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Cramer v. Employment Sec. Commission

Supreme Court of Arizona

January 10, 1962

Aurelio A. CRAMER, Appellant,

In Banc.

[90 Ariz. 351] George W. Oglesby, Nogales, for appellant.

Robert W. Pickrell, Atty. Gen., Richard J. Daniels, Asst. Atty. Gen., for appellee.

UDALL, Vice Chief Justice.

This is an appeal from a judgment of the Superior Court of Santa Cruz County affirming the Employment Security Commission's denial of unemployment benefits to claimant Aurelio Cramer for the period August 28th to October 2d, 1960 inclusive.

On June 15, 1960, claimant, then an unmarried 19-year-old youth living in Nogales, Arizona with his stepfather, William Cramer, was laid off for the summer months by his employer, the Citizens Utility Company of Nogales. On July 6, 1960, claimant filed for and thereafter received (effective July 3, 1960) unemployment benefits through the week ending August 28, 1960. After that date, however, it was determined that claimant was no longer 'available for work' [1] (and

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hence no longer 'eligible' for benefits) principally because of his conduct on August 31st and September 1st of 1960.

A representative of an employer, the Pena Blanca Dam, called upon R. W. Schiltz, manager of the Nogales State Unemployment Service, on August 31, 1960 and asked for a man to 'chop some weeds and clean up around the place at $1 an hour', such job to last a week to ten days. The representative desired to return to the Dam with the new man either late that afternoon or at 10 o'clock the next morning. Schiltz asked claimant's stepfather, who happened to be in the unemployment office on the afternoon of August 31, 1960, if he would inform claimant of the job opportunity and have him report to the office 'right away'.

The stepfather so informed claimant but not until after the unemployment office had closed for the day on August 31st. On the following morning (September 1, 1960) instead of reporting to the unemployment office claimant allegedly chose to interview (unsuccessfully) for a job with a local gas station. However, neither before the alleged 10 a. m. appointment at the gas station nor at any time on September 1, 1960, did claimant report to the unemployment[90 Ariz. 352] office. Such conduct on the part of the claimant led Schiltz to report the incident in a 'Statement Relating to Applicant's Availability for Work' and became the basis for a subsequent determination by Commission deputy E. J. Kerley that claimant was unavailable for work as of August 28, 1960. [2]

Kerley's decision of September 17, 1960 was affirmed by an Appeal Tribunal on November 1, 1960 after a full hearing on the matter on October 26, 1960. At the hearing claimant was questioned extensively regarding his efforts to secure work before and after the incident on August 31st and September 1st of 1960. He could relate but few job inquiries, and with respect to these he was often unable to remember the nature of the work or the location and names of the prospective employers involved. He testified that his failure to report to the unemployment office on September 1st was due to his belief that the job had been filled the previous afternoon. This testimony was controverted by that of the stepfather that he had asked claimant if he was going to check with the unemployment office on the morning of September 1st. And claimant acknowledged having signed a written statement in the presence of Schiltz to the effect that claimant did 'not have any reason for failing to report to the employment office' on September 1st.

The Appeal Tribunal's decision [3] was affirmed by the Commission on December 29, 1960 in the following language:

'In the instant case the evidence is that the claimant was unemployed for 2 1/2 months prior to the time the Employment Service notified his stepfather there was a possibility of a temporary job for him. In spite of this, he did not immediately attempt to contact the Employment Service even though the opportunity was available to him, but waited over one day before even investigating this possible job opportunity. This, in itself, is an indication that he was not sincerely interested in becoming re-employed. In addition, the number of work contacts he made during the period in question are extremely limited and he

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failed to report for a definite job opening for which he had been accepted[90 Ariz. 353] in Fort Huachuca. We therefore find that the claimant was unavailable for work from August 28, 1960, through October 2, 1960.' [4]

Affirmance without opinion by the Superior Court followed on July 1, 1961.

Availability is an eligibility requirement found in the unemployment compensation law of every state. Although it has never been and probably cannot be precisely defined, Mohler v. Department of Labor,409 Ill. 79, 83, 97 N.E.2d 762, 764, 24 A.L.R.2d 1393 (1951), it 'is said to be satisfied when an individual is willing, able, and ready to accept suitable work which he does not have good cause to refuse, that is, when he is genuinely attached to the labor market.' Freeman, Able to Work and Available for Work, 55 Yale L.J. 123, 124 (1945); Beaman v. Safeway Stores,78 Ariz. 195, 200, 277 P.2d 1010, 1013 (1954). There being no hard and fast rule as to when a claimant is ...

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