Mason v. City Cartage Co., 18500

• Decision Date: 18 February 1954
• Docket Number: No. 18500,18500
• Citation: 117 N.E.2d 387,124 Ind.App. 314
• Parties: MASON v. CITY CARTAGE CO., Inc. et al.
• Court: Indiana Appellate Court

Page 387

117 N.E.2d 387

124 Ind.App. 314

MASON v. CITY CARTAGE CO., Inc. et al.

No. 18500.

Appellate Court of Indiana, In Banc.

Feb. 18, 1954.

Charles W. Symmes and Robert D. Symmes, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., William S. McMaster, Deputy Atty. Gen., for appellees.

CRUMPACKER, Chief Judge.

This is an appeal from a decision of the liability referee of the Indiana Employment Security Board. The sole question involved is whether the appellant is a 'successor employer' of the appellee City Cartage Company, Inc. whereby, under pertinent provisions of the Employment Security Act, Burns' Ann.St. § 52-1525 et seq., he is entitled to have assigned to him the same rate of contribution as was assigned to said appellee during the calendar year 1953 and to have set over to him a part of said appellee's experience fund accumulated by contributions from the wages of certain employees of said appellee now employed by the appellant.

The facts are undisputed and may be summarized as follows: The appellant is engaged in the pickup and delivery of freight brought into the Indianapolis area by four forwarding companies. He began such business on March 2, 1953, under the terms of separate contracts, executed on said day, with each of said forwarding companies. Prior to February 28, 1953, this identical service had been performed for said forwarding companies by the appellee City Cartage under unassignable contracts identical with those now held by the appellant. Said appellee, while it retained said business, employed nine men whose exclusive duties were to service said contracts. Thirty days prior to February 28, 1953, which fell on a Saturday, the appellee City Cartage notified each of said forwarding companies of its intention to terminate its contracts with them effective as of said date and on the following Monday, March 2, 1953, the nine men, who, until February 28, 1953, had been employees of City Cartage, entered the employ of the appellant and continued performing the same work for him as they had previously done for City Cartage. The above transactions did not involve the sale or lease of any of the physical assets of City Cartage which continued to carry on the remaining part of its business. The appellant and City Cartage agreed that the rights and obligations of a labor union contract between City Cartage and its employees would be taken over and assumed by the appellant as far as it affected the nine former employees of City Cartage who went to work for the appellant on March 2, 1953. During the transition there was no cessation of the business or lay-off of employees. City Cartage merely quit on Saturday and the following Monday the appellant took up where City Cartage left off and continued the operation of the same business with the same personnel.

On these facts the liability referee held that the appellant is not a successor employer of City Cartage and is not entitled to be assigned the rate of contribution which was assigned to City Cartage for the calendar year of 1953, nor to any part of its experience account. This decision is challenged as being contrary to law.

Sec. 52-1531a, Burns' 1951 Replacement Supp. defines 'successor employers' as follows:

'Any employing unit (whether or not an employing unit at the time of acquisition) which acquires a distinct and segregable portion of the organization, trade or business within this state of another employing unit which at the time of such acquisition is an employer subject to this act ( § 52-1525-52-1563b), provided, that such other employing unit would have been an employer under section 701 ( § 52-1531) if the portion acquired had constituted its entire organization, trade or...