# Record and brief — Cohen v. New York City Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1772%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1981 - **Citation:** 454 U.S. 1118 ## Text badges euoyoipsune 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1772%3A0. Public record. Not legal advice.