376 Mass. 107 | Mass. | 1978
Lead Opinion
This appeal challenges the decision of the board of review (board) of the Division of Employment Security (division) denying unemployment benefits to the plaintiff. The decision was affirmed by a judge of a District Court and, pursuant to G. L. c. 151 A, § 42, came here for direct review with a report from that court.
The evidence, supplemented when necessary by findings of the board, is summarized.
One of the primary questions in this case is the effect of the plaintiff’s religious observances on his claim for benefits. He is an orthodox Jew, observing the Sabbath from sundown Friday to sundown Saturday. In accordance with this practice he does not work from Friday noon to Saturday night. This was his custom when he was self-employed as well as when he worked for his son,*
On June 20, 1973, the plaintiff filed a claim with the division for unemployment benefits for the week ending June 23, 1973, and subsequent weeks. See G. L. c. 151A, § 38. The benefits were denied, and, after a hearing, this decision was affirmed. See G. L. c. 151A, § 39. Following
In his decision the review examiner made two rulings: (1) that the plaintiff was unavailable for work during the relevant period, and (2) that he had not made a consistent effort to obtain work. Either of these rulings, if correct in law and fact, would alone be a sufficient basis for denying benefits under G. L. c. 151A, § 24 (b). The vagueness of the decision, however, makes it impossible for us to determine whether both of these rulings, or merely one, and if one which one, was the actual basis for the denial of benefits. Nor can we determine, on the state of the record before us, whether either of the two rulings is correct. The ruling that the plaintiff was unavailable for work appears to be based, at least in part, on the review examiner’s finding that the plaintiff observed the Sabbath from Friday noon to sundown on Sunday. This finding, however, is completely unsupported by the evidence in the record, which indicates rather that the Sabbath observance extended only until Saturday’s sundown. The plaintiff is entitled to have a new ruling by the board on the question of his availability which takes into account the correct Sabbath observance. See generally Sherbert v. Verner, 374 U.S. 398 (1963).
We will not rule on questions which are not presented in a case, or where the incompleteness of the record deprives us of findings of fact that are necessary for decision. Cf. Babson v. Babson, 374 Mass. 96, 106-108 (1977) (Quirico, J., dissenting). We therefore reverse the decision of the District Court and order the case to be remanded to the board with instructions that the findings of fact be clarified and completed and that the precise basis or bases of the decision be identified.
So ordered.
The evidence consists solely of the plaintiffs testimony before the board’s review examiner'. The transcript of this testimony was appar
The plaintiff indicated that he did not work for his son at all on Fridays, since the length of the drive between his home and the store made it purposeless for him to go to work when he had to return home by noon.
Prior to affirming the board’s decision, the District Court judge had dismissed the plaintiffs appeal on procedural grounds. We reversed the dismissal. Schulte v. Director of the Div. of Employment Security, 369 Mass. 74 (1975).
Concurrence Opinion
(concurring, with whom Liacos, J., joins). Since failure to make a consistent effort to obtain work is a sufficient basis for denying benefits under G. L. c. 151A, § 24 (b), I concur in the result reached by the majority. For the reasons stated herein, however, I would order benefits paid to the claimant pending final resolution of this claim.
One ground for denying the claimant benefits was that he was "available for part time work only.” The ground for this finding appears to derive its only support from the claimant’s statements to the review examiner that he would not work on Saturdays and that he observed "the Sabbath from Friday at sundown until Saturday at sundown.” The claimant stated, in substance, that he had to be home by sundown on Friday, that he would not work
Assuming that the review examiner was mistaken as to the clear testimony before him, the board found, without record support and contrary to the clear evidence, that the claimant was unavailable for work "from Friday noon until Sunday at sundown” (emphasis supplied). The board’s finding also is either mistaken or deliberately false.
Implicit in both findings, if viewed as mistaken, is the notion that Sunday is the proper and correct Sabbath. It goes without saying that any decision by a State agency that, in order to qualify for benefits, a claimant must be available for work on a day which the claimant observes as the Sabbath is invidious and unconstitutional discrimination. Sherbert v. Verner, 374 U.S. 398 (1963). See Lincoln v. True, 408 F. Supp. 22 (W.D. Ky. 1975).
Moreover, the board apparently sensed the error in the review examiner’s unsupported and erroneous finding but did nothing to correct the examiner’s error; rather, it made an erroneous and unsupported finding of its own as to the claimant’s unavailability for work. In view of the agency’s inability to accept the principle that any requirement that a claimant work on a day on which it is necessary for him not to work in order to comply with his religion is clearly impermissible, I would place on the agency the burden of clearly demonstrating that any new decision is in no way tainted by religious discrimination.
Because of the high probability that religious discrimination was an underlying factor in the finding that the claimant was available only for part-time work and that such discrimination probably tainted the ultimate decision to deny the benefits sought, I would require the board to make explicit and detailed findings to support
Since evidence of discrimination by the board and by the review examiner is a reasonable inference from the record, I would order the payments of benefits to the claimant pending final resolution of his claim.