Marvin R. Couchman, Jr., Petitioner,
v.
Industrial Commission of
the State of Colorado (Ex-officio
Unemployment Compensation Commission of Colorado), and
Martin
Marietta Corporation, a Colorado corporation,
Respondents.
No. 73--113.
636 515 P.2d 636; 33 Colo.App. 116
Colorado
Court of Appeals,
Div. II.
Oct. 24, 1973.
Betty L. Nordwind, Englewood, for petitioner.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen.,
Robert L. Harris, Asst. Atty. Gen., Denver, for respondents.
PIERCE, Judge.
This is a review from an order of the Industrial Commission
denying the petitioner's claim for unemployment compensation
benefits. The order of the Commission affirmed the decision of the
referee which denied benefits on the ground that 'the claimant is
not able and available for full-time work during regular normal
working hours due to his restricted availability while attending
class (at Arapahoe Community College).' The referee noted in his
findings that claimant had been carrying approximately 10 hours of
credit per week with some classes scheduled from 9:00 a.m. until
3:00 p.m. on some days. The record also indicates and the referee
expressly found that 'for the past several years the claimant has
worked the late evening shift from 3:00 p.m. until 11:00 p.m.' The
only evidence taken at the hearing before the referee was testimony
by the claimant himself to the effect that he was looking for
similar 'second shift' work as a machinist; that he had been
employed as a machinist working on the second shift for a period of
seven to eight years; and that he has since accepted this type of
employment.
The issue presented is whether the Industrial Commission
correctly interpreted the 'availability' requirement of 1965
Perm.Supp., C.R.S. 1963, 82--4--7(4) where the claimant, although
willing and able to work 'full time,' has, for purposes of obtaining
a general education, restricted his availability to 'second shift'
work. We hold that the evidence in the record before us is
insufficient to support the Commission's conclusion, and remand the
case to the Commission for further findings of fact.
In Industrial Commission v. Bennett, 166 Colo. 101, 441
P.2d 648, the court stated:
"Availability for work' and 'actively
seeking work' are two of the eligibility conditions required
to entitle a person to unemployment compensation. . . . Both
or either of these conditions could be found to be lacking
or restricted by full-time attendance at school, and such a
finding would be a lawful basis for disallowing
compensation. Inquiry therefore regarding any circumstance,
including school attendance, which has a bearing upon
eligibility conditions is not only proper but is required in
the efficient administration of the Colorado Employment
Security Act.'
The court did not rule that a full-time student, by attending
classes during the normal working hours of the day, restricts his
availability for employment. Rather, the opinion only points out
that attending classes in an educational program unrelated to the
claimant's employment is a proper consideration in determining the
availability issue. Therefore, claimant's status as a student does
not in itself make him unavailable for employment within the meaning
of the statute. See Redmond v. Industrial Commission, Colo.,
509 P.2d 1277, announced October 1, 1973; Colo.App., 509 P.2d 1277;
Wiley v. Unemployment Compensation Board of Review, 195
Pa.Super. 256, 171 A.2d 810.
The fact that claimant has restricted his employment to
particular hours of the day or to a specific shift must be
considered within the context of the particular labor market in
which he is seeking employment before a valid conclusion can be
reached as to whether he has made himself unavailable for
employment. Freeman, Able to Work and Available for Work, 55
Yale L.J. 123. Here, the Commission made no attempt to determine the
extent of the job market open to claimant within the limits of his
personally-imposed restrictions.
A determination of the availability for employment is one for
which an all-inclusive rule cannot be stated, but rather must be
made within the context of the factual situation presented by each
case. Texas Employment Commission v. Hays, 360 S.W.2d 525
(Tex.). In the case before us, it is clear that claimant has
subjected himself to a full voluntary and continuous exposure to the
second shift job market. Upon obtaining additional information as to
the existing condition of that particular job market, the Commission
will then be in a position to determine whether or not the second
shift job market provided sufficient job opportunities and
reasonable prospects of suitable work for claimant's employment.
See Industrial Commission v. Bennett, supra; Comment,
Unemployment Insurance in Colorado--Eligibility and Disqualification,
25 Rocky Mt. L.Rev. 180.
The order of the Commission is set aside and the cause is
remanded for further proceedings not inconsistent with this opinion.
Coyte and Ruland, JJ., concur.
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