Bowman v. Review Bd. of Indiana Employment Sec. Division

• Citation: 303 N.E.2d 840,158 Ind.App. 563
• Decision Date: 27 November 1973
• Docket Number: No. 2--273A55,2--273A55
• Parties: Clair W. BOWMAN, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellees.
• Court: Court of Appeals of Indiana

Page 840

303 N.E.2d 840

158 Ind.App. 563

Clair W. BOWMAN, Appellant, v. REVIEW BOARD OF the INDIANA EMPLOYMENT SECURITY DIVISION et al., Appellees.

No. 2--273A55.

Court of Appeals of Indiana, Second District.

Nov. 27, 1973.

Howard E. Petesen, LaGrange, for appellant.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., Indianapolis, for appellees.

SULLIVAN, Judge.

Appellant Bowman appeals a negative decision of the Employment Security Review Board which denied him unemployment benefits. Two of the four specifications in his Assignment of Error, however, are directed solely to the decisioin of the liability referee. We are authorized to review only the decision of the Review Board. Davis v. Review Board (1973 Ind.App.), 300 N.E.2d 690; McKinley v. Review Board (1972 Ind.App.) 290 N.E.2d 108. Thus, the two specifications concerning the decision of the referee present no issue for our review.

A third specification asserts error by the Review Board in failing to permit Bowman to introduce additional evidence. The controlling administration rule with respect to introduction of additional evidence is Rule 4 of the Indiana Employment Security Board as authorized by IC 22--4--17--6, Ind.Ann.Stat. § 52--1542e (Burns 1964). This Rule authorizes the Review Board in its discretion to admit additional evidence for good cause shown. Ladd v. Review Board (1971), Ind.App., 276 N.E.2d 871; Thomas Products Co. v. Review Board (1969), 145 Ind.App. 425, 251 N.E.2d 473. The Rule, however, requires that:

'An application for leave to introduce additional evidence made by either party shall set forth the names and residences of the witnesses whose testimony will be offered and the facts to which they are expected to testify. If the new evidence be documentary, then a copy of the document proposed to be introduced shall accompany the application.'

Bowman's application does not meet the aforesaid requirement. It was not error therefore for the Board to refuse such additional evidence.

Appellant's final assertion of error challenges the constitutionality of Chapter 14, Section 3 of the Unemployment Security Act. The provision so challenged is IC 22--4--14--3, Ind.Ann.Stat. § 52--1538b (Burns 1973 Supp.) which insofar as pertinent provides:

'An unemployed individual shall be eligible to receive benefits with respect to any week only if he is physically and mentally able to work, is available for work and is found by the division to be making an effort to secure work . . ..'

To be sure, the decision of the Review Board was premised upon its conclusion that Bowman failed to meet the availability requirements of Chapter 14 § 3 but such conclusion is subjectively intertwined with an interpretation of IC 22--4--3--2, Ind.Ann.Stat. § 52--1527a (Burns 1964) which provides:

'An individual is 'partially unemployed' when, because of lack of available work, he is working less than his normal customary full-time hours for his regular employer and his remuneration is less than his weekly benefit amount in any calendar week, but no individual shall be deemed totally, part-totally, or partially unemployed in any week which he is regularly and customarily employed full-time on a straight commission basis.'

The constitutional challenge of Bowman is founded upon the argument that the statute or combination of statute construed by the Board unreasonably excludes from the benefits of the Employment Security Act persons who are remunerated upon a commission basis.

We are unable to undertake an informed review of the Board's decision for reasons hereinafter set forth. Our inability is occasioned by the insufficiency of the Statement of Facts, Findings and Conclusions as made by the Board, which are as follows:

'STATEMENT OF FACTS: Claimant testified that he began working for this employer in October 1968, enrolling prospective students either at their residence or the employer's school; that he no longer performed such work for the employer after July 1, 1972, because on said date a law became effective which requires vocational schools to have special bonding for obtaining a license to operate, consisting of $25,000 for the school and $5,000 for each agent; that the employer was unable to obtain such bonding due to the reluctance of bonding companies to write such bonds for private schools because the law involved failed to state clearly what constituted a violation thereof; that he was advised as late as July 21, 1972, by the executive director of the Accrediting Commission that there was no bond on file for him or the employer; that no students were enrolled by him after July 1, 1972, since he could have been subjected to a fine or jail sentence if he had done so without proper bond or license; that he did not go back to work for the employer after July 1, 1972; that he was on a straight commission basis during July 1972; and that he would have worked the week ending July 22, 1972, if he and the school had been properly bonded.

Claimant testified further that after July 1, 1972, he talked only with previously enrolled students to answer their questions; that he did receive commissions from the employer after July 1, 1972 (Tr. p. 8, line 30), part of which was money owed to him by the employer for as long as 12 months; that he received a temporary permit around August 1, 1972, which was not properly signed; that his work experience includes seven years in guided missiles; that putting up his bond was optional but the employer had agreed to post bond for him; and that he looked for work after July 21, 1972.

FINDINGS AND CONCLUSIONS:

The Review Board finds that claimant was hired on a straight commission basis by this employer to enroll students either at their residence or the employer's school.

It further finds that claimanmt did not perform such work for the employer after July 1, 1972, since he and the employer were not in complianace with a law which became effective on that date requiring that the employer, as a private vocational school, post a minimum bond of $25,000 and $5,000 for its agents, including claimant.

It further finds that claimant enrolled no new students after July 1, 1972, and only answered questions of students who had enrolled prior to that date because he understood the aforementioned law provided a penalty of a fine and jail if he continued to enroll students without posting the required bond.

It further finds that claimant continued to receive commissions from the employer after July 1, 1972, on students he had enrolled prior to that date.

It further finds no definite termination date of claimant's status as a full-time agent earning straight commission paid by the employer prior to that termination, evidenced by Division Exhibit 6 in the transcript which is a letter of termination from this employer dated August 30, 1972.

The Board concludes that claimant was essentially employed full time by the employer on a straight commissiion basis and, accordingly, failed to meet the availability requirements of Chapter 14--3 of the Act as of week ending July 22, 1972, when interpreted in the terms of Chapter 3--2 of the Act.'

In the cause before us, Bowman might well meet the basic definition of one who is 'partially unemployed' in that 'because of lack of available work' (such lack being occasioned by operation of law, i.e., the bonding requirement), he was working less than his normal full-time hours for Elkhart Institute of Technology. It is the Board's position, however, that the concluding sentence of § 52--1527a which states that no individual may be deemed partially unemployed 'in any week which he is regularly and customarily employed full-time on a straight commissiion basis', precludes an award of benefits.

At the outset it must be observed that no question is before us with respect to whether or not claimant Bowman is or was an employee of Elkhart Institute. The findings and conclusions of the Review Board repeatedly refer to Elkhart as the 'employer' and states that the claimant 'was essentially employed full time by the employer on a straight commission basis.'

In this connection it is noted that most case law concerning application of unemployment compensation laws to commission salesmen revolves around whether such salesman is or is not an 'employee'. See National School of Aeronautics, Inc. v. Division of Employment Security (1950 Mo.App.), 226 S.W.2d 93; Anno. 29 A.L.R.2d 751. Section 52--1527a does not state that pesons remunerated upon a straight commission basis are...