Record and brief — Cohen v. New York City Board of Education

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wo 81 5499

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

In the Matter of the Claim for Benefits under Article 18 of the

Labor Law of New York State made by

IAN COHEN

Claimant-Appellant

NEW YORK CITY BOARD OF EDUCATION

Employer -Appellee

PHILIP ROSS, as Industrial Commissioner of the

New York State Labor Dept.

Appellee

JURISDICTIONAL STATEMENT

LIAN COHEN

484 W. 43 Street Apt 32G

New York, NY 10036

(212) 564-2789

Appellant, Pro Se

QUESTIONS PRESENTED

1. Whether pursuant to New York State Labor Law Section 591 (3) and

its federal counterpart 26 U. S. C. § 3304 (a) (10), the Court of Appeals of

New York State properly barred the now appellant-claimant from receiving

unemployment insurance benefits for the months of July and August of 1979.

2. Whether a person, who is unemployed through no fault of his own can be

barred fran collecting unemployment insurance benefits if the unemployed

person is eligible to receive a small and cond: ‘onal payment from a previous

employer.

3. Whether the period in question can be reasonably considered to be a paid

vacation for claimant considering all the surrounding circumstances.

PARTIES BELOW

The individual claimant, Ian Cohen, is now the appellant,

The parties originally opposing appellant's claim were: Philip Ross,

as Industrial Commissioner of New York State Department of Labor, and

The New York City Board of Education, the former employer of the appellant.

In the Court of Appeals of New York State only the New York City Board of

Education opposed claimant's right to collect Unemployment Insurance Benefits.

OPINIONS BELOW

The opinions of the Administrative Law Judge and the Unemployment

Insurance Appeal Board of the New York State Department of Labor are not

reported. See Appendix A for copies of their decision. The opinion of the

Appeliate Division, Third Dept. of New York State is reported at 78A.D 2d 734,

The opinion of the Court of Appeals of the State of New York is reported at

54 NY 2d 659 Advance Sheet #192.

11

TABLE OF CONTENTS

Page

Questions Presente... seccscoe &

Parties Below. ....ccerscccccesccecsesscsees ocecce i

Opinions Belo i

Table of Contents ö 96 9 9 9 9 9 „eee &

Table of Authorities 555 2 2 iii

Statement of Jurisdiction......... „% % %% de e eee §

Statutory Provisions...... „ 0 6 6 0 %%% % %%% %%% 60 5% % 8

Statement of the Case. „ eee @

Summary of Argument. 5

The Questions Are SubstantiaauUuUuUul . 6

Conclusion. esse eee ese eee | ¥

Appendices

New York State Dept of Labor Administrative A

Law Judge's decision

New York State Dept of Labor Appeal Board

Decision A-l

NY State Appellate Division 3rd Dept Decision

New York State Court of Appeals Decision

9 AO DW

Notice of Appeal

Relevant Statutes NY Labor Law 501 and

591 (3) E

iii

TABLE OF AUTHORITIES

Statutes

Article VI, clause 2 U.S, Conse.

14th Amendment U.S. Cone...

26 U. S. C. 8 3304 (a) (1o0]190ñ:: eee cece eee e ee eeees

SGA SS co vccccccviadrescpeccescesdess

New York Labor Law Sections

3910000) )..

SOS (1)

STATEMENT OF JURISDICTION

The claimant Ian Cohen appeals from the final decision of the New York

State Court of Appeals dated June 29th, 1981 which foreclosed claimant from

collecting unemployment insurance benefits for the months of July and August,

1979. Initially the claim for unemployment insurance benefits was made to

the Industrial Commissioner of the New York State Department of Labor who

rejected the claim based upon information supplied by a former employer

(New York City Board of Education) of the claimant. An administrative hearing

was held at an agency of the New York State Department of Labor presided over

by an Administrative Law Judge. After the Administrative Law Judge decided

that claimant was ineligible to receive unemployment insurance benefits, an

appeal was taken to the Appeal Board of the New York State Department of Labor

that affirmed the Administrative Law Judge's opinion, The claimant then

appealed to the Appellate Division's Third Dept. of New York State that

unanimously reversed the opinion of the Appeal Board and held that claimant

was eligible to receive unemployment insurance benefits for the time period

in question, The employer appealed to the New York State Court of Appeals

which reversed the Appellate Division and reinstated the opinion of the Adminis-

trative Law Judge. In so doing, the Court held that any payment, no matter

how small, could constitute disqualifying income that would bar a claimant

from receiving any and all unemployment insurance benefits. It is this holding

that claimant-appellant believes offends 26 U. S. C. § 3304 (a) (10). New York

State Labor Law 591 (3) which considers vacation pay to be disqualifying

income must have the approval of the Secretary of Labor (26 U. S. C. § 3304 (a)).

New York State Labor Law 591 (3) considers vacation pay, even though such

pay may actually fall within a period of layoff, disqualifying income. However,

New York State's highest Court has handed down a new interpretation of section

591 (3) (b) that offends 26 U. S. C. § 3304 (a) (10), and according to Article 6,

clause 2 of the U.S, Constitution, the federal law is supreme. This new

interpretation denies claimant access to funds that were set aside by both

the State of New York and the federal government to compensate unemployed

persons, and in so doing violates the 14th Amendment to the U. S. Constitution.

