In re Thomas , 13 N.C. App. 513 ( 1972 )

HEDRICK, Judge.

Claimant concedes that the Commission’s findings, material to our decision, are supported by competent evidence in the record. With the exception of the conclusion that claimant is not available for work within the meaning of the law, the findings and conclusions of the Commission will support an order that claimant is eligible for benefits from 4 November 1970 through 19 January 1971. Thus, the one question presented on this appeal is whether the conclusion made by the Commission that claimant is not available for work within the meaning of the law is supported by the findings of fact.

The law referred to is G.S. 96-13 which, in pertinent part, provides:

“An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that—

(3) He is able to work, and is available for work: Provided that no individual shall be deemed available for work unless he establishes to the satisfaction of the Commission that he is actively seeking work. ...”

In In re Watson, 273 N.C. 629, 161 S.E. 2d 1 (1968), Justice Lake, speaking for the North Carolina Supreme Court, said, “The terms ‘able to work’, ‘available for work’ and ‘suitable employment’ are not precise terms capable of application with mathematical precision.” Neither the Legislature nor the North Carolina Supreme Court has formulated an all-embracing rule or test for determining what constitutes being “available for work.”

In concluding that the claimant was not available for work within the meaning of the law, the Commission formulated and used its own test of availability for “voluntary retirees.” Although the claimant might be classified a “voluntary retiree,” such a test as formulated by the Commission has no application in the present case because there is nothing in the Employment Security Law relating to “voluntary retirees.” In its Decision, the Commission reasoned:

“ . . . [I] t has not been established that she is available for work within the meaning of the law, because it does not appear that she had a reasonable chance of obtaining employment within her locality because of her advanced age, lack of skills, and limited education.

Considering the fact that the claimant voluntarily relinquished her employment to retire when she could have continued working, it is concluded that the claimant is not realistically an active member of the labor force.”

In 55 Yale L.J. 123, we find the following:

“The availability requirement 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. Since under unemployment compensation laws, it is the availability of an individual that is required to be tested, the labor market must be described in terms of the individual. A labor market for an individual exists when there is a market for the type of services which he offers in the geographical area in which he offers them. ‘Market’ in this sense does not mean that job vacancies must exist; the purpose of unemployment compensation is to compensate for the lack of appropriate job vacancies. It means only that the type of services which an individual is offering is generally performed in the geographical area in which he is offering them.”

We think the Commission’s findings of fact will support a conclusion that a “labor market” exists in the Winston-Salem area for the type of service which the claimant has to offer, and that the claimant is “genuinely attached to the labor market.” There is no finding that the type of service which the claimant is offering is not being generally performed in the Winston-Salem area. On the contrary, we think it could be fairly concluded from the findings of fact that laundry and domestic work is being performed in the Winston-Salem area at all times.

In Krauss v. A & M Karagheusian, Inc., 13 N.J. 447, 100 A. 2d 277 (1953), we find the following statement: “The practice of some employers not to hire applicants above certain ages irrespective of their capacity and willingness to do the work the employer has to offer is a voluntary standard and is not embraced in any legal prohibition.” Therefore, the fact that employers in Winston-Salem do not customarily employ persons seventy years of age is of no legal significance in determining whether a labor market exists for the type of services a claimant has to offer.

Although the circumstances of the claimant’s work separation are to be considered in determining whether he is available for work and genuinely attached to the labor market, Krauss v. A & M Karagheusian, Inc., supra, we do not think that the fact that she voluntarily retired is alone sufficient to support a conclusion that the claimant is “not realistically an active member of the labor force.” The record in the present case clearly shows that the claimant was disqualified from receiving benefits for more than the maximum period (twelve weeks), because she voluntarily left her employment with Dy-Dee Supply Co. without good cause attributable to the employer. G.S. 96-14(1). The fact that the claimant sought work each week at several laundries, churches, motels, and other businesses while filing claims will support a conclusion that the claimant was actively seeking work and was “genuinely attached to the labor market.”

We think what was said in Claim of Bourne, 282 App. Div. 1, 122 N.Y.S. 2d 25 (App. Div. 1953), is appropriate:

“It is a matter of growing importance to the community to continue to utilize the skills and experience of its older people; and as the life span expands the problem becomes progressively more pressing. The Unemployment Insurance Law is intended to protect and continue the working activity of all members of the community.

It is not merely for the protection of young workers but also of workers of advanced years who remain in the labor market. We take unusual care in this decision not to suggest or to imply that age alone necessarily results in nonavailability in the labor market. Availability is the statutory test; but it must be applied individually to the facts of each case as the administrator sees them.

Age, linked to a lack of physical or mental capacity to work, or age coupled with restrictions which cut down greatly the possibility of employment, may fairly result in a finding of non-availability. But an able aged man is an available man if he has remaining abilities that can be sold on the market.”

We think the Commission’s conclusion that the claimant is not available for work is erroneous and not supported by the facts found, for it is clear from the decision of the Commission that its conclusion was based on the fact that the claimant is a seventy-year-old woman with a fifth-grade education and limited skills. We think the facts found by the Commission compel the conclusion that a labor market exists in the Winston-Salem area for the type of service the claimant has to offer and that she is genuinely attached to the labor market, and that she is available for work within the meaning of G.S. 96-13.

For the reasons stated, the judgment of the superior court affirming the decision of the Employment Security Commission is reversed and the case is remanded to the superior court for the entry of an order remanding the proceeding to the Employment Security Commission with directions that the Commission make a conclusion with respect to whether the claimant was available for work from 4 November 1970 through 19 January 1971, based on the facts already found and not inconsistent with the principles expressed in this opinion.

Reversed and remanded.

Chief Judge Mallard and Judge Graham concur in part and dissent in part.