In re Beatty , 22 N.C. App. 563 ( 1974 )

CARSON, Judge.

Benefits were denied the claimants pursuant to the provisions of G.S. 96-13(3). It provides:

Section 96-13. Benefit eligibility conditions. — 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.

The question before us is whether the claimants are able to work and are available for work. Our Supreme Court in the case of In re Watson, 273 N.C. 629, 161 S.E. 2d 1 (1968), at pages 633-634 describes these phrases as follows:

The term “able to work,” “available for work” and “suitable employment” are not precise terms capable of application with mathematical precision. They are somewhat akin to the terms “reasonable man” and “due care,” which continue to defy the best effort of both the lexicographer and the professor of torts to define them satisfactorily and yet are applied with considerable success each day by juries through the application of common sense and experience. A large measure of administrative discretion must be granted to the Employment Security Commission in the application of these terms in the statute to specific cases.

The Employment Security Commission, applying its discretion, found that the GAI plan effectively removed the longshoremen from the labor market. We do not feel that it abused its discretion in so ruling. While the claimants need not be available at all hours to be “available,” the GAI plan requires their presence every week day morning between the indicated hours. The finding by the Commission that the temporary construction employment must commence at 8:00 a.m. was not the subject of an exception, and is thus binding on us on appeal. Nationwide Homes v. Trust Co., 267 N.C. 528, 148 S.E. 2d 693 (1966) ; Thompson v. Hayes, 17 N.C. App. 216, 193 S.E. 2d 488 (1972). By having to be at the longshoreman’s hiring hall at these hours, the claimants have effectively, voluntarily removed themselves from the labor market and are not entitled to unemployment benefits.

The negotiated agreement between the longshoremen and the South Atlantic Employers Negotiating Committee is a commendable effort to provide security and income for the longshoremen. While we can appreciate the effort of the longshoremen to protect those for whom work is not available, it is apparent that this plan is not compatible with Chapter 96. If the public policy of this State should be changed to provide some type of unemployment compensation, this matter must be addressed to the General Assembly.

No error.

Judges Britt and Hedrick concur.