The jurisdiction of this Court is invoked under 28 U.S. C. § 1257 (2).

STATUTORY PROVISIONS

Article VI, clause 2 of the U. S. Constitution provides

* This Constitution, and the Laws of the United States which shall

be made in Pursuance thereof; and all Treaties made, or which

shall be made, under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in every State cha?

be bound thereby, any Thing in the Constitution or Laws of any

State to the Contrary notwithstanding.

The 14th Amendment to the U. S, Constitution provides in Section 1

All persons born or naturalized in the United States, and subject

to the juriddiction thereof, are citizens of the United States and of

the State wherein they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any person

within its jurisdiction the qual protection of the laws.

26 U.S.C. § 3304 (a) (10) provides

(a) Requirements. --The Secretary of Labor shall approve any State

law submitted to him, within 30 days of such submission, which he finds

provides that--

(10) compensation shall not be denied to any individual by

reason of cancellation of wage credits or total reduction of his

benefit rights for any cause other than discharge for miscon-

duct connected with his work, fraud in connection with a claim

for compensation, or receipt of disqualifying income;

section 501 of New York Labor Law — See Appendix at E

Section 591 (3) of New York Labor Law - See Appendix at E

Section 595 (1) of New York Labor Law provides

No agreement by an employee to waive his rights under this article

shall be valid.

STATEMENT OF THE CASE

Claimant became eligible to receive two lump sum payments , one in

July, and the other in August, 1979, because he worked as an educational assis -

tant for the New York City Board of Education from September 10th, 1978 until

February 2nd, 1979. After a voluntary separation on February 2nd, 1979

claimant pursued other employment, and eventually was lad off from work

for non-disqualifying reasons. On July 27th, 1979 claimant filed a claim for

unemployment insurance benefits. After being told that benefits were being

denied for the period of June 28th, 1979 until September 4th, 1979 because

his former employer said he was on a paid vacation for that time period, claimant

went to the offices of his former employer to seek out an explanation. He was

told that he could receive two checks amounting to approximately $400 in gross

income. However, before the checks would be disbursed, claimant had to

sign an affidavit swearing that he did not apply for unemployment insurance

benefits for the period in question, nor would he make a claim for such benefits.

Claimant refused, and the checks were withheld.

An administrative hearing was held where testimony was taken and

documents were submitted. Because of a negotiated contract between the

United Federation of Teachers (claimant's former union) and the New York

City Board of Education, claimant had accrued a five day paid vacation (since

he worked about 5 months of the past school year) to commence at the conclusion

of the school year in June. However because of an arbitration award that

was signed July 12th, 1979 , claimant became eligible fer two summer payments,

even though his employment terminated 5 months earlier, computed using the

number of hours claimant had worked during the past school year. If an employee

worked the entire school year he would be entitled to a total summer payment

amounting to 5. 8 weeks pay at his former salary. Because claimant worked

about half the school year he was eligible to receive approximately 2. 8 weeks

of pay. However, he had to sign two documents in order to receive the

summer payment; the waiver of unemployment insurance rights as discussed

before, and a document whereby rights to join a public retirement system would

be waived or in the event membership to a public retirement system was

permitted by a court, the employee would then have to return the summer

payment. The employer, fearing a huge financial liability if a court should

hold employees eligible for benefits, (such was the result in the Appellate

Division) succeeded in negotiating a clause in the arbitration award that

transferred liability from the New York City Board of Education to the United

Federation of Teachers; consequently in the Court below, the United Federation

of Teachers submitted an amicus curae brief opposing benefits for their former

member, Ian Cohen.

The Administrative Law Judge made a determination without considering

arguments that claimant came within the purview of New York State Labor Law

section 591 (3) without any further elaboration on that point. Claimant appealed

to the administrative agency's Appeal Board urging that the $400 that had to

covera 9 week period was not enough to live on and created an unjust enconomic

cruelty ($44. per week). The decision to bar ali unemployment insurance benefits

was affirmed; however, the affidavit/waiver was held to violate section 595 (1)

of New York Labor Law,

Appeal was then taken to the Appellate Division's Third Dept. conceding

of course, that the 5 day vacation was disqualifying, but that the summer payment

was not labeled a vacation , nor was it a real vacation, nor was the payment

1 — ., ——ä—a—ü— —1— 1 — ae —r˖*—˖«vtßr

offered comparable to the benefit rate that the New York State Department of

Labor should have considered appropriate in claimant's economic situation, *

The Appellate Division unanimously reversed the Unemployment Insurance

Appeal Board and ordered them to recompute benefits and re-determine eligibility,

holding that the summer payment was not vacation pay, since it was not labeled

as vacation pay, and was a fraction of the employee's former rate of pay.

The New York State Court of Appeals reversed the Appellate Division

upon the appeal taken by the New York City Board of Education, and held that

vacation pay could be a fraction of the employee's normal rate of pay as they

interpreted NY Labor Law 591(3).

It should be noted that the employer in June, 1981 after the Appellate Division

held employees to be eligible for benefits,and after the Appeal Board held

the affidavit waiving rights to unemployment insurance to be violative of section

595 (1) of NY Labor Law, still required employees to sign the affidavit to

receive the summer payment.

