JOHNSON v. DISTRICT UNEMPLOY. COMP. BD., 408 A.2d 79 (D.C. 1979)

No. 13807.District of Columbia Court of Appeals.Submitted April 19, 1979.
Decided October 12, 1979.

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George Ray, Washington, D.C., was on brief, for petitioner.

Russell L. Carter, D. Kevin Dugan, and N. Denise Wilson, Washington, D.C., were on brief, for respondent.

Before NEWMAN, Chief Judge, and KERN and FERREN, Associate Judges.

FERREN, Associate Judge:

Petitioner, Andrew Johnson, challenges a decision by the District Unemployment Compensation Board (Board) that Johnson (1) had failed to accept suitable work, D.C. Code 1973, § 46-310(c), and (2) had become ineligible for benefits due to unavailability for work, D.C. Code 1973, § 46-309(d). We affirm.

I.
In October 1977, Johnson left his job as a counselor at the University of the District of Columbia and moved to Hawaii with his family. The severe respiratory problems suffered by Johnson’s wife and son prompted the move. Johnson holds a masters degree in community psychology and had been employed by the university for several years. At the time of his move to Hawaii, Johnson earned approximately $14,000 per year.

Johnson filed an interstate claim with the Board see D.C. Code 1973, § 46-316, during November 1977 and initially was found eligible for benefits. Thereafter, he reported his contacts with prospective employers to the Hawaii Department of Labor and Industrial Relations. In mid-March 1978, the Hawaii State Employment Office referred Johnson to the University of Hawaii, where

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there was a job opening for a contracts administrator at a salary stated to be $1,100 per month. The university offered the job to Johnson, however, as a temporary position — for two months — at a salary of $987 per month. Johnson declined the offer.

After an investigation, including interviews with Johnson, a claims deputy of the Board made two determinations on April 18, 1978. First, he disqualified Johnson from receiving benefits for an eight-week period — March 12, 1978 to May 6, 1978 — because of his refusal to accept the contract administrator’s job. The claims deputy found that the job was “suitable work.” D.C. Code 1973, § 46-310(c).[1] Second, he found Johnson ineligible for benefits for an indefinite period beginning March 12, 1978, on account of his failure to make himself available for work as required by § 46-309(d).[2] The claims deputy stated that Johnson had unduly restricted his availability in two ways: by primarily seeking college counselor positions and by failing to lower his wage demands. An interstate hearing took place on May 17, 1978, and the appeals examiner affirmed both decisions on May 24, 1978. The Board adopted the examiner’s findings of fact and affirmed his decision on August 11, 1978. Having exhausted all administrative appeals as required by D.C. Code 1978 Supp., § 46-312, Johnson filed a petition for review by this court.

II.
Johnson contends that the contract administrator’s job was not suitable work and, accordingly, that he should not have received an eight-week disqualification under § 46-310(c).

First, he says, the salary was inadequate when compared with his $14,000 salary in the District of Columbia.[3] It is true that under § 46-310(c), a claimant’s prior earnings are one factor which the Board must consider in determining whether a claimant has rejected suitable work.[4] The Board, however, has a responsibility to determine whether, under the facts and circumstances, the salary offered was reasonably within an acceptable range derived by reference to the individual’s previous income. See Bus v. Bethlehem Steel Corp., 37 A.D.2d 98, 322 N.Y.S.2d 310 (1971), aff’d, 32 N.Y.2d 955, 347 N.Y.S.2d 206, 300 N.E.2d 736 (1973). In making that finding here, the Board appropriately took into account the fact that Johnson had been unemployed for four months at the time he refused the job. As the period of unemployment continues, a job offer at a salary lower than

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the claimant earned previously may become suitable, even though the lower salary may not have been suitable at the time the claimant first became unemployed. See Wallace v. Sullivan, Tenn., 561 S.W.2d 452, 454 (1978); Murphy v. Unemployment Compensation Board of Review, 24 Pa.Cmwlth. 466, 469, 357 A.2d 263, 264 (1976).[5] Thus, it was reasonable for the Board to expect Johnson, after four months of fruitless searching, to moderate his salary expectations.

Johnson contends, next, that temporary work is not suitable for a claimant seeking permanent employment.[6] Although a claimant might not initially be expected to take a temporary job, the Board was reasonable in expecting Johnson to do so after four months of unemployment. Compare Toston v. Industrial Commission, 160 Colo. 281, 417 P.2d 1 (1966) (claimant not required to take a temporary job when only unemployed for a “short time”). It is possible, of course, that under certain circumstances a temporary job might be unsuitable if it would prevent a claimant from seeking long-term employment. The appeals examiner found, however, that Johnson “could have continued a search for more suitable employment while employed at the University of Hawaii.” We agree that there is nothing in the record tending to show that the temporary job at the University of Hawaii would have impaired Johnson’s continued effort to find permanent employment.

Finally, Johnson asserts that he did not have the proper training and experience for a position as a contracts administrator. But see note 6 supra. Ample evidence of record indicates the contrary. When applying for benefits, Johnson indicated an ability to work in “business administration (acc’t., management, bookkeeping and marketing),” as well as counseling.[7] Moreover, the prospective employer was convinced, on the basis of a personal interview, that Johnson could handle the job.[8]

The record, therefore, supports the Board’s decision that Johnson should be disqualified from benefits for an eight-week period — March 12 to May 6, 1978 — because he refused to accept suitable work.

