Juster Bros. v. Christgau
| Decision Date | 02 January 1943 |
| Docket Number | No. 33242.,33242. |
| Citation | 7 N.W.2d 501,214 Minn. 108 |
| Parties | JUSTER BROS., Inc., v. CHRISTGAU, Director of Division of Employment and Security. |
| Court | Minnesota Supreme Court |
R. H. Fryberger, of Minneapolis, for appellant.
J. A. A. Burnquist, Atty. Gen., and Kent C. van den Berg, Asst. Atty. Gen., for respondent.
Appeal under Minn.St.1941, § 268.10, subd. 9, Mason St.1941 Supp. § 4337-28, subd. I, from a decision of the director of the state division of employment and security fixing the employer-appellant's rate of contribution to the unemployment compensation fund for the year 1941.
An employer's contribution rate for 1941 is determined on the basis of his "beneficiary wage ratio," which is a percentage equal to the total of his beneficiary wages for the three immediately preceding calendar years, divided by his total taxable payroll for the same three years on which all contributions due have been paid before January 31, 1941. "Beneficiary wages" are defined as "wages paid or payable by an employer for employment to an employee during his base period." Id. § 268.06, subd. 3(2) (§ 4337-24, subd. C(2). An employe's "base period" is the first four out of the last five completed calendar quarters immediately preceding the first day of an individual's "benefit year." Id. § 268.04, subd. 2 (§ 4337-22, subd. A). An employe's "benefit year" means the one-year period beginning with the first day of the first week with respect to which the individual files a valid claim for benefits. Id. § 268.04, subd. 4 (§ 4337-22, subd. C). When an employe files a valid claim and receives his first benefit payment the wages he earned from his base period employer are set up as a charge against that employer's experience rating account.
The appellant is an employer subject to the provisions of the law. The director fixed appellant's 1941 contribution rate at one per cent by giving effect to beneficiary wages of two former employes of appellant, namely, W. F. Grenke and Lydia Marshall. Had these beneficiary wages not been charged to appellant, its rate would have been three-fourths of one per cent.
W. F. Grenke was in the employ of appellant from the fall of 1939 until April 27, 1940, when he separated therefrom. Upon such separation appellant omitted to send to the division of experience and security a notice of the fact of Grenke's separation as required by the division's rules. Grenke left appellant's employ voluntarily for the purpose of returning to a former job at a country club where he had been employed during the 1939 summer season. During Grenke's base period in 1940, wages earned by him charged against appellant's record for that year were $482.53. In the fall of 1940, when the country club closed for the season, Grenke was separated from employment there because of lack of work and, if otherwise qualified, was entitled to benefits under the act. Having failed to obtain other employment, on October 21, 1940, he filed a claim for benefits, which was allowed, $482.53 thereof being charged against appellant's record for 1940.
Lydia Marshall was in the regular employ of appellant until July 28, 1939, when she separated therefrom, submitting her resignation in writing. The circumstances surrounding her resignation, if unexplained, were such as to disqualify her for benefits insofar as her employment with appellant was concerned. Appellant failed to give notice of her separation from its service. The amount of Miss Marshall's wages appearing in appellant's base periods and charged against appellant's records for the calendar year 1940 was $1,183.22. On August 15, 1939, Miss Marshall filed a claim for benefits, which was allowed on the basis of wages earned from appellant during her base period. Subsequently she procured other employment, which purged her of any involuntary separation from appellant's service, but she was later separated from her subsequent employment because of lack of work. Accordingly, on August 30, 1940, she filed a second claim for benefits, which was allowed on the basis of the wages earned from appellant which had not been previously used with respect to the claim filed August 15, 1939. She was paid no benefits for her claim filed August 15, 1939, until the year 1940. This resulted in a charge against appellant's record in 1940 instead of 1939. The second claim for benefits was also charged to 1940.
The division did not send notice to appellant of the filing of either the Grenke claim or the Marshall claim, notwithstanding appellant had a substantial interest in its determination, no notice being required by the statute as it then read.1 Nor did appellant have any actual knowledge of the filing of either claim or the allowance thereof until after the time for appeal from the allowance had expired.
The division in the first instance determined the contribution rate of appellant for 1941 by giving effect to the beneficiary wages to three employees, Grenke, Marshall, and one Letourneau. Appellant duly filed a protest and appeal. On administrative review, the division eliminated the charge with respect to Letourneau but retained the charges against appellant's rate with respect to Grenke and Marshall. Notice of said action was duly sent to the employer. The reasons for retaining the Grenke and Marshall charges, as stated by the division, were "separation from service" which The employer thereupon appealed to the experience rating appeal tribunal and on that appeal presented facts with respect to the separation from employment of each of its two employes, Grenke and Marshall, establishing that each of them had voluntarily and without cause attributable to the employer separated from their employment. This issue of fact was not contested by the division, which placed its entire reliance upon its regulations Nos. 15 and 16, creating respectively a presumption and an estoppel against the employer. The appeal tribunal made no fact finding as to whether or not these employes were separated from their respective employments under circumstances giving them a right to benefits. Instead, it found merely "that the employer-appellant failed to give notice of such separation and of the reasons therefor to the Division of Employment and Security." On the basis of this failure to give notice it affirmed the division's determination.
The employer thereupon appealed to the director, who in turn affirmed the decision of the appeal tribunal. It is from that decision of the director that the appeal to this court is taken.
Mason St.1940 Supp. § 4337-27, subds. A, B, in effect during 1939 and 1940, reads as follows:
About March 1938 the then industrial commission promulgated regulation 15, which provided, inter alia:
The regulation further provided: "(d) Any employer who fails to comply with any of the requirements of this regulation shall be presumed to have admitted that any worker separated from his employment is not disqualified under any of the provisions of Section 7 of the Minnesota Unemployment Compensation Law." (Italics supplied.)
Regulation 15 was superseded by regulation 16, which became effective June 1, 1940. Regulation 16 also provided for notice to the division of separation from employment, but, instead of creating a presumption against the employer for failure to send the notice, it provided:
Regulation 15 was effective at the time of Grenke's separation and at the time of Miss Marshall's first separation. Regulation 16 was effective at the time Miss Marshall separated from her later employment and at the time of the hearing before the...
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