SUMMARY OF ARGUMENT

New York State's Labor Law Section 591 (3) conforms to 26 U. 8. C. §3304(a)(10)

There is no problem in considering vacation pay the equivalent of disqualifying

income. Congress obviously did not intend for unemployed persons to have two

reasonable sources of income. But, can disqualifying income mean in a reasonable

sense that the receipt of $1.00 per week should bar a legitmately unemployed

person from receiving any compensation from the New York State Department

of Labor? Yet the New York Court of Appeals feels that the letter of the Labor

Law must govern, and since the Law says „ . a payment or allowance..." it can

*Claimant's benefit rate was later determined to be approxim tely $80 per week

by the Industrial Commissioner

mean a fraction of the employees regular pay. In the present case the claimant

is eligible to receive about $44 per week or 30% of his former salary. The next

case could involve $34 or $24, etc. An employer, with the help of the New

York State Court of Appeals, could succeed in destroying unemployed persons

access to public funds , and thereby reduce the employer's contribution to the

fund, by creating long , but poorly paid vacations. It is the interpretation by

the New York Court of Appeals that offends Federal Law and according to

article 6, clause 2 of the U. S. Constitution Federal Law is supreme.

THE QUESTIONS ARE SUBSTANTIAL

The Court should review this case because the intent of Congress is to

provide legitimately unemployed persons with a reasonable incore while

seeking out new employment. New York State's highest Court has now created

a precedent that can affect the well being and security of potentially every working

man and woman in the State of New York. New York State recognized the

importance of unemployed insurance in stating the public policy of New York

in Labor Law section 501 "... Economic insecurity due to unemployment is a

serious menace to the health, welfare, and morale of the people of this state....

The Court of Appeals of New York State now permits an employer to make a

miniscule payment, thus destroying the economic security that unemployment

insurance was designed to cure.

CONCLUSION

For the reasons stated it is urged that the Court reverse the New York

State Court of Appeals and order the lower Court to have benefits recomputed

on a more equitable and reasonable basis.

Respectfully submitted,

re 1

IAN COHEN

484 w. 43 St. Apt 32G

New York. NY 10036

Appellant, Pro Se

(212) 564-2789

K* ee *0;ẽ ———ñ— — —

APPENDIX 2

— 0

New York State Department of Labor

Administrative Law Judge Section }

N.¥.C. Board of Dducation DECISTON

Name 2 SSA # ALJ # L.0. #

. —

Esther Geneles (Lead Case) 120-09-1,210 79142765 546

Lillian Wright 18-20-7788 79144837 521

Viola Youngberg 099-18-2695 79-022 519

Tan Cohen 055-446-3115 7938597 . 51

Pia Cual andi 2-2-3698 7938085 523

Marsha Richberg 120-344-5707 79-3813? 5$1

Julia Irizarry 083-01-8158 793808 318

Ronald Coleman 05136-4171 79-0119 520

Dorothy A. Farry 059-16-2154 7937723 521

Roberta McEntee 081-18-1999 7910659 546

Frieda A. Majewski 070-14-6316 79-L1834 550

Frances Lipsig 114-07-1472 79-L1468 519

Elton R. Kurzweh 129-28-504,7 ; 792535 68

Thedra McCrae 087=,6—7531 79-42317 539

Decision mailed and duly filed in the Department of Labor on: NOV 5~ 1979

FACT: Combined hearings were held at hich claimants B, IC, PG, Im,

RC and DF, representatives and counsel for the employer, a representative for clainant

DF, a representative for claimant IC, counsel for claimant MR and a represen-

tative of the Industrial Commissioner appeared, anc testinony was taken.

By initial determinations effective due 28 through September 4, 17/9, clainants

were ruled ineligible pursuant to Section 591 of the Unemployment Insurance Lai:

because they were on paid vacations. Claimants PG, RC anc DF were also cherged

with recoverable overpayments of $58, £25.50 and 562 respectively. At the hearing,

the Industrial Commissicner made application to \ithdraw the initial determinations

of ineligibility for the period from June 2? through September 4, 1979 as to claimants

Tu, FL and VY. Sy further initial determinetion effective August 22 through Augys* 21,

1979, claimant VY was ruled Ineligible because of unaveilability for employment.

Prior to the hearing, clainent VY made application to withdraw her recuest for a

hearing on said initial ceterminaticn.

Although duly notified, claimants JI, IW, EK, TM and RM failed to appear for the

scheduled hearing.

Claimants B, IC, PG, MR, RC and DF were employed as paraprofessionals or cafeteria

workers by a municipal board of education, for varying periods during the 1978-79

school year, «hich ended on June 27, 1979. Thereafter, they became eligible for

vacation pay covering the first ten days of the summer recess of the school systen,

commencing June 28. They were either members of unions in contractual reletions

with the employer, or included in collective bargaining units. Inder the terms of

a negotiated contract, al] employees were entitled to vacation pay plus sumer pay-

ments, which were reckoned on a basis proportionate to their employments during

the academic year. In recognition of this provision of the collective bargaining

agreement, they vere each provided with affidavits waiving their rights to unemploy-

ment insurance benefits during the summer recess of the school system. Those iho

signed the waiver received the sunner payments, inclucing one or tuo who did so

under protest. A failurc to sign the waiver did not alter the option of receiving

summer payments upon even belated signature. Claimants PG, RC and DF nevertheless.

received benefits for the period in issue totaling $58, $25.50 and 362 respectively

to which they were not entitled.

