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Yadro v. Bowling





APPEAL from the Circuit Court of Cook County; the Hon. JAMES MURRAY, Judge, presiding.


In an action under the Administrative Review Act, the trial court affirmed a decision of defendant Board of Review (Board) of the Illinois Department of Labor. The Board had determined that plaintiff-claimant, Joseph Yadro, was ineligible to receive Illinois unemployment insurance benefits on the ground that he had removed himself to and remained in a locality where opportunities for work were substantially less favorable than those in the locality he had left. Ill. Rev. Stat. 1977, ch. 48, par. 420(C)(3).

On August 26, 1977, Yadro voluntarily resigned from his employment as a maintenance worker at Benefit Trust Life Insurance Company in Chicago, where he had worked since 1964. Yadro moved to Ironwood, Michigan, were he filed claims for unemployment insurance benefits under the Unemployment Insurance Act. (Ill. Rev. Stat. 1977, ch. 48, pars. 300 through 820.) On the claim forms, Yadro indicated that he was age 62; that he retired to Ironwood for the climate; that he was receiving $275 per month in social security benefits and $75 per month in military benefits. The forms reveal that Yadro applied unsuccessfully for maintenance or related positions with 10 employers in the Ironwood area. Benefit Trust filed a notice of possible ineligibility, claiming that Yadro voluntarily resigned from his job to move out of State.

On March 10, 1978, a claims adjudicator determined that Yadro had taken an early retirement and had removed himself from the active labor market; that he was unavailable for full time work as of December 25, 1977; and that he was ineligible for benefits thereafter until he requalified under the Act. Yadro filed an interstate appeal from the determination, maintaining that he retired for health reasons and that he was able to work and was seeking work in the Ironwood area.

On May 23, 1978, a hearing was conducted in Ironwood, Michigan, before a referee from the Michigan Department of Labor, acting as agent for the State of Illinois. Yadro, appearing without counsel, testified that during his employment at Benefit Trust, he performed various tasks such as maintenance worker, mailroom supervisor, chauffeur, landscaper and gardener. He retired for two reasons; air pollution in Chicago caused him to have difficulty breathing, and he was demoted from mailroom supervisor. He had not missed work because of the lung condition nor had he consulted a physician. Yadro was willing to work as a maintenance worker or truck driver, and he had been seeking such positions. He had a Michigan chauffeur's license. He sought full or part time work, placed no restrictions on hours, and was willing to work day or evening shifts. Yadro would like to earn the same wage he had received in Chicago, but would accept a lower wage in Ironwood. He was willing to travel to work, and had already sought employment in cities as far as 23 miles from Ironwood. Yadro was willing to accept the loss of social security benefits if he found satisfactory employment. At age 65 he would receive a pension from Benefit Trust.

On October 3, 1978, relying on a transcript of the Michigan proceeding, an Illinois referee affirmed the claims adjudicator's determination and denied Yadro's claim for benefits. The referee stated: "When a building maintenance man moves from Chicago to a sparsely populated resort area, he has removed himself to a lesser labor market. The presumption is that he has retired."

With the assistance of counsel, Yadro appealed this determination to the Board of Review of the Department of Labor. After the Board affirmed the decision, Yadro filed a memorandum arguing that there were reasonable prospects of employment in Ironwood. It was urged that had the referee questioned Yadro more closely, he would have discovered that Yadro had experience in the following areas: bartending, maintenance, janitorial services, gas station attendant, grocery store work, construction work, chauffeur, mining, lumber yard work, hospital orderly, general factory work, and kitchen work. In an accompanying exhibit, Yadro listed a representative sample of job advertisements found in a local newspaper, spanning a period from April 22 through December 9, 1978.

On July 3, 1979, in a reconsidered decision, the Board again affirmed the denial of benefits. The Board reasoned that the list of job ads demonstrated that job opportunities for which Yadro qualified in his present locality were sporadic at best and in some months, nonexistent. The Board observed that in the Chicago area, there were numerous employers who hire workers with Yadro's qualifications on a year-round basis. The Board found that from the evidence presented Yadro departed from a large metropolitan area to relocate in an area with substantially fewer job opportunities and a significantly less favorable job market. Accordingly, it held that Yadro was unavailable for work and thus ineligible for benefits. On December 17, 1979, the trial court found that the Board's decision was not contrary to the manifest weight of the evidence and affirmed the denial of eligibility.

On appeal Yadro initially contends that the decision of the Board is contrary to the manifest weight of the evidence. At issue is the Board's finding that Yadro was "unavailable for work" under section 500(C)(3) of the Unemployment Insurance Act. (Ill. Rev. Stat. 1979, ch. 48, par. 420(C)(3).) Section 500(C)(3) reads:

"An unemployed individual shall be eligible to receive benefits with respect to any week only if the Director finds that:

C. He is able to work, and is available for work; provided that during the period in question he was actively seeking work.

3. An individual shall be deemed unavailable for work if, after his separation from his most recent employing unit, he has removed himself to and remains in a locality where opportunities for work are substantially less favorable than those in the locality he has left."

Our function on review of the Board's determination of availability is limited to ascertaining whether its findings of fact are sustained by the evidence. (Mohler v. Department of Labor (1951), 409 Ill. 79, 97 N.E.2d 762.) We may not substitute our own judgment nor disturb the Board's findings unless they are manifestly against the weight of the evidence or unless there is no substantial evidence in the record to support them. Mohler v. Department of Labor; Hale v. First National Bank (1978), 57 Ill. App.3d 310, 372 N.E.2d 959.

The intention of the Act is to provide benefits for the unemployed person who is willing, anxious, and ready to accept suitable employment at a place where there is an available labor market. (Wadlington v. Mindes (1970), 45 Ill.2d 447, 259 N.E.2d 257.) To be eligible for benefits, the claimant must meet certain terms and conditions prescribed by the Act, including section 500(C)(3). (Wadlington v. Mindes.) In Illinois, the receipt of unemployment insurance benefits is a conditional right and the burden of proving eligibility before the Board rests with ...

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