Opinion
Nos. 30954 and 30955
Decided December 17, 1947.
Unemployment Compensation Act — Right to benefits not lost by refusal to accept referral, when — Section 1345-6 e (4), General Code — Less favorable similar work conditions relates to referral work — Worker available for work, when — Section 1345-6, General Code — State or employer not required to furnish transportation, when — Claimant residing in nonindustrial village, not available for work — Claimant refused referral to work in industrial city and lacked transportation.
1. The provision in Section 1345-6 e (4), General Code, that "no individual otherwise qualified to receive benefits shall lose the right to benefits by reason of a refusal to accept new work if * * * the remuneration, hours, or other conditions of the work offered are substantially less favorable than those prevailing for similar work in the locality," refers to work similar to that to which a claimant for unemployment benefits has been referred, and not to work similar to that which he had been performing before losing the work the loss of which made him unemployed.
2. To be "available for work," within the meaning of Section 1345-6, General Code, a person must be available for work in a community where work is available.
3. In the absence of contract or custom, it is not incumbent upon either the state or an employer to furnish transportation to the employee provided that the available work is not at an unreasonable distance from the residence of the employee, having regard to the character of work he has been accustomed to do and travel to the place of work does not involve expense greater than that required for his former work.
4. A claimant for unemployment compensation, residing in a nonindustrial village, who, after two years of employment in an industrial city some miles distant during which she had arranged for transportation, lost such employment and transportation, is not available for work, where she refuses a referral to work in such city in which she established unemployment credits, on the ground that she lacked transportation, and where there is no evidence that she is not fitted for the referral employment or that the remuneration, hours or other conditions of such employment are substantially less favorable than those prevailing for similar work in the locality.
APPEALS from the Court of Appeals for Lucas county.
Since these two cases are so alike in their facts and the same principles of law govern both of them, they are decided together.
The records show that both claimants for unemployment compensation, appellees herein, at all times herein discussed resided and still reside at Walbridge, Ohio, which is about three and one-half to four miles from the city limits of Toledo and about ten miles from the downtown section of that city. Walbridge is a village with a population of about 1,000.
The husband of claimant Kontner is a switchman for the Chesapeake Ohio Railway Company, and the husband of claimant Vasko works for Libbey-Owens-Ford Glass Company in Toledo. Both claimants worked for Libbey-Owens-Ford in Toledo from 1943 — Kontner to May 29, 1945, and Vasco to June 6, 1945 — both did assembly work in war production and both were laid off because of lack of work.
While claimants were working for Libbey-Owens-Ford they had transportation to and from their work — Kontner in an automobile with her neighbors when her husband needed the family car, and Vasko with her sisters.
On June 7 and 22, respectively, 1945, at Toledo, Kontner and Vasco filed their claims for unemployment compensation.
On June 21, 1945, Kontner rejected a referral to employment with the Save Electric Corporation at 50 cents an hour, for the reasons that her home at Walbridge was about five and one-half miles from such company; that in order to get to work at 4:30 p. m. on the shift offered her, she would have to leave around 3:15 p. m.; that she would have no transportation back home until 6:15 a. m., unless she hired a cab which would cost her $1.50; that there were no industries or work opportunities in Walbridge, and that the Libbey-Owens-Ford Glass Company was about the only place she was able to work because a number of her neighbors worked there, whereas there was no transportation to other places.
On June 22, and July 8, respectively, 1945, Vasko was offered referrals to employment in Toledo at the New Way Laundry and the Quality Laundry, but she did not investigate such work because of lack of transportation. There was evidence in the record that she was also offered a referral to the Libbey Glass Company. Vasko denied such an offer. She testified she would not have accepted had the offer been made to her because she did not have transportation.
Upon these states of fact the claims of both claimants were disallowed by the administrator and both appealed to the Unemployment Compensation Board of Review. When the claims came on for hearing before a referee, the decisions of the administrator were affirmed and claimants thereafter applied to the board of review for leaves to institute further appeals from the decisions of the referee. In both cases the applications were disallowed.
Thereupon each claimant appealed to the Common Pleas Court of Lucas county and in each appeal the court held that the decision of the administrator, affirmed by the referee and the board of review, was unlawful, unreasonable and against the manifest weight of the evidence, reversed the decisions of the administrator, referee and board of review, and ordered that the claimant be paid benefits according to law.