—— Section 391.3 (b) states the follo ang in pertinent part: "The term vaga-

period, as used in this subcivision, means tho time designated for vacation

purposes in accordance with the collective bargaining agreenent or the eaploynent :

contract or by the employer and the clainant, his union, or his representative. I:

Zsther Ganeles (Lead Case) 79-27% Et Al

either the colicctive bargairing agreenent or the esployment contract is silent

as to such tine, or if there be no collective bargaining agreement or explo;mont

contract, then the tine so designated in writing and announced to the ennloyecs

in advance by the employer is to be considered uch vecation period.“ The eli-

gibility for benefits of claimants BG, IC, PG, It, RC and DF come within the pur wie::

of the foregoir.; statute during the period in issue. Ths period in issue is 4 tine

designated for vacetion purposes in accordance ith the ccllective bargaining acrec~

ment in the instant case, as defined by the negotiations and an earlier arbitration

award. Accordingly, seid claimants were correctly ruled ineligible for the period

in issue. Consequently, any payments received by clainants PG, RC and CF during,

or for, the period in issue comprise overpayments. Said overpayments are recover-

able because they ars for periods during which they vere entitled to vacation rey

and/or its equivalent.

Inasmuch as no one will be prejudiced thereby, the Industrial Commissioner's appli-

cation to withdraw the initial determinations es to clainants Mi, FL and VY shoulc

be granted. Moreover, the application of claimant VY to 'ithdray her request for

a hearing on the initial det erainat ion of unavailability chovld alco de granted for

the same reason.

al: Based upon the testimony and the evidence, the initial determinations as

to mts JI, “il, Ti, TH TI are sustained. The iritial determinations of

ineligibility as? cleinants Mi, FL and VY are :ithdraim pursuant to anplicetions

therefor. The initial cetcrinations as to claimants , IC, PG, , MC end DF

are sustained. Claimants PG, RC and DF were overpaid, and said overpayments arc

recovorable.

*

rak

10/31/79

—

.

A-2

ae

New York State Department of Labor DECISION

Unemployment Insurance Appeal Board

Re: Name 8.8. No. ALJ. No. Appeal Board No.

Esther Ganeles 110-09-4210 79-2765 301,211

Ian Cohen 055-46-3115 79-38597 300.65

Ronald H. Coleman 051-36-4171 79-40119 500, 635

Dectsion mailed and duly filed in the Depertnent of Labor on MAR 26 1980

— — — —

PRESENT § James R. Rhone, G. Douglas Pugh . MEMBERS

Claimants E.G. and I.C. appeal from the decision of the Administrative Law Judge

filed November 3, 1979 sustaining the initial determinations of the local offices

holding them ineligible to receive benefits effective June 28 through September ,

1979 because it was a paid vacation for which no benefits are payable. Claimant R.C.

from said decision of the judge sustaining the initial determinations of the

lecal office holding him ineligible to receive benefits effective June 28 through

September 4, 1979 because it was a paid vacation for which no benefits are payable

and charging him with an overpayment of $25.50 in benefits, ruled to be recoverable.

Combined hearings were held before the Administrative Law Judge at which all part-

des were accorded a full opportunity to be heard and at which the claimants, other

claimants not involved in these appeals, a representative for claimant I. C., representa-

tives for other claimants not involved in these appeals, a representative of and wit-

nesses for the employer, the employer's attorney, and a representative of the Industrial

Commissioner appeared and testimony was taken. The Board considered the arguments con-

tained in the written statements submitted by claimant E.G., by and on behalf of

claimant 1. C., and on behalf of the employer with respect to claimant I. C. on appeal.

After a review of the record including testimony and evidence adduced before

the Administrative Law Judge „and due deliberation having been

had thereon, and having found that the Administrative Law Judge's findings of

fact and opinion are fully supported by the record, and that no errors of fact

or law appear to have been made, the Board adopts the findings of fact and the

opinion of the Administrative Law Judge as the findings of fact and opinion of

the Board, except that our decision is not based on the fact that the summer payments

were conditioned upon signing a waiver of rights to unemployment insurance benefits.

Such a waiver would be invalid under Section 595 of the Labor Lav.

DECISION: The decision of the Administrative Law Judge is affirmed.

JAMES R. Mio. Member

0 1 G. DOUGLAS PUGH, Member

RC:WL

Supreme Court—Appellate Bivision APPENDIX B

d 31 , 37998

October 16, 1980

In the Matter of the Claim of IAI! COHEN,

Appellant.

NEW YORK CITY BOARD OF EDUCATIOi!,

Respondent.

PHILIP ROSS, as Industrial Commissioner,

Respondent.

Appeal from a decision of the Unemployment Insurance Appeal

Board, filed March 26, 1980, which determined that claimant was

ineligible to receive wnemployment insurance benefits.

Claimant was employed as a paraprofessional for the New York

City Board of Education (hereafter referred to as employer) until he

resigned for personal reasons on February 2, 1979. He thereafter

secured other employment from which he was laid off under non-

disqualifying conditions on July 12, 1979. Claimant's application

for benefits was subsequently denied by the board which held that

claimant was on paid vacation from the employer from June 28 through

September 4, 1979 and thus ineligible to receive benefits. This

appeal ensued.

