Johnson v. Board of Review of the Industrial Commission

320 P.2d 315, 7 Utah 2d 113, 1958 Utah LEXIS 115

• Court: Utah Supreme Court
• Decided: January 15, 1958
• Docket: 8553
• Status: Published

Opinions

CROCKETT, Justice.

Milton E. Johnson seeks review and reversal of the decision of the Board of Review of the Industrial Commission denying him unemployment compensation.¹

Mr. Johnson had worked regularly for the United States Fuel Company in its mine at Hiawatha, Utah, for approximately ten years prior to being laid off due to a reduction in force on March 30, 1956. He was thus involuntarily unemployed and ordinarily, would have been eligible for unemployment compensation benefits. His application was rejected on the ground that he was not “unemployed” within the meaning of the Employment Security Act² by reason of his operation of a farm as he had done during his employment.

The fundamental proposition contended for by the Commission is that one who is self-employed is not “unemployed” as contemplated by the Act. It relies on a number of cases decided under statutes similar to ours which hold that where a person divides his time between working for another and an enterprise of his own, a lay-off does not make him eligible for unemployment benefits.³ This is so because he can rely upon his own efforts and the income therefrom for support, which supplants the succor intended under the Act. Illustrative is the recently decided case of Hatch v. Employment Security Agency,⁴ in which the Idaho court held that a carpenter who built a home during a period of lay-off and acquired a $7,500 equity of its total value of $16,500 was not unemployed and entitled to benefits under the Idaho Act. Another example is the case of Phillips v. Michigan Unemployment Compensation Commission, ⁵ wherein the court held that an attorney who had worked in a manufacturing plant from 1944 until 1947 and was laid off, and who returned to his law practice but registered for work and filed a claim, was not unemployed within the meaning of the Act, saying:

“We believe that the words ‘unemployed individual’ are used in § 28 in their ordinarily accepted sense and that, taken in that light, one who is engaged in rendering service for remuneration or who devotes his time to the practice of a profession by which a living is customarily earned cannot be said to be unemployed.”

The cases are based upon the rationale that the purpose of the Employment Security Act, as stated by the declaration of policy,⁶ is to lighten the burdens of unemployment upon the worker and his family and to maintain purchasing power in the economy. The design is to nip in the bud the descending economic spiral which may result from unemployment and consequent loss of purchasing power which tends to ramify in chain reaction form throughout the economy. It is reasoned, however, that the act was not intended to go beyond that purpose, and that unless it is carefully administered, the fund will be kept depleted so that it will not be able to fill in the breach and stabilize the economy in emergencies as intended.

It is suggested that if one can follow two occupations, and upon termination of one, receive compensation while working and receiving income from the other, he may so manage his jobs and terminations as to be employed, receiving income from one, and compensation for being unemployed, from the other, a large part of the time. Another difficulty is that benefits under the Act might be used to subsidize self-employment enterprises which are actually in competition with the business which must bear the burden of providing the unemployment compensation. It is obvious that if a worker has two alternatives: self-employment, under which he can receive benefits accrued from prior employment; or going to work for an employer, which course would deprive him of such benefits, he will choose the former.

We are in accord with the authorities relied upon by the Commission which bold that, under usual circumstances, one who is engaged in self-employment as an occupation is not “unemployed” within the meaning of the Act, and it is undoubtedly true that the Act was not intended to discriminate against other businesses by subsidizing self-employment enterprises.

Conceding the above principles, there yet exists a critical problem in the instant case as to what extent an employed person might make some industrious use of his spare time for the benefit of himself and family before he is rendered ineligible for benefits should he lose his regular job.

Although the term “self-employed” is nowhere defined in the Act, Sec. 35-4-22 (m) (1), U.C.A.1953 defines the word “unemployed” as follows:

“an individual shall be deemed 'unemployed' in any week during which he performs no services and with respect to which no wages are payable to him, or in any week of less than full-time work if the wages payable to him * * * are less than his weekly benefit amount.”

