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Tung-Sol Electric v. Board of Review

Decided: May 23, 1955.

TUNG-SOL ELECTRIC INC., APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, AND GENEVIEVE COSME, RESPONDENTS



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

The reargument of this case presents two questions not dealt with in our earlier opinion, 34 N.J. Super. 349 (App. Div. 1955): first, whether the claimant here rendered herself ineligible for unemployment compensation because she limited her availability for work (N.J.S.A. 43:21-4(c)) to a second shift, namely, from 3:30 P.M. until midnight; and, second, assuming nevertheless that she was eligible when first discharged, must she, in order to entitle herself to continuing benefits after being unemployed for some months, make herself available for work on other shifts.

The claimant, Mrs. Genevieve Cosme, had worked for appellant, Tung-Sol Electric Inc. from 5:45 to 11:45 P.M. for a year and a half prior to November 23, 1953 when she was laid off. She then made herself "available for work" (N.J.S.A. 43:21-4(c)) on the entire eight and one-half hours of the second shift, but refused to extend her availability further, claiming she had to care for her three young (they were so described in the Appeal Tribunal's findings) children during the day. It is important to note that at the times in question and within the applicable area, there was (Tung-Sol so agreed on the argument) a labor market for female workers, such as claimant, seeking employment on the full-time second shift. We pass over (since Tung-Sol in its brief makes no point of the matter) that at one time claimant said she wanted work "within one bus ride and not more than 1/2 hour ride from home," and would not take less than $1.20 an hour.

The Board of Review held claimant was entitled to benefits from December 15, 1953 -- when the Director had, by order applicable here, dispensed with the requirement of "actively seeking work" (N.J.S.A. 43:21-4(c)) -- to May 17, 1954, when Tung-Sol took her back in its employ on the full-time second shift. Tung-Sol appeals. It failed to appear before the Board, and we might on that account perhaps dismiss its appeal. Walter v. Keuthe , 98 N.J.L. 823 (E. &

A. 1923); cf. N.J.S.A. 43:21-6(h). However, we go on to the merits.

The question first stated -- whether claimant may limit her availability to the second shift -- turns on the significance to be put upon the statutory words (N.J.S.A. 43:21-4):

"An unemployed individual shall be eligible to receive benefits with respect to any week only if it appears that:

(c) He * * * is available for work * * *."

It is held in most jurisdictions which have dealt with the matter (or with analogous problems) that a female worker may not limit her availability to a certain shift or period of time because she must care for her children at other times. Leclerc v. Administrator, Unemployment Compensation Act , 137 Conn. 438, 78 A. 2 d 550 (Sup. Ct. Err. 1951); Ford Motor Co. v. Appeal Board of Michigan Unemployment Compensation Comm. , 316 Mich. 468, 25 N.W. 2 d 586 (Sup. Ct. 1947); Swanson v. Minneapolis-Honeywell Regulator Co. , 240 Minn. 449, 61 N.W. 2 d 526 (Sup. Ct. 1953); Haynes v. Unemployment Compensation Comm. , 353 Mo. 540, 183 S.W. 2 d 77 (Sup. Ct. 1944); Jacobs v. Office of Unemployment Compensation and Placement , 27 Wash. 2 d 641, 179 P. 2 d 707 (Sup. Ct. 1947). Cf. Robinson v. Maryland Employment Security Board , 202 Md. 515, 97 A. 2 d 300 (Ct. App. 1953); Unemployment Compensation Comm. v. Tomko , 192 Va. 463, 65 S.E. 2 d 524 (Sup. Ct. 1951).

There are authorities to the contrary. Mee's Bakery v. Unemployment Compensation Board of Review , 162 Pa. Super. 183, 56 A. 2 d 386 (Super. Ct. 1948); Erie Resistor Corp. v. Unemployment Compensation Board of Review , 172 Pa. Super. 430, 94 A. 2 d 367 (Super. Ct. 1953); cf. Swenson v. Michigan Employment Security Comm. , 340 Mich. 430, 65 N.W. 2 d 709 (Sup. Ct. 1954); Roukey v. Riley , 96 N.H. 351, 77 A. 2 d 30, 32 (Sup. Ct. 1950); Leonard v. Unemployment Compensation Board of Review , 148 Ohio St. 419, 75 N.E. 2 d 567 (Sup. Ct. 1947) (cf. Beall v. Bureau of Unemployment Compensation , 101 N.E. 2 d 780

(Ohio App. 1951)); Shay v. Unemployment Compensation Board of Review , 177 Pa. Super. 294, 111 A. 2 d 174 (Super. Ct. 1955). In accord, see Altman and Lewis, Limited Availability For Shift Employment , 22 No. Car. L. Rev. 189 (1944), 28 Minn. L. Rev. 387 (1944); Menard , 55 Yale L.J. 134, 147 (1945); Note, 10 Ohio L.J. ...


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