In re Matyevich , 15 A.D.2d 387 ( 1962 )

Coon, J.

Claimant had been a pipe coverer, a trade which consists of applying asbestos material around metal pipes, for 20 years. About half of that time he was in employment in various shipyards, and the other half was in the building and construction industry. During his base period necessary to qualify for benefits claimant worked at a shipyard operated by the United States Government. The prevailing wage for pipe coverers in the building and construction industry in the same locality and during the same period was $4.20 per hour. In the marine industry it was $2.75 per hour. It is a fair inference from the record that the reason for this disparity is that in the building construction industry the demand for pipe coverers is seasonal and spasdomic and at times the demand is very heavy, while in the marine industry it is steady and continuous. The Appeal Board has treated them as separate industries, and held that only the prevailing wage in the marine industry may be considered. The fact remains, however, that substantially the same skill is required in both, and that the claimant is qualified to work in either ‘ ‘ industry ’ ’.

The pertinent part of the statute (Labor Law, § 593, subd. 2), provides: “ No refusal to accept employment shall be deemed without good cause nor shall it disqualify any claimant otherwise eligible to receive benefits if * * # (d) the wages or compensation or hours or conditions offered are substantially less favorable to the claimant than those prevailing for similar work in the locality ”.

Claimant has refused re-employment in the shipbuilding industry at $2.64 per hour, substantially the prevailing wage in that industry, contending that the wages offered were substantially less than those being paid for the same skills in the building and construction industry in the same locality.

The Commissioner, the Referee and the Appeal Board have all held that the refusal was unjustified. The rationale of the Appeal Board decision is that there were two separate industries — the shipbuilding industry and the building and construction industry—and that the prevailing wage in one has nothing to do with the other. We do not think such an interpretation is unreasonable, under the circumstances of this case, although the statute does not mention industries but refers only to wages prevailing for “ similar work in the locality ”.

But the case need not turn upon that distinction alone. We think “ similar work ” should be related to the job offered—in this case in a shipyard. The job offered was one for which claimant was qualified by training and experience. The wages offered were substantially the wage prevailing in the job offered. In those circumstances claimant is not justified in refusing the job because it pays less than a job which is not available for which claimant’s skill might qualify him if such a job were available. (Matter of Shotkin [Catherwood], 10 A D 2d 738.)

Moreover, to permit a claimant to be that selective in refusing a job offer would do violence to the intent, purpose and very foundation of the Unemployment Insurance Law. The law was designed to alleviate the hardship of those totally and involuntarily unemployed through no fault of their own. (Labor Law, § 501.) The law was not intended to regulate wages nor to assist a person for whom suitable employment is available at $2.64 per hour who refuses the job because some other job, not available, has a higher wage scale. If a claimant could be that selective, the whole underlying purpose of the Unemployment Insurance Law collapses. (Matter of Sellers [J. W. Mays, Inc.], 13 A D 2d 204.)

The decision of the Unemployment Insurance Appeal Board, should be affirmed, without costs.