Layman v. State Unemp. Comp. Comm.

• Decision Date: 21 October 1941
• Parties: LAYMAN <I>v.</I> STATE UNEMPLOYMENT COMPENSATION COMMISSION ET AL.
• Court: Oregon Supreme Court

167 Or. 379

117 P.2d 974

LAYMANv.

STATE UNEMPLOYMENT COMPENSATION COMMISSION ET AL.

Supreme Court of Oregon.

Argued April 17, 1941.

Reversed October 21, 1941.

Master and servant — Unemployment compensation

1. The court is without power to disturb finding of unemployment compensation commission that employer is seasonal employer, if such finding is supported by substantial evidence in record made before referee.

Master and servant — Seasonal employment

2. In proceeding for benefits for unemployment during a period which employer asserted was seasonal, employe's argument that curtailments of employment and occasional periods of shutdown were brought about by market conditions rather than by seasonal conditions, could be considered by unemployment compensation commission, but could not be considered by court, since such argument went to weight of evidence and not to existence of substantial evidence.

Master and servant — Unemployment compensation

3. The term "seasonal conditions" in unemployment compensation law limiting benefits to longest seasonal period of operation of employer for whom it is not possible or practicable to operate throughout year on account of seasonal conditions, includes conditions of weather peculiar to particular season of year, and is wider in scope and meaning than the mere words "seasonal occupation" or "seasonal employment".

Master and servant — Unemployment compensation

4. The word "customary" in unemployment compensation law limiting benefits to longest seasonal period which is customary in operation of employer for whom it is not possible or practicable to operate throughout year on account of seasonal conditions, should be given its commonly understood meaning of "habitual", the antithesis of "unwonted", "extraordinary", "rare".

Customs and usages — What constitutes

5. In order for a practice to be "customary" over a period of years, it need not be engaged in every year but where the practice is observed in nearly half the years and abstained from during the remaining years, there is no "custom" one way or the other.

Master and servant — Unemployment compensation

6. The word "operate" in unemployment compensation law limiting benefits to longest seasonal period of operation of employer for whom it is not possible or practicable to operate throughout year on account of seasonal conditions, means to direct the working of, to manage, conduct, work, as a railway or business; to carry out, direct to an end, as an undertaking.

Master and servant — Unemployment compensation

7. Repair, maintenance and construction work at logging camp did not constitute "operation" within unemployment compensation law limiting benefits to longest seasonal period of operation of employer for whom it is not possible or practicable to operate throughout year on account of seasonal conditions.

Master and servant — Seasonal employment

8. A logging camp was not engaged in "operation" within unemployment compensation law limiting benefits to longest seasonal period of operation of employer for whom it is not possible or practicable to operate throughout year on account of seasonal conditions, where the only work was reconstruction of railroad line and shop and tree planting.

Master and servant — Seasonal employment

9. Where logging camp crews of substantial but not normal size were engaged in falling, bucking and cold decking, which activities are integral parts of a "logging operation", camp was engaged in "operation" within unemployment compensation law limiting benefits to longest seasonal period of operation of employer for whom it is not possible or practicable to operate throughout year on account of seasonal conditions.

Master and servant — Unemployment compensation

10. Under unemployment compensation law limiting benefits to longest seasonal period of operation of employer for whom it is not possible or practicable to operate throughout year on account of seasonal conditions, logging camp may be in "operation", notwithstanding that all the various jobs from falling the trees to dumping the logs in the water and scaling them are not being performed.

Master and servant — Seasonal employment

11. In determining whether employment is seasonal under unemployment compensation act, "shutdown" of plant means the same as "cessation of operations" of plant.

Master and servant — Seasonal employment

12. Evidence was insufficient to show that logging camp whose employment was substantially curtailed and which was intermittently shut down completely during January and February because of seasonal conditions, but which had substantial production during such months in five out of eleven years, customarily operated during regularly recurring period of less than one year in length, and therefore did not warrant denial of unemployment compensation on ground that unemployment during January and February was seasonal.

