*1 15,286. No. al. v. Parra. et
Industrial Commission 15,287. No. v. Lazar. et al.
Industrial Commission (137 405) [2d] P. April 26, 1943. Decided General, Mr. H. Law- Attorney Mr. Gail Ireland, L. Henry Mr. Assist- E. Hinkley, Zarlengo, rence Deputy, for in error. ant, plaintiffs Philip
Mr. Hornbein, for defendants error.
En Banc. of the court. Justice Bakke delivered
Mr. law, similarity fact cases, because These two are, were consolidated for trial below and same single disposition opin- reason, submitted to us for in a They Employment ion. arise under the Colorado Secur- *2 ity (S.L. particularly 224), Act 1941, c. section thereof disqualification which deals for benefits. The claimants in are miners both cases coal had for who years employed been as such the northern Colorado fields, one at Frederick and the other at Erie. Work spring was discontinued in the these mines in of compensation and claim was made for the under act. May On 11, 1942, claimants were offered similar work Hayden, away at 175 miles other of the side the -they divide, continental the but insisted not work was accept, whereupon suitable and declined to the claims deputy compensation, holding denied their claim for that the work at and was suitable that of because they disqualified their refusal became for benefits under appeal the referee, statute. On the decision was department appealed reversed. The in turn to the In- compensation. dustrial Commission which refused Final- ly the matter reached the district court set which aside findings and award of commission and ordered compensation. purpose of allowance It is for the reviewing reversing of and the decision trial brought courts that the Industrial Commission has here cases on error. unnecessary
A detailed statement the facts is be- they undisputed. cause are In addition to has been what may family it said noted both that claimants were respec- men and had their at Erie Frederick, homes and tively, having felt and both to leave their homes and families enter at such a distance places their of residence made the work unsuitable. (c) Section 5 of the statute reads: determin- “In ing whether or work is suitable for an individ- degree safety, ual, risk health, involved to his physical prior training, and morals, his fitness and his prior experience earnings, length unemploy- and his securing prospects in his cus- local ment and work tomary occupation, the available and the distance of residence, from his shall be considered.” work question findings posed In its the commission jobs these issue be, or not “Whether as follows: claimants were decision was suitable?” Its considering question raised Commission, “The degree risk in this is of safety, the claim- morals of and health, involved to the jobs no being offered, was to the ants, greater referred customarily sub- are than that to which jected. considera- taken into has also The Commission training, prior physical and fitness tion the claimants’ earnings, length experience prior of their their unemployment securing prospects work and their customary occupations, distance as well and comes to residence, available from their *3 jobs regarding only question conclusion that possibly is them unsuitable render offered that could from the claimants’ distance of available work residences. deciding as to is such “In or not this whether factor jobs is of unsuitable,
render the the Commission country must be is at war that the fact that our Also, taken the fact that there is into consideration. shortage shortage manpower mine to of coal and a into in the effort must taken coal needed war be of our nation account. It is essential to welfare permit every possible man-hour. To full use be made of jobs remain unfilled essential to the effort to while contrary good fully qualified men remain idle seems public policy. permit men under these circumstances To certainly intent of is to draw benefits within Security Employment provisions Act of Colo- rado. therefore finds that the claimants
“The Commission apply good cause to for available suit- did fail without Department of Em- able when so directed ployment Security Employment and the United States Service.” reading
It is at once obvious from a of this de only cision that the commission felt matter in rendering job volved as “is the unsuitable, distance of the available work from the claimants’ residences.” It is to be noted that the sole assigned by
reason holding country commission for its is the fact that our shortage is at war, and that because of the of coal and manpower permit jobs as a result thereof, “To essential fully qualified to the war effort to remain unfilled while contrary good public policy.” men remain idle seems “Under these circumstances” the decision concludes that the men are not entitled to draw benefits. patriotic
While we can understand the motive that prompted expressions, these the commission was with- legal authority place out the decisive factor in the only authority case on this basis. Its source of is in the consequently, agree statute; we trial court. Judgments affirmed.