The collective bargaining agreement in effect for the period

in issue establishes that paraprofessionals were hourly employees

who were not assured of being rehired each fall. They were entitled

to “vacation” payments in addition to "summer" payments. Vacations

were defined to include the first 10 days following the close of

the school year (Jume 28 through July 11, 1979) and were to be

accrued at the rate of one day for each month or major portion

thereof of service during the school year. Two summer payments

ware to be made, one in July and one in August, and represented

fractional amounts of the paraprofessional’s normal earnings.

Summer payments were to be prorated based upon the number of

days worked during the total school year and were contractually

defined to cover the period between the third to last weekday in

June end the Wodnestey following Labor Day (Jume 28 through

September 4, 1979).

IT Tt should be noted that the agreement sought to condition a

paraprofessional's receipt of the summer payments upon execution of

a waiver of rights to wnemployment insurance benefits. Although the

administrative law judge used this waiver to support his decision

benefits, the board, in affirming the decision of the

administrative law judge, specifically held that its determination

was not based upon the waiver which it found to be invalid under

section 595 of the Labor Law. The employer attempts to contest that

portion of the board's decision on this appeal. However, the issue

is not properly before us since the employer did not file a notice

—o — teil

of appeal from the board's decision.

' — 7

iA = . 2. — — K 333 221 —

— —— — — — > . —ͤ—ũ—œA—w— — —

Supreme Court—Apprilate Bivision B-1

2. \ 37998

The board's determination must be reversed. While it is true

that no benefits shall be payable to any claimant for any day during

a paid vacation period (Labor Law, § 591, subd. 3, par. [a]), it is

also true that the term “vacation period” means the time designated

for vacation purposes in accordance with the applicable collective

bargaining agreement (Labor Law, § 591, subd. 3, par. [b]). In the

instant case, the negotiated contract contains separate definitions

for “summer” and “vacation” periods. Although we recognize that the

labels used in agreements are not conclusive (see latter of Faccio

(Catherwood], 37 A D 2d 633, affd. 31 U ¥ 2d 702; Matter of Walker

[ „ 28 A D 2d 256) and that determinations holding school

employees ineligible when they have worked 10 months and been paid

for 12 months have been upheld as rational (see, e.g., ilatter of

Wolfson [Ross], 57 A D 2d 10; Matter of Utter [Levine], 52 A D 2d

, we cannot concur with the board's conclusion that the entire

period from June 28 through September 4, 1979, was a paid vacation

for claimant.

The summer payments, in addition to covering a period of time

which included claimant's vacation period, were computed under a

separate f which did not fully compensate claimant at his prior

rate of pay.? Therefore, we are led to the conclusion that, unlike

the situations in Matter of Wolfson (Ross) (supra) and Matter of

Utter (Levine) ra), the amounts paid to claimant as summer

payments represented previously earned moneys whose disbursement

was deferred wtil July and August. Accordingly, since we find

the board’s determination arbitrary and unsupported by substantial

evidence, it must be reversed.

Decision reversed, with costs, and matter remitted to the

Unemp t Insurance al Board for recomputation and further

procee s not Sa herewith.

MAHONEY, P. J., SWEENEY, STALEY, M., CASEY and HERLIHY, JJ.,

concur.

2 Wad claimant not left the employer in February but stayed on

until the end of the school year on June 27, he would have received

approximately 5.8 weeks of salary for the 10 weeks covered by the

summer payments.

— — — —— ———— ee

APPENDIX C

State of Aew Mork

Court of Appeals

3 No. 371

In the Matter of tan — MEMORANDUM

New York City Board of Education,

Appellant, This memorandum is uncorrected and subject to re-

Philip Ross, as Industrial vision before publication in the New York Reports

Commissioner,

Respondent.

(371)Allen G. Schwartz ,NYC Corporation Counsel

(Fay Leoussis,Leonard Koerner,& Carolyn E. Den-

arest of counsel) for appellant.

Tan Cohen, Nx City, respondent pro se & Murray

Shactman, NYC.

MEMORANDUM mw 2 ‘

The order of the Appellate Division should be reversed,

without costs, and the decision of the Unemployment Insurance

Appeal Board reinstated.

The Board's decision had a rational basis. What

constitutes vacation pay is d termined by the collective bargaining

agreement. The fact that that agreement called for both “vacation

pay” and “summer pay“ and that the summer pay did not equal claimant's

prior rate of pay could, considered alone, lead to the conclusion that

the summer pay was deferred compensation. There are, however, counter-

balancing factors which furnish a rational basis for the Board's

holding. First, summer pay is paid for a period during which the

employee is not working (i.e, during the school vacation period); the

difference in appeliations for the two categories of pay is essentially

historical. Secondly, nothing in the negotiations for “summer pay"

suggests that the negotiators intended it as deferred compensation.

-2- #371

fo the contrary, the arbitration award which was part of the nego-

tiating process expressly states that “employees shall not be

entitled to receive iremolovment insucance during the summer periods."

Finally, Labor Law, Section 591 (subd 3) requires only that there be

a “payment or allowance” not that it be computed in the same manner

as regular pay, and expressly excludes as a determining factor the

fact that “such payment or allowance be deemed to be remuneration for

prior services rendered as an accrued contractual right."