Statutes — Legislative intent

13. An amendment to an act may be resorted to for discovery of legislative intention in the enactment amended.

Master and servant — Unemployment compensation

14. The 1941 amendment to provision in unemployment compensation law relating to seasonal benefits, disclosed legislative intention that until 1942 cessation of operation is essential to determination of seasonality, but that thereafter reduction of employment to the extent prescribed in the amendment will suffice, and that cessation of operation and reduction of employment are not the same thing.

Master and servant — Unemployment compensation

15. The provision in unemployment compensation law that when unemployment compensation commission, having determined seasonal period and fixed right to benefits to unemployed person of seasonal employer, shall modify requirements of right to benefits in such manner that total benefits will be in reasonable proportion to total contributions of employer, does not authorize commission to declare an employer seasonal in order to bring benefits paid to unemployed person into line with contributions made by employer, but commission can order that benefits be brought into line with employer's contributions only after a determination that employer is seasonal under test prescribed in the latter part of such provision.

Constitutional law — Statutes — Construction

16. In unemployment compensation proceeding, argument that fund may be depleted if employment in logging industry is not declared seasonal, and that excessive benefit payments are being made in logging industry, should be addressed to legislature and not to unemployment compensation commission or supreme court reviewing decree of circuit court sustaining order of commission.

Master and servant — Unemployment compensation

17. A commission, such as unemployment compensation commission, created by legislature to administer a statute, is wholly limited in its powers and authority by the law of its creation, and such a body is not vested with discretion to ignore or transgress such limitations, even to accomplish what the body may deem to be laudable ends.

Constitutional law — Statutes

18. If the unemployment compensation law as written is not workable, the remedy is with the legislature and not with the unemployment compensation commission or the courts reviewing decision of commission.

                  What is seasonal employment, note, 93 A.L.R. 308
                  39 C.J., Master and Servant, § 373
                

Before KELLY, Chief Justice, and BAILEY, LUSK and RAND, Associate Justices.

Appeal from Circuit Court, Clatsop County.

HOWARD K. ZIMMERMAN, Judge.

Unemployment compensation proceeding by Thomas Layman, opposed by the Crown Zellerbach Corporation. From a decree of the circuit court sustaining an order of the State Unemployment Compensation Commission denying in part the claim for unemployment compensation, Thomas Layman appeals.

REVERSED.

James T. Landye, of Portland (Green, Boesen & Landye, of Portland, on the brief), for appellant.

H. Lawrence Lister, Assistant Attorney General (I.H. Van Winkle, Attorney General, on the brief), for State Unemployment Compensation Commission.

Clarence D. Phillips, of Portland (Griffith, Peck & Coke, of Portland, on the brief), for Crown Zellerbach Corporation.

LUSK, J.

The plaintiff has appealed from a decree of the circuit court sustaining an order of the State Unemployment Compensation Commission which denied in part the plaintiff's claim for unemployment compensation. The case involves the construction of § 7 of the Unemployment Compensation Law (8 O.C.L.A. § 126-707) and the sufficiency of the evidence to sustain the commission's findings. Section 7 reads as follows:

"Benefits in seasonal and irregular employment. (a) Whenever the commission finds that on account of seasonal conditions, it is highly impracticable or impossible for the employer to operate for a period or periods of one year in length and the employer customarily operates only during a regularly recurring period or periods of less than one year in length, then the rights to benefits shall apply only to the longest seasonal period or periods which are customary in such operation, as determined by the commission. It shall be the duty of the commission to ascertain and determine, or redetermine, such seasonal period or periods for each such seasonal employer. When the commission has determined such seasonal period or periods, it also shall fix the right to benefits and the conditions required for the payment of benefits to unemployed persons of such employer, and shall modify the requirements of the right to benefit and the conditions required for the payment of benefits in such manner that the total benefits paid to such persons will be in reasonable proportion to the total contributions of such employer."

On December 29, 1937, the commission issued its ruling No. 24, in which, among other things, it determined that no benefits based on earnings of an employe in a "seasonal operation" should be payable to such...