Mr. HILL. Mr. Betts, let me tell you what little I know about this, too. In discussing this with the administrator from Ohio, I gathered that there is doubt, at least on his part, that Ohio is discriminating in any fashion. He is of the opinion that the Ohio law is not arbitrary and is not discriminatory. On the other hand, what the Federal statute proposed here would do, as I understand it, would give the Federal Government the right to cut off tax credit if the Secretary finds that Ohio is not in conformity with this general statute which Mr. Raushenbush described to you, which granted the States the right to cover maritime workers. Mr. BETTS. This proposed bill would do that, but the present law would not do that; is that right? Mr. HILL. The present law would not, as I understand it. This would allow the Secretary to make this kind of a determination, as to whether the State is actually being discriminatory or not. The Ohio administrator explained to us, and I hate to try to speak for him, that in his opinion the statute was all right. We didn't want to charge, and we do not charge in this recommendation, that Ohio is not complying with the original tenets of the law granting the States the right to cover maritime workers. All this does, in effect, is say to the Federal Government, "You have the teeth, now, to go in and look at the situation." They complain at the moment that there is discrimination and that there is nothing they can do about it. We haven't intended to prejudge the case at all. In effect, we are simply saying that if it is true that you have extended to the States the right to cover maritime workers with the reservation that they will be similarly treated with other employees, we think it only right that the Federal Government has the right to look at the situation and make a determination. Mr. BETTS. In other words, what you say is that in the State of Ohio, if the Secretary sees fit to go in after due notice to the unemployment administrator of the State he may make a finding it is not complying with Federal law and is discriminating against other seasonal workers in favor of maritime workers and, therefore, deny to the maritime workers the tax credit. Mr. HILL. Correct. We are not saying that Ohio is discriminating, because I am not certain whether they are or not. I want to make the record prefectly clear. Mr. COFFMAN. Let me add this: that this is one of the big reasons why we think there ought to be provision for judicial review. After the hearing of the Secretary you may still disagree with him and under our proposal you could go to court if you felt strongly enough about it, which you cannot do now. Mr. BETTS. I think that is an important contribution, too. It says on line 11, page 37 of the bill, that the Secretary of Labor certifies to the Secretary. Mr. BROWN. The Secretary of the Treasury. Mr. HILL. That would be to the Secretary of the Treasury for certification. Mr. KEOGH. If the gentleman will yield to me, that section 206 of the pending bill is an amendment to the Internal Revenue Code. Mr. BETTS. Thank you. Thank you, gentlemen. (The following decisions of the Board of Review of the Bureau of Employment Compensation, Columbus, Ohio, in the claim of Ned F. Babcock, et al., employees of the Northern Ohio Sugar Co., Findlay, Ohio, was received for the record.) STATE OF OHIO BOARD OF REVIEW, In re claim of Ned F. Babcock, et al., 2611 North Main Street, Findlay, Ohio. Social security No. 272-22-8666. Employer, Northern Ohio Sugar Co., Findlay, Ohio. DECISION On October 27, 1965, the administrator filed a timely application to institute a further appeal before the board of review, pursuant to the provisions of section 4141.28, Revised Code, from the decision of the referee dated October 20, 1965. Issue Seasonal employment. Upon consideration thereof, and upon a review of the entire record, the board concludes that said application to institute a further appeal should be disallowed. Decision Said application to institute a further appeal filed by the administrator in each of the following cases is hereby disallowed. In re claim of Ned F. Babcock, et al., 2611 North Main St., Findlay, Ohio. Social security No. 272-22-8666. Employer, Northern Ohio Sugar Co., Findlay, Ohio. CORRRECTED DECISION By decisions on reconsideration of various dates between February 18, 1965, and March 30, 1965, the administrator allowed applications for determinations of benefit rights on a nonseasonal basis for each of these claimants on the ground that claimants were following the same type of work for this employer both in and outside the reason provided in the determination of this industry as seasonal. He further assessed charges against this employer based on the combination of seasonal weeks and wages with nonseasonal weeks and wages and allowed such applications as nonseasonal. On various dates between February 24, 1965, and April 2, 1965, the employer filed timely appeals to the board of review. Hearing on the appeals was had on July 23, 1965, at Findlay, Ohio, after due notice given to all parties of time, place, and date. Appearances Six of the claimants appeared in person and all of the claimants were represented by Mr. George Freeman, president, local 293. Northern Ohio Sugar Co., was represented by L. F. Coon, cashier, and Mr. Robert Dose, of E. I. Evans & Co. Findings of fact On April 11, 1963, in case No. 214812, in the common pleas court of Franklin County, Ohio, in an action between Northern Ohio Sugar Co. and Donald B. Leach, administrator, bureau of unemployment compensation, the court found that Northern Ohio Sugar Co. is a seasonal employer in the 17-week period beginning the third Sunday in September in each year with respect to the processing of sugarbeets into sugar. The entry in that case reversed the decision of the administrator of July 18, 1962, and allowed the application for seasonal employment dated September 2, 1960, and left the seasonal period and other details to be determined by the administrator in conformity with its journal