Mr. Justice Knous specially concurs. and Mr. Mr. Justice Burke, Mr. Justice Jackson Goudy dissent. Justice Mr. Justice Knous specially concurring. may
While it be that the Industrial Commission would authority Employment Security without under the adjudge suitability Act to unemployed solely upon one the basis of what the com- *4 patriotic mission duty feels should be the of the work- man involved, I am satisfied from the records that such was neither the intent nor commission action of the in Upon the cases at bar. this basis I am unable to concur ground expressed in the ing opinion in the court’s for affirm- judgments the of the district court. (c) (1)
I believe section 5 quoted of the act, in upon the commission court, confers the of the prevailing condi- power economic the consider to broad of war dislocations from the arise tions, whether deciding peace depressions trends, or or from time employment is given the in a whether, unemploy- right to so suitable and determinative involved, due here situation ment In the benefits. systems transportation imposed on the burden governments, country by state national and war, thereon, in traffic the flow of an effort stabilize appeal to spring made a wide and summer of buy than, rather such, store of coal to and users ordinarily, fill the fall winter months to wait until or program coopera- this As a result of bins. public therewith, tion an abnormal demand production arose, field summer of coal peak employment periods for and it came stable complicate situation, as result the miners. To a manpower and war to the services flow armed shortage labor in the coal industries, there also was mining industry. satisfied that these circum- I am legitimate than consideration, rather stances, impose patriotism the claim- unwarranted effort to prompted situation con- ants, the comments on tained in commission’s decision. right
Notwithstanding notice commission to any con- convinced, however, such I factors, am arising therefrom are so overwhelmed siderations unchallenged other as to make evidence adduced arbitrary unjust. The and decision of commission many years place (1) That for Lazar’s record discloses: Colorado, Parra’s Frederick, has been at residence family chil- men, are Lazar Erie; both with several an Lazar maintains dren; own their own home and both family garden For in connection with his. extensive has more than a the basic of both decade have coal fields where both been in Frederick-Erie rights particular seniority mines which established *5 they report would on the lose should not for work opening Except such mines. few shifts worked years past 1941, elsewhere in Lazar in the thirteen has (3) employed been field. outside of the Frederick emergencies precise causing peak Because of the employment Hayden, at in the fields of mines home open early July, (4) claimants would The in 1942. away, Hayden, at miles some 200 part May, was not tendered until fore hearings deputy the first before the until was not held mining part (5) type the latter of that The month. Hayden materially carried on in the field differed prevailing in the fields, Erie-Frederick to which the (6) claimants were accustomed. dations for families available There were no accommo- Hayden, a result
at they accepted employment which claimants, there, if pay Hayden would have to their at and also main- board separate family tain at establishments Erie and Freder- Hayden ick. Both had worked at at 1941 which earnings averaged approximately per time their $2.00 day pay less than the received in field. their home Both wages by claimants testified that the them received at Hayden were not sufficient board themselves and maintain their at families home. Lazar testified that unfamiliarity mining type because of his Hayden efficiently followed at he was unable to admittedly there event and Parra did not have defray transportation sufficient funds with which to charges Hayden. “stop-gap” employment
It is to be observed that the opening offered until of the mines in claimants’ necessity they obliged field, own to which of would return, would not exceed a weeks most. few Considering the inevitable dislocation claim- payment ants’ finances which would result from the two-way traveling expenses separate mainte- employ- nance their families, in the event the short accepted ment at had been them, and the above, I am statisfied detailed further circumstances involved, men the statute intent of that under the employ- refusing rights the offered were within *6 arbitrarily in order- the commission acted ment and that withholding unemployment ing benefits them such refusal. because of Goudy
Mr. Justice dissenting. questions here are those It seems to me that basic of fact. The Industrial Commission considered evi- offered was dence and concluded that majority opinion specially con- suitable. The curring opinion to me to be of Mr. Justice Knous seem upon based of the facts and a conclusion drawn review by majority that of therefrom which differs from majority The result also commission. reached judgment of the district In of our was court. view long refusing decisions, line the field of the invade fact-finding body, judgment, my opinion, should this Regal Jackvich, said in Coal Co. v. reversed. We * * * (2d) testimony “If 479, Colo. 99 P. 196: was fairly considering might such men that honest it arrive thereby contrary conclusions then an issue fact was presented finding on that commission binding subsequent issue was district court in its hearing and binds us on This doc- review.” Day, trine in Industrial was reiterated Commission v. (2d) 1061, 111 P. Colo. and should not now be repudiated. I therefore dissent. concur Mr. Justice Burke and Mr. Justice Jackson dissenting opinion.
in this