III.
Johnson also asserts that the record does not support the Board’s determination that he was unavailable for work, § 46-309(d), and thus ineligible for benefits, as of March 12, 1978.

The claimant has the burden of demonstrating availability for work, which means that he or she must be ” ‘genuinely attached to the labor market.’ ” Hawkins v. District Unemployment Compensation Board, D.C.App., 390 A.2d 973, 975 (1978) (quotin Woodward Lothrop, Inc. v. District of Columbia Unemployment Compensation Board, 129 U.S.App.D.C. 155, 157, 392 F.2d 479, 481 (1968)); accord, Cumming v. District Unemployment Compensation Board, D.C.App., 382 A.2d 1010, 1015 (1978). A claimant may show that attachment by making an adequate number of contacts with employers. See Woodward Lothrop, supra, 129 U.S.App.D.C. at 157,

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392 F.2d at 481. The claimant will be found unavailable for work within the meaning of § 46-309(d), however, if the job search is unreasonably restricted. National Geographic Society v. District Unemployment Compensation Board, 141 U.S.App.D.C. 313, 321, 438 F.2d 154, 162 (1970).

The appeals examiner determined that Johnson was unavailable as of March 12, 1978, for two reasons: (1) his concentration on employment with colleges and universities, and (2) his refusal to moderate his wage demands. As to the first, Johnson replies that his contacts have been sufficiently diversified. Specifically, the record shows the following contacts for the period up to the date of ineligibility (March 12, 1978) and, thereafter, up to the date of the appeals examiner’s decision (May 24, 1978):[9]

JOB CONTACTS[10]

11/10/77- 3/12/78- 3/12/78 5/24/78 Total ——- ——- —– Colleges or universities 23 (74%) 10 (43%) 33 (61%)
Other 8 (26%) 13 (57%) 21 (39%) — — — 31 23 54

Affirming the claims deputy’s decision, the appeals examiner concluded that Johnson was “ineligible to receive unemployment benefits from 3-12-78 until such time as he demonstrates that his availability for full time work is not restricted.” In doing so, the examiner appears to have based his decision solely on the record before the claims deputy, for he cited the fact that “[s]ixteen (16) of his job contacts have been at the University of Hawaii” — the number of Johnson’s contacts with that university prior to mid-March 1978.

We agree that the record reflected in the chart above supports a conclusion that as of March 12, 1978, Johnson had unreasonably restricted his job search to colleges and universities.[11] However, for purposes of clarification, it is important to stress that neither the appeals examiner nor the Board has ruled on the question of Johnson’s availability for work (either as to diversity of contacts or required salary level) after March 12, 1978. If we assume that the chart above is accurate, see note 9 supra, the record shows that between March 12 and May 24, 1978, the date of the appeals examiner’s decision, Johnson’s college and university contacts dropped from 74% to 43% of the total.[12] Without further action of the Board, therefore, neither Johnson nor this court can know whether his more recent contacts — those after March 12, 1978 — were sufficiently diversified, and had a realistic enough salary requirement, to reestablish his availability.

IV.
When the Board decides that a claimant is unavailable for work, D.C. Code

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1973, § 46-309(d), it is important for all concerned — especially for the claimant — that the Board specify the period to which that decision applies.[13] In this case, for example, the claims deputy made a determination, effective March 12, 1978, that Johnson was ineligible “until [he] can establish [his] unrestricted availability for full-time work.” The appeals examiner used similar language. See note 13 supra.
As indicated in Part III supra, we have concluded that the appeals examiner confined his review to the period covered by the claims deputy — and no more.

That is not always the case. Although there must come a point when the record before the appeals examiner is closed, that point is not necessarily established by the record before the claims deputy. The record before the appeals examiner and the Board — and thus this court — ordinarily includes evidence received at the interstate hearing (after the claims deputy has ruled) or otherwise admitted by the appeals examiner. Therefore, absent express or other clear indications of the dates covered by a decision, the record could be understood to include all evidence properly before the appeals examiner as of the date of his or her decision.

In the present case, therefore, were it not for the appeals examiner’s (and thus the Board’s) limitation of the record to March 12, 1978, we would be confronted by a May 24, 1978, determination under § 46-309(d), adverse to the claimant, based on an administrative record with a noticeable change in the pattern of job contacts between March 12 and May 24, after the claims deputy had ruled, tending to undermine that determination. Thus, we would be confronted by the question whether the evidence could be said to support that broader determination — a question which might not be answerable without a remand for further proceedings.

We make these observations in the hope of clarifying the proper way for all participants to deal with § 46-309(d) determinations — and in the interest of minimizing the prospects for remands to the Board. In summary, all § 46-309(d) determinations should specify whether they extend to the date of the appeals examiner’s determination or, as in this case, are more limited.

V.
We affirm the Board’s decision that Johnson was disqualified from receiving benefits for eight weeks, March 12-May 6, 1978, because of his refusal without good cause to accept suitable work. D.C. Code 1973, § 46-310(c). We also affirm the Board’s decision that Johnson was unavailable for work, and thus ineligible for unemployment compensation benefits, as of March 12, 1978 — subject to his right to reapply for benefits after that date consistent with his eight-week disqualification.

So ordered.

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