Section 35-4 — 22(p) defines wages as:

“All remuneration for personal services, including * * * the reasonable cash value of any remuneration in any medium other than cash. * * * ”

Thus, applying the above statutes to one who is engaged in part time farming, it would seem that the farmer should be considered “unemployed” and eligible for benefits when the income from his farm operation is less than the weekly unemployment benefit amount he would receive under the Act. This does not mean that he would be entitled to the entire weekly benefit amount, but rather under Sec. 35-4-3 (c), his weekly income from his own efforts, less $6.99 per week, would be deducted from the weekly benefit amount, This conclusion is in conformity with the policy of the Act, as discussed above. Since it was designed to provide minimum sustenance to the unemployed individual, one receiving less than his “weekly benefit amount” should be considered eligible, whether employed by another or self-employed.

The only part of the Act which specifically refers to self-employment is Sec. 35-4 — 5(c) U.C.A.1953 which provides:

“An individual shall be ineligible for benefits * * * if the commission finds that, being unemployed and otherwise eligible for benefits, he has failed without good cause, * * * to return to his customary self-employment (if any) when so directed by the commission.”

The plain purpose of this section was to prevent a person with a potential source of income from sitting back, idly twiddling his thumbs, and collecting unemployment compensation. Since the Act fails to define self-employment, the Commission, under power granted it to prescribe regulations in reference to partial and total unemployment,⁷ has adopted a rule that one who engages in any calling, business or profession which is potentially profitable so that it may add substantially to his income, is self-employed and therefore not “unemployed,” Such regulation seems reasonable and necessary. However, in light of the policy considerations previously discussed and the definition of the term “unemployed” as contained in the Act, it should not be so applied to entirely bar recovery to an individual who, upon being involuntarily unemployed from his regular job, attempts to engage in an independent calling but fails to earn as much income as his weekly benefit amount otherwise would be. Of course in either case, the individual claiming benefits must hold himself available for any employment that would pay greater income, just as Mr. Johnson did in the instant case. Under such circumstances the income from self-employment should be taken into account, just the same as though the applicant were employed by another, and if his income does not reach his weekly benefit amount, he should be allowed the difference. As previously mentioned, other business is not to be discriminated against in favor of self-employment by allowing compensation in the latter and denying it in the former; by the same token, where only partial income is available from either source, we can see no reason why benefits should be allowed to one partially employed by another but denied if he works for himself. That would subsidize working for others and penalize self-employment, and if self-employment were followed, would not fulfill the purposes of the Act.

It is also recognized that a fair administration of the act requires the department, in determining the income from self-employment, to allocate the potential income over the period it was earned even though not actually received then.⁸ Farming is a good example. That most of the farm produce may be harvested and sold in the fall, would not mean that the farmer should be considered as having no income in the other seasons. In this and other occupations, if such allocation were not allowed, the self-employed person could defer the actual receipt of income, or deliberately manipulate it, so as not to receive it during the benefit period.

The prerogatives of the Commission are necessarily to be exercised in accordance with the social purposes of the act. For the same reasons that we have held the Workmen’s Compensation Act, U.C.A.1953, 35-1-1 et seq. is to be liberally construed to effectuate its purposes, the Employment Security Act should also he liberally construed and administered.⁹ The proceedings conducted under the aegis of the Industrial Commission are not adversary in nature as are court trials, but are intended to be impartial investigations of the facts. It is therefore not strictly proper to speak in terms of burden of proof as ordinarily understood, yet there are certain basic procedural concepts necessary to be kept in mind as a guide in making the determination in each case.

When it appears from the investigation that the applicant has been in covered employment for the requisite period, and that he has become involuntarily unemployed, he is prima facie entitled to benefits, which should be allowed him unless the investigation discloses something which would render him ineligible by reason of other employment, or refusal to accept available employment. Doubts should be resolved in favor of coverage of the employee. With this in mind, we proceed to examine the applicant’s contention in his petition for review that “The findings * * * are not supported by the evidence,” aware however that such findings should not be disturbed by us if they find any reasonable support in the evidence.¹⁰

