MARY MARTIN vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & others.

SPIEGEL, J. This is an appeal under G. L. c. 151A, Section 42 (as amended through St. 1954, c. 681, Section 12), by the director of the division of employment security from a decision of the District Court which "set aside" the decision of the division's board of review denying unemployment benefits to the claimant.

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The record reveals the following. On September 13, 1962, the claimant filed a claim for benefits. In her "statement of facts" she said that she had left her job as a stitcher at Gem Sportswear, Inc. (Gem), on August 29, 1962, because it was a "night job" and she "wanted to work days." She also stated that on September 6, 1962, she had been hired by Lissak & Company (Lissak) as a full time employee to work days and that on September 12, 1962, she had been temporarily laid off because of a change-over of styles. The director determined that under G. L. c. 151A, Section 25, [Note 1] the claimant was disqualified from receiving benefits for the ten weeks ending November 10, 1962. The claimant then sought review by the board of review of the decision of the director. She stated in her application for review: "I believe I was justified in leaving the job [with Gem] because I would be able to make more money on a full-time day job."

On November 21, 1962, there was a hearing before a review examiner. At the hearing, the claimant averred that she had left Gem because of "an agreement with the man when I went to apply for the job that it would be just for four weeks." When asked to explain a delay between leaving Gem and starting at Lissak, the claimant said, "I stayed home one week to get the children ready for school." She also assigned as a reason for leaving Gem "a nervous condition that I have been nursing since last December" and

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presented a letter from her physician. [Note 2] Finally, when asked, "Now, why did you leave [Gem]?" she answered, "For the simple fact of still being a seamstress on dresses, and I preferred to do something else outside of that industry."

The review examiner, affirming the director's decision, stated: "The claimant has successively advanced a number of reasons for leaving her work with Gem . . .. At her hearing on November 21, 1962, the claimant advanced two more reasons: that stitching garments made her nervous and that she preferred to engage in some other type of work in which she then had had no experience. She has presented a letter dated November 19, 1962, from her physician which at first glance seems to support this contention. Closer reading of this letter shows that all of the physician's advice is based upon the claimant's alleged symptoms and her opinions as to their cause. It is found that the immediate cause of the claimant's separation from the above employer was to take care of domestic duties; that this is not good cause for voluntarily leaving work within the . . . provision of the statute [G. L. c. 151A, Section 25 (e) (1)]."

The board of review denied the claimant's request for further hearing, [Note 3] whereupon she petitioned for review by

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the District Court pursuant to G. L. c. 151A, Section 42. The District Court judge made a "finding," which in relevant part reads as follows: "In reviewing the facts as set forth in the hearing of the Review Examiner on November 21, 1962, it would appear that the . . . [claimant] did voluntarily leave her employment at Gem . . . at the end of August because it was causing her too much nervous strain and also because she wanted to establish her 4 children back in school. The report also reveals . . . that at the time she voluntarily left Gem . . . she had a promise of a job at Lissak's, a shoe factory, where she in fact started the following week. The report and the medical evidence of Dr. Berry indicates that she could no longer do stitching but could and did in fact do the work at Lissak's with no physical strain. The report also indicates that she was laid off at Lissak's after a week and a half because they wanted to change styles, and it appears she has not been offered or had an opportunity to get that kind of a job since. The Review Examiner seems to base his decision on her leaving Gem . . . when, in fact, there appears to be no reason why it cannot be considered that she was laid off by Lissak's. With regard to her refusal to take stitching work offered her, I feel she has a right, if it affects her health, to expect that she be furnished work similar to that done at Lissak's which she can do physically. I find that the Board has failed to consider the . . . [claimant's] statement that she had this employment at Lissak's promised to her when she quit her work at Gem . . .. I find that Chapter 151A, Section 25, paragraph E covers this type of situation and stipulates that such a person shall not be disqualified. I find the Board has been prejudicial under Chapter 30A, Section 14, paragraph 8, clauses E and G. [See footnote 4.] I find the . . . [claimant] is entitled to benefits without a waiting period and the decision of the Board is set aside."

We infer from the foregoing that the District Court "found" the decision of the review examiner "unsupported by substantial evidence" and "arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with

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law." [Note 4] We are unable to determine the reasons for such a "finding." One implication is that the District Court believed the review examiner was in error in failing to find that a cause of the claimant's leaving Gem was "too much nervous strain." Still another implication is that the examiner was obligated to find as fact that the claimant left Gem in order to accept employment at Lissak, that she was thereafter laid off by Lissak, and that under such a finding the claimant was entitled to immediate benefits as matter of law.

The scope of review in the District Court under G. L. c. 30A, Section 14 (8), of the findings of fact and decision of the board of review has been stated by this court. "Since the examiner's findings, adopted by the review board, were supported by substantial evidence and his conclusions were not based on any error of law, the board's decision should have been affirmed by the District Court." Bogdanowicz v. Director of the Div. of Employment Security, 341 Mass. 331, 335. See Wagstaff v. Director of the Div. of Employment Security, 322 Mass. 664, 667, wherein it was said: "It is the board which has been made the sole judge of credibility and the weight of the evidence. If the findings are . . . supported [by evidence], it is not open to the District Court or to this court to substitute other views as to what should be the determination on the facts." See also Farrar v. Director of the Div. of Employment Security, 324 Mass. 45, 50-51; Weiner v. Director of the Div. of Employment Security, 327 Mass. 360, 363; Sinclair v. Director of the Div. of Employment Security, 331 Mass. 101, 102.

In the instant case the review examiner's finding that the claimant left her employment at Gem "to take care of domestic duties" is supported by evidence. The claimant by

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her own admission had arranged to work for Gem for only four weeks and actually left on her own accord after three and one-half weeks of work. She admittedly desired to utilize the week between the job at Gem and the job at Lissak to get her children ready for school. It is true that the claimant gave other reasons for her actions, some of which if believed may have entitled her to benefits without a waiting period, but the review examiner was not obliged to believe her or to make findings in her favor. Bogdanowicz v. Director of the Div. of Employment Security, supra, 334. It is not open to the District Court to accept as credible the testimony of the claimant and thus contravene the finding of the review board.

We see no basis on which the District Court could have concluded that the decision of the board was "arbitrary or capricious" or otherwise unlawful under G. L. c. 30A, Section 14 (8) (g).

It follows that the decision of the District Court is reversed and a decision is to be entered affirming the decision of the board of review.

So ordered.