Works v. Indus. Comm'n

• Decision Date: 21 June 1939
• Citation: 232 Wis. 71,286 N.W. 593
• Parties: SLOCUM STRAW WORKS v. INDUSTRIAL COMMISSION et al.
• Court: Wisconsin Supreme Court

232 Wis. 71

286 N.W. 593

SLOCUM STRAW WORKS

v.INDUSTRIAL COMMISSION et al.

Supreme Court of Wisconsin.

June 21, 1939.

Appeal from a judgment of the Circuit Court for Dane County; Alvin C. Reis, Judge.

Proceeding by the Slocum Straw Works against the Industrial Commission of Wisconsin and another to review an award of the Industrial Commission allowing respondent Mrs. Marie Rybacki to recover unemployment benefits. From an order affirming order of the Industrial Commission, the Slocum Straw Works appeals.-[By Editorial Staff.]

Reversed and remanded with direction to dismiss the application for unemployment benefits.

The plaintiff-appellant brings this action against the industrial commission of Wisconsin and the respondent, Mrs. Marie Rybacki, to review an award of the industrial commission allowing Mrs. Rybacki to recover unemployment benefits under Chapter 108, Statutes of 1937. The circuit court affirmed the order of the industrial commission. The material facts are stated in the opinion.Wood, Warner & Tyrrell and Jackson M. Bruce, all of Milwaukee, for appellant.

Stanley Rector and Arthur Barber, both of Madison, for respondents.

MARTIN, Justice.

The facts are not in dispute. In brief, they are as follows: Mrs. Rybacki was employed by appellant from December 11, 1937, to May 8, 1938, during which period she had worked fifteen hours or more per week for not more than twenty weeks, which was the total period of employment during the fifty-two weeks preceding May 8, 1938. Mrs. Rybacki subsequently made application to the industrial commission for unemployment compensation benefits under Chapter 108, Stats. of 1937. Appellant notified the commission in writing of its rejection of the claim upon the ground that Mrs. Rybacki was, after leaving its employ, customarily self-employed, and, therefore, not eligible for unemployment benefits. On May 15, 1938, a deputy designated by the industrial commission, without a hearing, determined that her claim for unemployment compensation was valid and approved a weekly benefit rate of fifteen dollars; also determined that the number of credit weeks against which benefits might be charged was nineteen, and that $71.25 was the maximum amount of benefits which might become payable. Plaintiff appealed from the determination of the deputy to the appeal tribunal appointed by the industrial commission to hear and determine such appeals pursuant to law. A hearing was had before such appeal board at which evidence was taken. The appeal tribunal composed of a deputy appointed by the industrial commission, a representative of employers and a representative of labor, made and filed a decision in writing in which the board held that the employee, Mrs. Rybacki, was not customarily self-employed within the meaning of sec. 108.04 (5) (g), Stats., and that she was therefore entitled to unemployment benefits. Appellant appealed from the decision of the appeal board to the industrial commission. The industrial commissionreviewed the evidence and without further hearing, concluded that the findings of fact of the appeal tribunal were supported by the evidence and affirmed the decision of the appeal tribunal. Thereupon, this action was brought to review the award of the industrial commission. The trial court affirmed the findings and order of the industrial commission. The only findings made are as follows:

“The employee is a married woman living with her husband and child. She has been seasonably employed by the employer who is engaged in the manufacture of straw hats. The past season she started working in December and was laid off in April.

“The employee and her family live at her father's home. No rent is paid for the use of the house, but the employee's father lives with her as a member of the family. This arrangement was in effect during the time the employee worked for the employer as well as when she was unemployed. While not employed by this employer, her time was spent in the performance of her household duties.

“In the 52 weeks preceding the seasonal layoff here in question, there were not more than 20 weeks in which she worked 15 hours or more for the employer.

“*** The arrangement the employee had with her father with reference to the use of his house was not of such a character to alter the employee's status as a housewife, nor to change a family relationship into a business enterprise.”

Upon these specific findings, the appeal tribunal, also the industrial commission, concluded that the employee was not customarily self-employed within the meaning of sec. 108.04(5) (g), Stats., while engaged in the performance of her household duties.

There are further material undisputed facts. The appellant company is engaged in the manufacture of women's hats. In this industry, there are two separate periods of industrial activity, called the spring and fall seasons. In the spring season, the manufacture is confined almost exclusively to the fabrication of women's hats made from straw or other braid which is sewn on machines operated by women operators. In the fall, the season's hats are made from felt materials which do not require machine sewing operators. The spring season begins in December and gradually reaches its peak in February or March and ends in April or the forepart of May. It is a highly seasonal industry and after the close of the spring reason, there is no work for the sewing operators until the following December. Mrs. Rybacki was a sewing operator and had worked for the appellant during each spring season for the past ten years. She testified:

“Q. So that your sole occupation when not working at Slocum Straw Works is that of housewife, taking care of your child and your home? A. And my home, Yes.

“Q. And did you make any attempt to get other employment during the time you have not been working at the factory? A. No, I haven't, not as long as I have been at Slocum's. I have before that, previous to that, I worked in between at other places, but while I have been at Slocum's that is the only thing I have done-is seasonal work at Slocum's.

“Q. So that during the past nine years, while you have been working at Slocum Straw Works, you have not sought to obtain any other employment? A. No, I have not looked for anything.”

During the time she was working, she employed a maid to take care of her child and as soon as she was finished with her seasonal work, the maid was laid off.

During the period in question, Mrs. Rybacki's husband conducted a business of his own in which he employed three or four men. Her father, sixty-four years old, owns the home where she and her family live, and is a member of the family, contributing the use of the home for his care and support. The husband pays the bills for the support of the family. Mrs. Rybacki testified “she used her earnings for extra expenses, clothing, movies, the baby, company and things like that.”

Since the facts are not in dispute, we have the single question of law whether Mrs. Rybacki is ineligible for unemployment compensation benefits as a person customarily self-employed, or, in other words, what is the meaning of the term “customarily self-employed” as used in the statute? Sec. 108.04(5) (g) provides: “(g) An employe shall not be eligible for benefits from a given employer's account for any given week, if he is customarily self-employed, and there have been not more than twenty weeks in which he worked as much as fifteen hours per week for such employer, and he has worked at his self-employment thirty or more weeks, out of the fifty-two weeks preceding termination of his employment by such employer, and can at such termination reasonably return to his customary (or other similar) self-employment.”

While the purpose of unemployment compensation is obvious, the legislature enacted sec. 108.01(1), (2), and (3), Stats., as a guide to the interpretation and application of Chapter 108, Stats. In subsec. (1), the policy of the law is thus stated: “(1) Unemployment in Wisconsin has become an urgent public problem, gravely affecting the health, morals and welfare of the people of this state. The burden of irregular employment now...