Mr. Johnson’s benefit amount, if totally unemployed, would have been $33 per week. The appeals referee found that the estimated gross value of his farm products was $1,793 which, allocated over the year, gives in round figures $34 per week; just $1 per week over the benefit amount. The farm may seem large by some standards because it contained 254 acres. That fact is illusory inasmuch as only 40 acres, made up all of small scattered tracts of 3 to 5 acres each, was tillable, the remainder being waste land. Apparently for the purpose of demonstrating that the applicant’s income on a yearly basis exceeded the $33 of his weekly benefit amount, the referee made findings of the farm products (most of which were consumed on the farm) and assigned values to them as follows:

5 acres oí alfalfa, with a yield of 2 tons to the- acre, valued at $20.00 per ton. $200.00

4 acres of wheat, with a yield of 20 bushels, valued at $1.90 per bushel. 152.00

5 acres of corn silage, valued at $40.00 per acre. 200.00

Sale of cream. 150.00

6 calves, at average value $40.00. 240.00

8 pigs from the spring litter, valued at $8.00. 64.00

Total $1012.00

It seems incontestable that plaintiff is-right in his contention that the $240 item relating to calves, should not be considered as income. The testimony plainly shows that this figure represented what the calves were worth, not their increase in value. They obviously were not the natural increase of one year from Johnson’s two cows, but were acquired and kept for the .purpose of building up his livestock. In determining income it is certainly not proper to include the value of business assets. Deducting the $240 from the $1,012 income figure, leaves only $772 of definitely ascertained income.

In addition to those listed items upon which an agreed price or value was set, the record also shows that the farm produced 15 acres of barley and oats, milk and eggs for own consumption, and 6 pigs from the fall litter. The record is devoid of any indication of the value of these items. In fairness to the applicant, neither the department nor this court can arbitrarily conclude that their value exceeded his weekly benefit. Were we to speculate upon such income, which we will not do, it would require assigning over $1,000 to these additional items to bring the total income for the year high enough to exceed plaintiff’s weekly benefit entitlement.

Another very important consideration is the fact that the finding is as to gross income. It is common knowledge that there are operation costs in farming, the same as any other type of business. Johnson testified that seed and fertilizer alone for the. coming year would run around $400. He operated a tractor and other farm machinery which involved expenses in operation, upkeep and repairs, and depreciation. These costs of operation should be taken into account in making the determination as to Johnson’s income from self-employment.

There is another particular about which the record is so uncertain that no satisfactory finding can be made. Mr. Johnson did not operate the farm by himself. Rather, it was a family project. His 15-year old son and his wife did much of the farm work, even to the extent of running the tractor. The entire farm income should therefore not be attributed to him personally, but there ought to be some fair and reasonable allocation of the income produced by his efforts and that produced by his wife and son.

In view of the uncertainty which exists as to Mr. Johnson’s income from self-employment, this cause is remanded for the purpose of making a more definite determination of the income properly assignable to him, and upon the basis thereof to make such order consistent with the views herein expressed, as may seem appropriate.

No costs awarded.

WADE, J., concurs.

1 . Regular procedure was followed: petitioner’s claim was first rejected by a department representative; then by Appeal Referee; and finally by Board of Review.

2 . 35-4, U.C.A.1953.

3 . Muchant v. Unemployment Compensation Bd. of Rev., 175 Pa.Super. 85, 103 A.2d 438; Shadowens Unemployment Comp. case, 177 Pa.Super. 49, 110 A.2d 258; Kapera v. Unemployment Comp. Rev. Bd., 178 Pa.Super. 508, 116 A.2d 238, 239; Martin v. Unemployment Comp. Bd. of Rev., 174 Pa.Super. 412, 101 A.2d 421.

4 . Idaho, 313 P.2d 1067.

5 . 1948, 323 Mich. 188, 35 N.W.2d 237, 239.

6 . 35-4-2, U.C.A.1953.

7 . 35-4-22(m) (2), U.C.A.1953.

8 . See Hatch v. Employment Security Agency, note 4 supra.

9 . See Jones v. California Packing Corp., 121 Utah 612, 244 P.2d 640 and authorities referred to therein.

10 . Ibid.