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Breskin v. Board of Review

Decided: September 20, 1957.

HENRIETTA V. BRESKIN, APPELLANT,
v.
BOARD OF REVIEW, DIVISION OF EMPLOYMENT SECURITY, DEPARTMENT OF LABOR AND INDUSTRY, STATE OF NEW JERSEY, RESPONDENT



Freund, Cafiero and Artaserse. The opinion of the court was delivered by Artaserse, J.s.c. (temporarily assigned).

Artaserse

This is an appeal from a decision of the Board of Review, Division of Employment Security, Department of Labor and Industry, State of New Jersey, holding appellant to be ineligible for employment benefits for failure to comply with the provisions of N.J.S.A. 43:21-4(c) which required her to demonstrate that during the period of her unemployment she was "actively seeking work."

Appellant was employed by L. Bamberger & Company as a store detective from September 1953 until June 9, 1956. She worked in the company's department store in Newark until October 1955, when she was directed to divide her time among the company's stores in Newark, Plainfield and Morristown. At first she was required to work only a few days every six weeks at the Plainfield and Morristown stores. Later she was directed to rotate her working time equally

among these three stores -- one week at each. Appellant lived in Elizabeth and when working in the Plainfield and Morristown stores she was paid her transportation for any mileage in excess of that to the Newark store, but had to travel on her own time. According to her testimony, she disliked going to work at the suburban stores and wanted to work only at the Newark store. She further testified that the inactivity of the work in the suburban stores caused her to sustain nervous tension for which she received medical treatment. A letter dated September 13, 1956 from her treating physician discloses that she was under treatment for neurosis attributable to her employment activities, but states that she was capable of working in the future in a less emotional field. However, prior to June 1, 1956, at her doctor's advice, she sought a leave of absence and upon its denial gave notice she would leave her employment on June 30, 1956. She also asked that until such date she be relieved from working in the suburban stores, whereupon her employer suggested that she leave on June 9, 1956, which she did.

She filed an unemployment claim on June 26, 1956, reporting regularly, but no benefits were paid. From the date she terminated her employment until October 2 she had made only six applications for work, each of which was in the capacity of a hotel hostess, at which she had once been employed. Three were at hotels in Asbury Park, the names of which she did not recall; another in a designated hotel in Manasquan; another at a designated restaurant in Elizabeth, and another at a designated hotel in Elizabeth. Upon her request in the latter part of September she was given aptitude tests and counseling. Immediately thereafter she diligently sought factory work as a trainee and secured a job in that capacity starting October 12.

The deputy of the Division of Employment Security found appellant to be disqualified for unemployment benefits for having voluntarily left her employment without good cause. On appeal the Appeal Tribunal modified the deputy's ruling, holding that the appellant had good cause to leave her employment

but her subsequent failure to actively seek work rendered her ineligible to receive unemployment benefits. This latter ruling was affirmed by the Board of Review, but benefits were allowed after October 2, 1956, when appellant became active in seeking employment until October 8, 1956, after which date she ceased to report. From the disallowance of unemployment benefits between June 26 and October 2, appellant appeals.

While the objective of the unemployment compensation law is to protect against "involuntary unemployment" R.S. 43:21-2, the mere fact that employment is terminated at the instance of the employee, rather than his employer, does not ipso facto preclude relief under this law. As stated in Krauss v. A. & M. Karagheusian, Inc. , 13 N.J. 447, 464 (1953):

"The Legislature contemplated that when an individual voluntarily leaves [his] job under the pressure of circumstances which may reasonably be viewed as having compelled him to do so, the termination of his employment is involuntary for the purposes of the act."

See also Campbell Soup Co. v. Board of Review, Division of Employment Security , 13 N.J. 431, 435 (1953); Board of Review, etc. v. Kearfott Mfg. Corp. , 46 N.J. Super. 39, 45 (App. Div. 1957). Both the Appeal Tribunal and the Board of Review found that the state of appellant's health presented circumstances compelling the surrender of her position. See Annotation , 14 A.L.R. 2 d 1308; and Annotation , 158 A.L.R. 396, supplemented in 165 A.L.R. 1382. This finding is adequately supported by the evidence and, hence, should not be disturbed.

Turning to the more important question of appellant's endeavors to locate work as affecting her eligibility for unemployment benefits, we find that prior to 1948 the act provided that "An individual * * * shall be eligible to receive benefits * * * only if it appears that: * * * (c) He is able to work, is available for work." R.S. 43:21-4 (c); Muraski v. ...


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