)

Resentment because of deserved reprimand for repeated absences from work was not good cause for voluntary leaving of employment.

Referee’s Decision: Initial determination disqualifying claimant for voluntary leaving of employment without good cause is overruled. (3/29/44)

Appeal By: Industrial Commissioner

Findings of Fact: Claimant worked for about seven years prior to January 15, 1944 as a switchboard operator, clerk and receptionist for a public utility. She always resided in New Rochelle. Prior to June 1943 claimant was stationed at the main office of the company located at Mt. Vernon. Subsequent to June 1943 claimant was transferred to the employer’s branch office at Pelham. Claimant used her husband’s automobile to travel to her place of employment at Pelham, which was located about four or five miles from her residence. About ten minutes’ time was consumed in traveling to the establishment. At the time of her voluntary separation on January 15, 1944 claimant earned $31.32 a week. Claimant filed an application for benefits on January 18, 1944 and reported to March 14, 1944. When claimant filed her claim she gave as the reasons for her separation "inconvenience and dampness." The employer certified to the local office that claimant "resigned – dissatisfied with working conditions." Claimant was called in for an interview at the local office on February 2, 1944 relative to the reasons for her voluntary leaving. At this conference claimant signed a statement that she left her employment because the dampness and gas odors in the employer’s establishment at Pelham caused her to have constant colds and to be sick during the winter and because of the inconvenience of traveling to the place of employment. She also stated that she had received medical treatment on several occasions from the company’s doctor and her personal physicians for colds and that the doctor in the plant directed her to remain home until she recovered. On February 3, 1944 the local office mailed a letter to the company’s physician requesting information relative to the working conditions in the establishment and whether they adversely affected claimant’s health. The personnel director of the employer, in writing, informed the local office on February 9, 1944 that the working conditions in the plant were not injurious to claimant’s health, that claimant had consulted the company’s physician on only one occasion in November 1943 when claimant was suffering from the grippe and that claimant stayed out of work about five days due to such illness. On February 8, 1944 the local office issued an initial determination holding that claimant voluntarily left her employment without good cause. The employer’s records disclose that claimant absented herself from work due to colds and minor ailments for seventeen days subsequent to her transfer to the Pelham office. It was the policy of the employer to review from time to time the attendance records of employees showing frequent absences with the view of counseling them to improve their punctuality. On January 9, 1944 claimant was called in for a conference by the personnel manager relative to her frequent absences from work. On this occasion claimant was advised to improve her attendance record and was admonished that a continued unsatisfactory record in this respect might result in her release. Claimant resented such treatment from the personnel manager. She considered the latter’s statements as a severe reprimand coupled with an invitation to resign. On January 10, 1944 claimant submitted a letter of resignation to the employer. In this letter claimant set forth as the reasons for her voluntary leaving that the establishment was in a very inconvenient location, that her supervisor denied her request to take a half hour for lunch on Wednesday, that he was discourteous to her when she took time off to attend her grandmother’s funeral, that he discriminated against her and that the dampness in the plant adversely affected her health. Claimant’s primary reason for her voluntary separation can be gleaned from her testimony as follows:

"Q. So you say that summing the whole thing up, you left because Mr. M. spoke to you and complained about your frequent absences and told you if you didn’t improve you would be forced to resign, and you felt the absences were not you fault, and you had no control over it and felt that was an invitation to quit. Is that what you say?

A. That’s right. The different times I had been out, I thought I should resign. I was thinking it over. Then I was determined when Mr. M. spoke to me and told me I would more or less be forced to resign.

Q. All these other things were just incidental, but they weren’t compelling reasons?

A. Absolutely not." (S.M. 27)

On January 31, 1944 claimant was referred by the United States Employment Service to a job as switchboard operator and clerk. Claimant reported to the prospective employer but she was not hired because she did not have enough experience. On February 2, 1944 claimant was referred to a job as a typist paying from $20 to $25 a week depending on the skill of the applicant in an accountant’s office in New Rochelle. Claimant refused the referral because she lacked a sufficient amount of experience as a typist. On February 16, 1944 claimant was referred to a job as a switchboard operator paying from $22 to $24 a week at a country club in New Rochelle. Claimant refused to accept this referral because she is too nervous to work at a switchboard. On February 23, 1944 claimant was referred to a job as general clerk paying $100 a month in an establishment at Tuckahoe. Claimant refused to accept this referral because she was unwilling to work outside of New Rochelle and because the climate in Mt. Vernon is damp. She admitted she was seeking employment in Pelham and was awaiting word momentarily relative to an application for a job there. On February 18, 1944 the local office issued an initial determination holding that claimant voluntarily left her employment without good cause and under circumstances indicating a withdrawal from the labor market. On the same date it issued another determination holding that claimant, without good cause, refused to accept a referral to employment on February 16, 1944. On March 6, 1944 the local office issued another determination holding that claimant, without good cause, refused to accept two referrals to employment on February 23, 1944.

Appeal Board Opinion: The referee held that claimant’s voluntary leaving was with good cause because claimant’s testimony that her health was adversely affected by the unfavorable working conditions in the plant is entitled to credence. The referee’s conclusion that this was the primary cause of claimant’s leaving lacks support in the record. Claimant’s testimony is that she resented the statements made by the personnel manager relative to her frequent absences from the plant and that she resigned because she felt that the treatment received from him was unwarranted. Upon her own admission this was the primary cause of her voluntary leaving and the other reasons enumerated by her were merely incidental thereto. Even if we accepted claimant’s primary reason for leaving that the personnel manager’s reprimand was unwarranted, it will not avail this claimant. We dealt with a somewhat similar situation in Appeal Board, 7464-42 in which we said:

"The general principles applicable to the instant facts are very aptly summarized in a paper entitled ‘Issues Involved in Decisions of Disputed Claims for Unemployment Benefits,’ reprinted from the Social Security Year Book, 1940, prepared by the Social Security Board of the Federal Security Agency:

‘ * * * A claimant who leaves because of a reprimand is usually considered not to have good cause for so doing, especially if the reprimand is deserved and reasonable; however, when the reprimand is extreme or unwarranted, good cause is often found. Thus, a New Jersey case (Benefit Series, 3042-N.J.A.) held that a claimant who left because he became discouraged by adverse comments of the employer had good cause for leaving when the criticism was not constructive. On the other hand, in a Rhode Island case (Benefit Series, 1812-R.I.A.) a claimant was found not to have good cause for leaving when, although the employer was hard to get along with and did not use the best language in delivering his frequent reprimands, the claimant’s trouble was due to her own conduct and failure to meet the requirements of the job.’"

The personnel manager’s admonition to claimant to improve her attendance record cannot be regarded either as a reprimand or as an invitation to resign. The personnel manager merely carried out the established policy of the company in dealing with employees who absented themselves frequently from work. The direct cause of claimant’s voluntary leaving was her own arbitrary act and did not constitute good cause within the meaning of the Law.

Decision: Initial determination disqualifying claimant for voluntary leaving of employment without good cause is sustained. The decision of the referee is reversed. (7/31/44)"

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