entry and the Ohio unemployment compensation law. This entry was approved by Northern Ohio Sugar Co., William B. Saxbe, attorney general, and attorneys for Donald B. Leach, administrator, bureau of unemployment compensation. Thereafter, the administrator, on August 20, 1963, issued his journal entry, reciting the action of the common pleas court and affirming the seasonal employment in this industry with a seasonal period of 17 weeks beginning the third Sunday in September of each year with respect to the processing of sugarbeets into sugar. He amended this journal entry on November 4, 1963, and in the amended entry, in the third paragraph, excluded from the operation of the seasonal limitation, "the service of any individual whose nature of employment may be performed during all or a part of the season and outside of the season." He further, in the fifth paragraph, set up a provision which limited the right to benefits to such periods of 17 weeks in the season in any case where claimant had more than 50 percent of his base period earnings in the seasonal period set out. He set up the qualifications for a seasonal claim to be 7 weeks of work in the base period with earnings of at least $140 and a benefit year of 9 times the weekly benefit amount plus an additional week for any 2 credit weeks worked beyond 7 weeks in the season. This qualification is in place of the normal requirement for a nonseasonal claim of 20 weeks of work in the base period and earnings of at least $400. In In paragraph 6 of this order, he set up permission for a claimant to combine seasonal and nonseasonal employment aggregating more than 20 weeks; to provide that such a claimant would be eligible for benefits outside the season. such case, charges for benefits paid during the season were charged to the seasonal employer and all other benefits were charged to the nonseasonal employer. This order was not appealed. The evidence at the present hearing establishes that Northern Ohio Sugar Co. operates two plants; one at Fremont, Ohio, and another at Findley, Ohio. These plants are concerned only with the making of beet sugar in the season and, outside the season, with the maintenance of the plant and the warehousing and handling of the sugar products for sale. Sugarbeets, following their harvest, which date is determined by the growing season in Ohio, must be processed within a very short time or they will spoil. The testimony in the instant hearing clearly establishes that the work performed by all of these claimants during the season is entirely different from the work performed by these same claimants for Northern Ohio Sugar Co. outside the season. The normal complement in each of the plants outside the season is from 50 to 60 employees. During the season, each plant employs as many as 200 people. Most of the claimants outside of the season, which the company calls the campaign, work in general laborer classifications. During the season they each have a specifically designated job having 60-568-66-9 to do with the reduction of the beets to juice and the reduction of the juice to sugar. None of the classifications occupied by any of these claimants during the season could be followed outside the season as that type of work is not performed outside the season. In all of these claims, the administrator has combined seasonal and nonseasonal weeks and wages and has charged Northern Ohio Sugar Co. as though no seasonal applications had been made, making no separation as to charges for seasonal work as different from nonseasonal and has used the seasonal credits where possible to add to the credit weeks of the claimant although, in some cases, the claimant has sufficient nonseasonal credit weeks to establish a valid application without use of the seasonal weeks. On none of these claims, has the administrator restricted the liability of the employer or the rights of the claimant by reason of the fact that part of the work was seasonal. REASON Issue: Validity of application, charges to employer, seasonal employment "Seasonal employment' means employment in an occupation in an industry which because of climatic conditions or because of the seasonal nature of such employment it is customary to operate only during regularly recurring periods of less than 36 weeks in any consecutive 52 weeks. Any employer who claims to have seasonal employment may file with the administrator of the bureau of unemployment compensation a written application for classification of such employment as seasonal. Whenever in any employment it is customary to operate because of climatic conditions or because of the seasonal nature of such employment only during regularly recurring periods of less than 36 weeks duration, benefits shall be payable only during the longest seasonal periods which the best practice of such industry will reasonably permit. The administrator shall ascertain and determine or redetermine, after investigation and due notice, such seasonable periods for each such seasonal employment. Until such determination by the administrator, no employment shall be deemed seasonal. When the administrator has determined such seasonal periods, he shall also fix the proportionate number of weeks of employment and earnings required to qualify for benefit rights in place of the weeks of employment and earnings requirement stipulated in division (R) of section 4141.01 and section 4141.30 of the revised code, and the proportionate number of weeks for which benefits may be paid. The administrator may adopt rules and regulations for implementation of this section." The administrator has allowed these applications as nonseasonal applications on the ground that the claimants performed work of a nature that could be performed during all or a part of the season and outside of the season in this industry. In doing so, he has relied on the third paragraph of his amended order, "Employer's Exhibit No. 1," in this hearing. The evidence clearly shows however that the work of each of these claimants was severable in nature as to its seasonal and