Order reversed, without costs, and the decision of the Unemployment

Insurance Appeal Board reinstated in a memorandum. All concur. —

Decided June 29, 1981

APPENDIX D

In the Court of Appeals of the

State of New York

eeeeee 6K K- —REṼñ ꝶ—2—— —yw———2——2— 2 2

In the Matter of tne Claim for Benefits under

Article 18 of the Labor Law made by

LAN COHEN

Claimant-Appellant

NEW YORK CITY BOARD OF EDUCATION

Employer -Appellee

PHILIP ROSS, as Industrial Commissioner of the

New York State Labor Dept.

Appellee

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that Ian Cohen, the appellant above-named,

hereby appeals to the Supreme Court of the United States from the final

judgment of the Court of Appeals of the State of New York, reversing a

decision to give benefits under Article 18 of the Labor Law of New York

State, entered on June 29th, 1981. This appeal is taken from each and

every part thereof,

This appeal is taken pursuant to 28 U. S. C. § 1257 (2).

oh

)

3 pellant Fro Se

STATE OF NEW YORK )

COUNTY OF NEW YORK) Ss. ¢

Kenneth Weinstein being duly sworn, deposes md says: deponent is

not a party to the action, is over 18 years of age and resides in the County

of New York

That on the 24th dav of September, 1981, deponent served copies of

the foregoing Notice of Appeal to the Supreme Court of the United States,

pursuant to the Rules of the Supreme Court of the United States, as follows:

1. On the Clerk of the Court of Appeals. by mailing a copy in a duly

addressed envelope. with air mail postage prepaid, to said Clerk at Fac +

Street. Albany, New York, 12207

2. On the New York City Board of Education, by mailing a copy in

a dul addressed envelom, with first class postage prepaid to

Allen G. Schwartz

Corporation Counsel! for the Citv of NY

100 Church Street

New York. NY 10007

Att: Fay Leoussis

3. On the Industrial Commissioner of the NY State Labor Dept, and the

State of New York. by mailing a copy in a duly addressed envelope, with first

class postage prepaid to

Attorney Genera! of the State of New York

2 Worid Trade Center

New York, NY 10047

Att: Room 7129, Frederick Paola

Sworn to before me this —

APPENDIX E

Section 501 of New York Labor Law

§ 501 Public policy of state

As a guide to the interpretation and application of this article,

the public policy of this state is declared to be as follows: Eco-

nomic insecurity due to unemployment is a serious menace to the

health, welfare, and morale of the people of this state. Involun-

tary unemployment is therefore a subject of general interest and

concern which requires appropriate action by the legislature to

prevent its spread and to lighten its burden, which now so often

falls with crushing force upon the unemployed worker and his

family. After searching examination of the effects of wide-

spread unemployment within the state, the joint legislative com-

mittee on unemployment appointed pursuant to a joint resolu-

tion adopted April ninth, nineteen hundred thirty-one, reported

to the legislature that “the problem of unemployment can better

be met by the so-called compulsory unemployment insurance

plan than it is now handled by the barren actualities of poor re-

lief assistance backed by compulsory contribution. through taxa-

tion. Once the facts are apprehended this conclusion is precipi-

tated with the certainty of a chemical reaction.” Taking into

account the report of its own committee, together with facts

tending to support it which are matters of common knowledge,

the legislature therefore declares that in its considered judgment

the public good and the well-being of the wage earners of this

state require the enactment of this measure for the compulsory

setting aside of financial reserves for the benefit of persons un-

employed through no fault of their own.

Added L.1944, e. 705, § 1.

eee

RELEVANT STATUTE

LABOR LAW, Section 591(3): 2

3. Vacation period or holiday. (a) No bene-

fits shall be payable to a claimant for any

day during a paid vacation period, or for a

paid holiday, nor shall any such day be con-

sidered a day of total unemployment under sec~

tion five hundred twenty-two of this article.

(b) The term “vacation period", as used in

this subdivision, means the time designated

for vacation purposes in accordance with the

collective bargaining agreement or the em-

ployment contract or by the employer and the

claimant, his union, or his representative.

If either the collective bargaining agreement

or the employment contract is silent as to

such time, or if there be no collective bar-

gaining agreement or employment contract,

then the time so designated in writing and

announced to the employees in advance by the

employer is to be considered such vacation

period.

(c) A paid vacation period or a paid holiday

is a vacation period or a holiday for which a

claimant is given a payment or allowance not

later than thirty days thereafter, directly by

his employer or through a fund, trustee, cus~

todian or like medium provided the amount

thereof has been contributed solely by the

employer on behalf of the claimant and the

amount so contributed by the employer is paid

over in full to the claimant without any de-

ductions other than those required by law,

even if such payment or allowance be deemed

to be remuneration for prior services ren-

dered as an accrued contractual right, and

irrespective of whether the employment has

or has not been terminated.

(d) Any agreement expressed or implied by

a claimant or by his union or other xepre-

sentative to a plant or department shut down

for vacation purposes is not of itself to

be considered either a withdrawal by such

employee from the labor market during the

time of such vacation shut down or to render

him unavailable for employment during the

time of such vacation shut down.

11

%

SsiUIsi

~ 0} UONO}

ud Court, U.S.

FILED

IN THE 0% 24 1981

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981 ALEXANDER L STEVAS,

CLERK

Docket No. 81-5499

In the Matter of the Claim for Benefits

under Article 18 of the Labor Law made by

IAN COHEN,

Claimant-Appellant,

NEW YORK CITY BOARD OF EDUCATION,

Emplayer-Appellee,

PHILIP ROSS, as Industrial Commissioner

of the New York State Department of Labor,

Appellee.

