In re Yarboro

WEBB, Judge. This appeal poses the question of whether the Employment Security Commission’s finding that claimant was not available for work should have been reversed by the superior court. We hold that the superior court committed error in reversing the Employment Security Commission. G.S. 96-13 provides: (a) An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that — * * * (3) He is able to work, and is available for work. . . . We can find no cases on all fours with the case sub judice. The term “available for work” has been construed in other contexts in several cases. See In re Watson, 273 N.C. 629, 161 S.E. 2d 1 (1968); In re Thomas, 281 N.C. 598, 189 S.E. 2d 245 (1972), and In re Beatty, 286 N.C. 226, 210 S.E. 2d 193 (1974). We believe that to be available for work a person must be in a position so that prospective employers will hire him for work of which he is capable of performing. In this case the claimant testified that he was not hired because prospective employers were “waiting to see what my sentence will be.” We hold that the Commission could conclude from this that claimant was not in a position that prospective employers would hire him and he was not “available for work.” We reversed the judgment of the superior court and remand this case for the entry of a judgment conforming to this opinion. [686] Reversed and remanded. Judge Mitchell concurs. Judge MARTIN (Robert M.) dissents.