The board of review, appellant herein, appealed from both judgments of the Common Pleas Court to the Court of Appeals where the judgments were affirmed.
Thereupon the board of review perfected appeals to this court, motions to certify the records of the Court of Appeals having been allowed.
Mr. Virgil E. Clark, for appellees.
Mr. Hugh S. Jenkins, attorney general, and Mr. John M. Woy, for appellant Unemployment Compensation Board of Review.
The unemployment-compensation statutes are Sections 1345-1 to 1346-5, inclusive, General Code. No question is made in these cases that claimants failed to comply with all the procedural requirements with reference to their claims for unemployment compensation. The decisions of the administrator, the referee and the board of review were based on the proposition that neither claimant was available for work within the meaning of the law, and the solution of that question must govern our decisions.
Neither the Common Pleas Court nor the Court of Appeals wrote opinions in these cases so we do not have the benefit of their reasoning.
The law which is applicable to these cases is found in Section 1345-6, General Code, which in part is as follows:
"a. No individual shall be entitled to any benefits unless he or she
* * * * *
"(4) is able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted; and
"(5) is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted including employments not subject to this act.
* * * * *
"d. Notwithstanding the provisions of subsection (a) of this section, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual:
* * * * *
"(2) has refused to accept an offer of work for which he is reasonably fitted * * *;
* * * * *
"e. No individual otherwise qualified to receive benefits shall lose the right to benefits by reason of a refusal to accept new work if:
* * * * *
"(3) The work is at an unreasonable distance from his residence, having regard to the character of the work he has been accustomed to do, and travel to the place of work involves expenses substantially greater than that required for his former work, unless. the expense be provided for; or
"(4) The remuneration, hours, or other conditions. of the work offered are substantially less favorable than those prevailing for similar work in the locality."
There is no dispute in these cases that both claimants were referred to work shortly after filing their claims for unemployment compensation. The only reason that either of them gave for declining the referral was the lack of adequate transportation. The board of review maintains that, since these referrals were declined, claimants are not available for work and, therefore, are not entitled to unemployment benefits. On the other hand, claimants maintain they were justified in refusing the referrals for the reason that the work to which they were referred was unreasonable distances from their residences, having regard to the character of the work they had been accustomed to perform, and that travel to the places of work involved expenses substantially greater than those required for their former work. They maintain further that the remuneration, hours, and other conditions of work offered them were substantially less favorable than those prevailing for similar work in the locality.
When claimants were working at a war plant in Toledo, they had arrangements for transportation which enabled them to expeditiously go to and from their work and, concededly, they received much larger hourly compensation than was offered them in the new employment to which they were referred. After the war work they were doing ceased, the transportation arrangements likewise came to an end, and it is argued that, due to the nature of the bus service between Walbridge and Toledo, it would require Kontner to spend more than five and one-half hours each day in travel time to and from the referral job, and that Vasko would have to spend two and one-half hours travel each way.
It is maintained by claimants that the board of review has consistently held that one and one-half hours is not an unreasonable time to travel to work, but beyond that, for the ordinary case, it is considered to be unreasonable, and that, therefore, the referral work is at unreasonable distances from the residences of claimants and travel to the places of work involves expenses substantially greater than that required for former work. They also maintain that, because the referral work paid less per hour and differed from their former work, the referral work was substantially less favorable as to the remuneration, hours and other conditions than similar work in the locality.
In deciding the merits of the contentions of the board and of the claimants, certain facts must be taken into consideration. Claimants at all times concerned have resided in Walbridge, which is a small village without opportunity for industrial work. They worked on war jobs in Toledo where their unemployment credits were established. They made provisions for their own transportation, but when they lost their employment, they lost their transportation. They now maintain that because of lack of transportation they were justified in refusing referrals to work in the same city where they formerly worked. If they had been working in Walbridge, had been separated from their employment and had then been referred to work in Toledo, which they could not accept because of lack of transportation, there would be merit in their claims that they come under Section 1345-6 e (3), General Code, but such is not the case.
Claimants had been working in Toledo about two years, had provided for their own transportation from a nonindustrial community, had built up their unemployment credits in Toledo, and now refuse referral work there because of the transportation problem. Are their positions justified? We think not.