*

MOTION TO DISMISS OF

EMPLOYER-APPELLEE

ALLEN G. SCHWARTZ

Corporation Counsel of

the City of New York

Attorney for Employer-

Appellee

100 Church Street

New York, New York 10007

(212) 566-4396 or 4333

CAROLYN E. DEMAREST,

FAY LEOUSSIS, ~

of Counsel.

— —— 8 — ee ome 2 —ͤ —

TABLE OF CONTENTS

StateMent.coccesccccsssssesssesesssess

Questions Presenteegckk

ractsssgss

Opinions 1

ARGUMENT

THIS APPEAL SHOULD BE

DISMISSED BECAUSE THE

NEW YORK COURT OF

APPEALS DID NOT RULE

ON ANY CONSTITUTIONAL

OR FEDERAL STATUTORY

QUESTION, AND NO

FEDERAL QUESTIONS

WERE RAISED BELOW .. „ „ „ „ „ „ „ „ „„ 0

Snell iea. . . . . „. „ ee eee eee

10

13

Ee ST se li

TABLE OF AUTHORITIES

Page

Cardinale v. Louisiana,

U.S. 437, 438 (1969) 11

Crowell v. Randell,

U.S. (10 Pet.)

368, 392-399 41036). 00 „„ „0 11

28 U.S.C. 8123⁴ ũ˖ Vwù—I—U— 2. 11

26 U.S.C. res eee eee eee 11

New York Labor Law 55911111. 3, 7,

8, 10,

ll, 12

12 MOORE'S FED. Pac. 1505. 01,

510.01 (2d ed. So ) Perry ll

ii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

In the Matter of the Claim for Benefits

under Article 18 of the Labor Law made by

IAN COHEN,

Claimant-Appellant,

NEW YORK CITY BOARD OF EDUCATION,

Employer-Appellee,

PHILIP ROSS, as Industrial Commissioner

of the New York State Department of Labor,

Appellee.

MOTION TO DISMISS OF

EMPLOYER-APPELLEE

Statement

The appellee New York City Board of

Education moves to dismiss the appeal herein,

from the order of the Court of Appeals of the

State of New York entered June 29, 1981, on

the grounds that the questions presented

a Pe «n 6

either involve no constitutional or federal

statutory questions or are raised for the

first time on appeal to this Court.

Questions Presented

1. May jurisdiction be sustained under

28 U.S.C. §1257(2) where the state court has

not reached any constitutional or federal

statutory questions and has based its deci-

sion entirely on its interpretation of a

‘state statute?

2. May an appellant raise for the first

time on appeal to this Court an argument that

a state labor law, as construed by the state

administrative and judicial tribunals, is in-

consistent with a federal tax statute?

Facts

(1)

Appellant, who is an actor, worked as a

part-time educational assistant for employer-

appellee Board of Education of the City of

New York [hereinafter, appellee“ ] from 1975

through February 2, 1979, when he voluntarily

severed his employment with appellee. While

in his position as educational assistant,

appellant was a member of the United Federa-

tion of Teachers, Local 2, American Federa-

tion of Teachers, AFL-CIO (For“).

On July 27, 1979, appellant filed a

claim for unemployment insurance benefits.

On August 7, 1979, his claim was denied for

the period between June 28 and September 4,

1979 because he was found to have been on

a paid vacation" from appellee.*

*Section 591(3) of the New York Labor Law

precludes employees from receiving state

unemployment insurance benefits during

"paid vacation periods. Paid vacation

period" is defined as “the time designated

for vacation purposes in accordance with

the collective bargaining agreement" "for

which a claimant is given a payment or

allowance". N. 1. LAB. L. §591(3)(b)(c).

3

Appellant's entitlement to summer vaca-

tion pay from appellee for the Summer of

1979 came about as a result of collective

bargaining negotiations between appellant's

union and appellee. The contract contained

a provision by which employees were entitled

to up to ten days salary as vacation pay, .

to be paid for the first ten days after the

close of the school year. Pursuant to this

provision, the number of days of earned va-

cation pay was calculated at the rate of

one day's pay for each month during which

an employee worked for more than one-half

the days thereof.

A subsequent separate Arbitration Award,

to which appellant's union and appellee con-

sented, also established a new “summer

period", running from the end of the school

year in June to the beginning of the new

school year in early September, for which

Q

24

additional, new vacation payments, entitled

"summer payments", were granted. The amount

of the additional summer payments was con-

tingent upon the total number of hours

worked.

These “summer” vacation payments,

together with the vacation payments con-

tinued from the prior collective bargaining

agreement, provide employees with up to a

maximum of eight weeks pay for the newly-

designated 10-week summer period.

Appellant was entitled to the 1979 sum-

mer payments in the summer of 1979 because

of an informal agreement reached between

appellee and appellant's collective bar-

gaining representative in July 1979 to pro-

vide the summer payments to all employees.

who were in the City’s employ subsequent

to December 1, 1978. Appellant was also

entitled to receive the vacation pay he

5

accrued under the prior formula for the

summer of 1979.