nonseasonal employment. The seasonal work could only be performed in the season and the nonseasonal, which was performed outside the season, was such as might have been performed both in and out of the season but was available only outside the season with this employer. Claimants were engaged during the season in the making of sugar in various jobs which could only be performed during that period when the crop was available and could not have been performed at any other time of the year. The season of the industry is determined by the availability of the beets and by the fact that the product, until it is made into sugar will spoil and must be made into sugar in this season. The testimony will establish that the seasonal work performed by the claimants was not highly skilled; could be taught in a day or two, but the fact that it was not unique or highly skilled does not remove it from the classification of seasonal work. It is seasonal not only because of the nature of the work but because of the time when it must be performed. The work performed by these claimants outside the season dealt with storage, warehousing, and handling for sale of the product which had become stabilized and this work could be performed at any time in the year for this or other employers who had the finished product available. It is therefore clear that the administrator has not followed in these determinations the third paragraph of his own order. The exclusion of these claimants from the seasonal order on the basis used in the decisions on reconsideration was improper. In addition to this error of the administrator, it appears that his determinations are improper on another ground. The sole, apparent reason for the seasonal statute in the law was to give protection to a seasonal employer who, because of the limited nature of his work, could offer regular work only during the season and should be charged only for unemployment during that period. The effect of the seasonal order therefore should be to leave the seasonal employer in a protected status and not as liable as the regular employer under nonseasonal employment classifications. The work of this employer is seasonal in 17 weeks in each year; in 35 weeks he furnishes some nonseasonal work. Like all nonseasonal employers, he is liable for claims to any individual who works in 20 or more weeks in the nonseasonal period of the 35 weeks, and a maximum claim may be perfected against him on a regular basis by working 32 of the 35 nonseasonal weeks. He is also liable to any individual on a seasonal claim who works in 7 or more weeks in the 17-week period of the season. This is a liability the ordinary nonseasonal employer does not bear. By the administrator's journal entry, the seasonal employer is also liable for an additional type of claim which vitiates entirely any protection he might gain by the court's decision that he is a seasonal employer. The sixth paragraph of the journal entry permits a valid application based on any combination of seasonal and nonseasonal weeks exceeding 20 weeks, computed as an ordinary claim and payable for unemployment outside the season, the only limitation being that claims outside the season are charged to the nonseasonal employer and in the season, charged to the seasonal employer. However, the weekly benefit amount and duration of benefits are increased for any claim by the addition of the seasonal weeks and wages and, to the extent of this increase in weekly benefit amount and duration of benefits, violate the purpose of the original determination of seasonal employment. By reason of the employer's liability under this sixth paragraph, he is, with only minor possible differences, liable as widely as a nonseasonal employer and in addition has the burden of paying seasonal claims in the season based on 7 to 17 weeks which the ordinary nonseasonal employer is entirely free of. Any construction of the language of the statute which so subverts its purpose cannot be proper. This statute is clear and unequivocal. It permits seasonal or nonseasonal claims or one in place of the other. It does not provide for combining of the weeks of qualification and earnings in the two types of claim as has been done here. Section (C) of 4141.33, Revised Code of Ohio, does permit such combination in the claims of seamen, but in such combination, all of the claim is seasonal if more than 50 percent of the base period weeks are seasonal and the claimant can then claim only in the season. In addition, this is a specially legislated section limited only to seamen claims and does not give the administrator authority to apply it to general claims. The sixth paragraph of the administrator's journal enry is improper and assumes powers not granted under section 4141.33 (A), Revised Code of Ohio. It furthermore violates the clear provisions of that section which provides only for seasonal claims in place of regular claims. [Referee's emphasis.] The validity of the journal entry in paragraph 6 is not aided by the fact that it was not appealed and thus became final. Paragraph 6 of the journal entry assumed powers not granted and such unauthorized action can never become final. To hold otherwise would be to confirm in the administrator the power of legislation. Decision Decision on reconsideration of various dates between February 18, 1965, and March 30, 1965, allowing applications on a nonseasonal basis are hereby modified as follows: Ned F. Babcock-seasonal claim; basic weekly amount, $42; dependency allowance, $6; weekly benefit amount, $48; duration 9 weeks. Total potential charge is $576, all to Northern Ohio Sugar Co. John R. Bame-nonseasonal claim; basic weekly amount, $32; dependents allowance, $3; weekly benefit amount, $35; duration 23 weeks. Potential charge to Northern Ohio Sugar Co. is $832. Potential charge to Hancock Brick & Tile is $70. Carl O. Butler-seasonal claim; basic weekly amount, $42; dependents allowance, none; weekly benefit amount, $42; duration 9 weeks. Total potential charge is $504, all to Northern Ohio Sugar Co. |