There is no obligation upon either the Bureau of Unemployment Compensation or an employer to furnish transportation in the absence, as there is in this case, of an agreement or custom to do so. If a person resides in a nonindustrial area and has no means of transportation to an industrial area, he cannot be said to be in the labor market, and the unemployment compensation fund has not been built up for his benefit. The purpose of the act is to build up a fund to benefit workingmen and their families who, because of adverse business and industrial conditions. which cause unemployment, need temporary economic relief. See Baker v. Powhatan Mining Co., 146 Ohio St. 600, 67 N.E.2d 714.
When, therefore, a person has been working in an industrial city while residing in a nonindustrial village and furnished his own transportation, and thereafter loses his job and cannot take another in that same industrial city because he has also lost his transportation, it would seem obvious that he is not "available for work" when he refuses a referral to employment in the industrial city where he formerly worked.
The Supreme Court of Oklahoma has held that "where there is no duty resting upon the employer, from custom or contract, expressed or implied, to furnish means of transportation to his employee to and from work, the burden is cast upon the employee to provide himself with such transportation. When he has this burden and is unable to provide himself with such transportation, even through no fault of his own, he is not available for work." See Copeland v. Oklahoma Employment Security Comm., 197 Okla. 429, 172 P.2d 420, and Jacobs v. Office of Unemployment Compensation Placement, _____ Wash., _____, 179 P.2d 707.
Claimants maintain that the remuneration, hours or other conditions of work offered were substantially less than those prevailing for similar work in the locality, and that, therefore, they were justified in refusing the referrals. Their arguments are that they were earning 90 cents per hour while employed by the Libbey-Owens-Ford Glass Company as assemblers for war work, and that the employment to which Kontner was referred paid but 53 cents per hour as assembler, while Vasko was referred to employment as a presser in a laundry paying between 50 and 60 cents per hour.
It is true that the referral work paid considerably less than the former work of claimants, but the statute does not require the remuneration, hours or other conditions of work to be as favorable as the former work in order to justify a refusal of a referral. The remuneration, hours or other conditions of work offered are not to be substantially less favorable than those prevailing for similar work in the locality, that is, work similar to that which is offered.
Although it is argued in claimants' brief that the remuneration is less than the prevailing rates for similar work in Toledo, there is not a word of evidence in the records to substantiate that, and this court is bound by what is contained in the records. We cannot take judicial notice of rates of remuneration, hours, or other conditions of work. The burden of proof to establish a claimant's rights to benefits under the unemployment compensation law rests upon the claimant. Jacobs v. Office of Unemployment Compensation Placement, supra.
In the absence of any evidence in the records that the remuneration, hours or other conditions of the work to which claimants were referred were not substantially less favorable than those prevailing for similar work in the locality, and in the absence of any evidence that claimants were not reasonably fitted for the referral employment, we must hold that the contentions of claimants with reference to these matters are not sustained.
Although no claimant for unemployment benefits should be denied them if by the provisions of the law such benefits can be granted, yet, unless a claimant comes within the provisions of the law, he must not be allowed to dissipate the fund and prostitute the beneficent purposes for which it was established, namely, compensation to a working man or woman who has lost his work and cannot secure other.
This court, in the case of Leonard v. Unemployment Compensation Board of Review, ante, 419, held that under the Ohio Unemployment Compensation Act there is no hard and fast rule as to what constitutes availability for work, and that availability under the act depends in part on the facts and circumstances in each case. In the Leonard case, the court held that the claimant therein, although she had moved approximately 25 miles from Toledo after being separated from her work there, was entitled to unemployment compensation, but in that case claimant had arranged for adequate transportation facilities from her home to Toledo, enabling her to work from 8:30 a. m. to 5:00 p. m.
A fact of the utmost importance, which distinguishes the Leonard case from the present cases, is that it was not established that Claimant Leonard had ever received a referral or offer of work and so it could not be known whether she would have refused a referral.
For the reasons given, the judgments of the Court of Appeals are reversed, and the decisions of the Unemployment Compensation Board of Review are affirmed.
Judgments reversed.
WEYGANDT, C.J., TURNER, MATTHIAS and HART, JJ., concur.
SOHNGEN, J., dissents.
ZIMMERMAN, J., not participating.