(2)

Appellant appealed from the Industrial

Commissioner's denial of benefits. Following

a hearing, an administrative law judge, ina

decision dated November 5, 1979, sustained

the determination of the local office denying

benefits. An appeal was then taken to the

State Unemployment Insurance Appeal Board

("Appeal Board"). In a decision dated March

26, 1980, the Appeal Board affirmed the ad-

ninistrative law judge's decision. Appellant

appealed the Appeal Board's decision to the

Appellate Division, Third Department, which,

in an order dated October 16, 1980, reversed

the determinations below and remanded to the

Appeal Board for a recomputation of benefits.

Employer-appellee then appealed to the New

York Court of Appeals which reversed the de-

6

— Ee nl ee — —

cision of the Appellate Division and rein-

stated the determination of the Appeal Board.

Appellant failed to raise the federal claim

he has asserted on appeal to this Court in

either the state administrative or judicial

proceedings.

Opinions Below

New York Court of Appeals

54 NY 2d 659 (1981)

In a memorandum decision, the Court of

Appeals reversed the Appellate Division,

Third Department, and reinstated the deci-

sion of the Unemployment Insurance Appeal

Board on the ground that it had a rational

basis. In construing the applicable portions

of Section 591 of the New York Labor Law,

dealing with ineligibility for unemployment

insurance benefits during a paid vacation

period, the Court found that the statute

provides that the terms of the collective

7

bargaining agreement govern what constitutes

vacation pay and does not require the vaca-

tion pay to be computed in the same manner

as regular pay.

Appellate Division

78 AD 2d 734

Relying upon the fact that the nego-

tiated contract contains separate definitions

for “summer” and vacation“ payments, the

Appellate Division reversed the Appeal Board's

determination, concluding that the newly-

designated summer period in the collective

bargaining agreement was not a vacation per-

iod within the meaning of Section 591(3)(b)

of the New York Labor Law. While the Court

acknowledged that labels alone are not con-

clusive, it reasoned that because the addi-

tional summer payments covered a period of

time that included the days of vacation pay

already provided for in the prior contract

tone ot — — —

and continued in the new one, and were com-

puted under a formula which would not con-

pensate an employee at full salary for the

entire summer period, the summer payments

were not vacation pay, as both the adminis-

trative law judge and Appeal Board had

already determined, but actually "repre-

sented previously earned moneys whose dis-

bursement was deferred until July and

August”.

Unemployment Insurance Board

The Unemployment Insurance Appeal Board

affirmed, without opinion, the findings of

fact and the opinion of the Administrative

Law Judge.

Administrative Law Judge

The administrative law judge determined

that the parties to the Collective Bargaining

Agreements and Arbitration Award had estab-

9

lished a summer period, which was intended

as a vacation period, and, as a result, per-

sons covered by those agreements, such as

appellant, were not entitled to benefits for

that period pursuant to Section 591(3)(b) of

the New York Labor Law. The judge concluded

that because appellant was entitled to va-

cation pay during a designated vacation

period, within the meaning of Section 391

(3)(b), the initial determination denying

him benefits should be sustained.

ARGUMENT

THIS APPEAL SHOULD BE DISMISSED

BECAUSE THE NEW YORK COURT OF

APPEALS DID NOT RULE ON ANY CON-

STITUTIONAL OR FEDERAL STATUTORY

QUESTION, AND NO FEDERAL QUES-

TIONS WERE RAISED BELOW.

Appellant has failed to establish a

' jurisdictional basis for his appeal. Ap-

pellant asserts jurisdiction pursuant to

10

28 U.S.C. §1257(2). However, the New York

Court of Appeals was not presented with,

nor did it reach, any questions of the

constitutionality of Section 591 of the

New York Labor Law or its validity under

any laws of the United States.

On this appeal, appellant raises for

the first time the argument that Section 391

of the New York Labor Law, as construed by

the New York Court of Appeals, offends 26

U.S.C. §3304(a)(10), of the Internal Revenue

Code. It is well-settled that in appeals

from state courts, this Court is without

jurisdiction to review federal claims that

were never raised in the state court.

Cardinale v. Louisiana, 394 U.S. 437, 438

(1969); Crowell v. Randell, 35 U.S. (10

Pet.) 368, 392-399 (1836); 12 MOORE'S

FEDERAL Pc. 1505. 01, 510.01 (2d ed.

1980).

11

Additionally, since the issue was not

heretofore raised, there is no factual

basis in the record upon which to review

the issue.

| Moreover, since the cited statute

expressly provides for initial review and

approval by the Secretary of Labor, a step

which has certainly not been taken subse-

quent to the New York Court of Appeals' re-

cent construction of Labor Law 5591 at issue

here, any consideration of such issue by this

Court at this time would be entirely specu-

lative. There are clearly administrative

remedies available to appellant which have

not been exhausted and which are an essen-

tial prerequisite to the argument he raises.

Because the federal question raised in

appellant's jurisdictional statement was

never raised below and the New York Court

of Appeals did not reach any federal ques-

12

tions but merely construed a provision of

the New York Labor Law, appellant has failed

to establish a jurisdictional basis for this

appeal.

CONCLUSION

THE APPEAL HEREIN SHOULD BE

DISMISSED, WITH COSTS.

Respectfully submitted,

ALLEN G. SCHWARTZ

Corporation Counsel

for the City of New York

Attorney for Municipal

Appellee.

CAROLYN E. DEMAREST,

FAY LEOUSSIS,

of Counsel.

13