Michels, Crane and Morgan. The opinion of the court was delivered by Michels, J.A.D.
[132 NJSuper Page 331] Angel Acevedo Gonzalez (claimant) appeals from a decision of the Board of Review, in the Division
of Employment Security, Department of Labor and Industry, affirming a decision of the Appeal Tribunal holding claimant ineligible for unemployment compensation benefits.
Claimant was employed by Bell Laboratories in Hanover Township, Morris County, New Jersey, until November 18, 1972, when his employment was terminated. Sometime thereafter he left Morris County and returned to his home in Aguada, Puerto Rico. He filed a claim for benefits under the New Jersey Unemployment Compensation Law through the Interstate Claims Office in Puerto Rico, in accordance with the uniform interstate procedure for processing out-of-state claims. According to an official report submitted by the Bureau of Employment Security of the Puerto Rican Commonwealth Department of Labor to the United States Department of Labor, the unemployment rate in Aguada, Puerto Rico, at the time claimant moved there in November 1972, was 30.5%. The unemployment rate for Morris County at the same time was only 4.9%. The Interstate Claims Section in the New Jersey Division of Unemployment and Disability Insurance denied the claim on the ground that claimant rendered himself unavailable for work under the Unemployment Compensation Law. Claimant appealed that determination to the Appeal Tribunal.
The Appeal Tribunal, after a de novo hearing, affirmed the determination of the Interstate Claims Section, holding that "Claimant moved from an area where he had been employed and earned his wage credits to another area of considerably higher unemployment where his prospects of obtaining work were greatly reduced. By doing so he, in effect, made himself unavailable for work. Therefore, he is ineligible for unemployment compensation benefits * * *." Claimant appealed to the Board of Review, which affirmed the decision of the Appeal Tribunal on the record below. Claimant then appealed to this court. He contends that the Unemployment Compensation Law is being applied in a discriminatory manner against him and all those persons similarly situated who
move to Puerto Rico, and, as so applied, is unconstitutional and violative of his civil rights.
The Division of Employment Security adopted a policy regarding the eligibility of interstate claimants, effective July 1, 1972, of denying unemployment benefits to claimants who move to an area of persistently high unemployment, on the ground that such claimants had voluntarily reduced their prospects of finding employment by restricting their availability to an extremely limited number of job opportunities. The Division, in an effort to provide some concrete guidelines in the administration of this policy, issued an adminstrative instruction (UMI-415) to the Interstate Claims Section, directing it to apply the policy "to any interstate claimant who moves to or near a major labor market area designated by the U.S. Department of Labor as an area of persistent unemployment which had had an unemployment rate of 12% or more for three or more consecutive months."*fn1 See Vasquez v. Bd. of Review, 127 N.J. Super. 431, 433-434 (App. Div. 1974).
Claimant merely cites Galvan v. Levine, 345 F. Supp. 67 (S.D.N.Y. 1972), aff'd 490 F. 2d 1255 (2 Cir. 1973), cert. den. 417 U.S. 936, 94 S. Ct. 2652, 41 L. Ed. 2d 240 (1974), to support his bare charge of discrimination in the application of the New Jersey Unemployment Compensation Law. Our reading of the decisions in this case as well as the companion case of Galvan v. Catherwood, 324 F. Supp. 1016 (S.D.N.Y. 1971), aff'd sub nom. Galvan v. Levine, 490 F. 2 d 1255, supra, convinces us that his reliance thereon is unfounded and does not support his attack upon the Law.
In the Galvan cases, supra, claimants challenged the constitutionality of New York Labor Law § 591 subd. 2, McKinney's Consol. Laws, c. 31, denying unemployment benefits
to a person "not ready, willing and able to work in his usual employment or in any other for which he is reasonably fitted by training and experience" as applied by the Industrial Commissioner of New York. The Commissioner had adopted a policy of denying benefits to a claimant who had left the labor market area in which he was last employed and had moved his residence to another labor market area lacking reasonable employment opportunities for one with his training and experience. Later the Commissioner implemented the policy by ruling that except for persons with occupational skills for which there was a particular demand at their destination, removal to an area of "high persistent unemployment" would establish ineligibility as a matter of law. The Commissioner defined an area of "high persistent unemployment" as one having a current unemployment rate of 12% or more. The claimants argued, among other things, the so-called "Twelve Percent Rule" (1) violated their constitutionally guaranteed right to travel; (2) was arbitrary and vague and thus violative of the Due Process Clause of the United States Constitution and (3) was applied in an arbitrary manner by the Commissioner to Puerto Rico, in violation of the United States Constitution. The Commissioner moved to dismiss the complaint. The three-judge United States District Court for the Southern District of New York found no basic constitutional infirmity in the Twelve Percent Rule. The court was concerned, however, with the claim that the rule had been applied by the Commissioner only to persons who moved to Puerto Rico. Accordingly, it granted the Commissioner's motion "in all respects save for plaintiffs' claim of discriminatory application of New York's policy * * *," and set a hearing on this limited question.
In disposing in part of claimants' constitutional challenge the court, in Galvan v. Catherwood, 324 F. ...