Gorski v. North Carolina Symphony Society, Inc.

310 N.C. 686 | N.C. | 1984

MARTIN, Justice.

We hold that the trial judge properly found claimants were entitled to unemployment benefits, and we therefore reverse the decision of the Court of Appeals.

The appellees argue that in reviewing unemployment benefit claims the superior court acts as an appellate court and cannot consider a basis for relief not presented in the administrative process. For this reason, they contend the superior court could not base its decision upon the theory of a “group temporary layoff’ because that issue was not presented to the Commission. In adopting this argument, the Court of Appeals relied upon Grissom v. Dept. of Revenue, 34 N.C. App. 381, 238 S.E. 2d 311 (1977), disc. rev. denied, 294 N.C. 183 (1978). Grissom involved a petition for review in the superior court of the dismissal of claimant as an employee of the Department of Revenue. Upon appeal to the Court of Appeals, Grissom contended that his petition was actually a complaint and could be construed to contain a claim that he was fired because of his exercise of free speech. The Court of Appeals held that because this issue was not before the superior court, he could not do so upon appeal, relying upon Lawson v. Benton, 272 N.C. 627, 158 S.E. 2d 805 (1968). Lawson was not an administrative review case but involved an automobile collision. The defendant sought to argue in the Supreme Court that an issue of contributory negligence should have been submitted to the jury. This Court pointed out that defendant had not pleaded contributory negligence and did not tender an issue on it to the court, did not except to the issues submitted nor request an instruction on that theory, and held that defendant could not raise that issue on appeal.

Civil cases such as Lawson are distinguishable from the proceeding here at bar. Parties, unless allowed to amend, must prove their case according to their allegations. Oil Co. v. Miller and Batten v. Miller, 264 N.C. 101, 141 S.E. 2d 41 (1965). In this administrative proceeding there are no pleadings required. The function of the superior court upon review is to ensure that the Commission properly construed and applied the applicable law in reaching its decision, as well as determining whether the evidence supports the findings of fact and deciding whether the facts found support the conclusions of law and the Commission’s decision. Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 289 S.E. 2d 357 (1982). In contrast to the requirements of normal civil litigation, the statute governing unemployment proceedings reads in part: “[T]he conduct of hearings and appeals shall be in accordance with regulations prescribed by the Commission for determining the rights of the parties, whether or not such regulations conform to common-law or statutory rules of evidence and other technical rules of procedure.” N.C. Gen. Stat. § 96-15(f)(Cum. Supp. 1983). Contrary to Grissom, supra, there was abundant evidence before the deputy commissioner to require a determination of whether the “group temporary layoff’ regulations should be applied in this proceeding. The issue was before the deputy commissioner, but he failed to recognize it and thereby erred.

We note that in this proceeding claimants did not receive a hearing before the claims adjudicator prior to the hearing before the deputy commissioner. Although this procedure was lawful, it may have prevented all of the theories for relief from being fully developed during the administrative hearing. Nevertheless, Symphony by its evidence, summarized above, demonstrated that claimants had not been discharged from employment but, rather, were still employees of Symphony during the five-week period and thereafter pending the commencement of the 1981-82 season. Symphony only intended to reduce the 1980-81 season by five weeks because of the lack of operating funds. In so doing, they effectively placed the claimants in the status of a “group temporary layoff.”

By their appeal to the superior court, claimants directly raised the issue of whether they were a part of the labor force, considering their continuing job attachment with the Symphony. The resolution of this issue affects the determination of whether the court properly applied the “group temporary layoff’ regulations to this case. We hold that the issue of “group temporary layoff’ was properly considered by the superior court.

We now turn to the issue of whether the superior court correctly held that the claimants were entitled to benefits under the “group temporary layoff’ regulations. Pursuant to N.C.G.S. 96-4(a), the Commission has promulgated the following pertinent regulations:

1.24 — “Temporary Layoff’ is a period of unemployment occurring when one or more workers, because of lack of work during a payroll week as established by the employer, are partially or totally unemployed but are retained on the payroll and are considered by the employer to be continuing employees.

1.15 — “Group Temporary Layoff’ is a temporary layoff involving twenty (20) or more workers.

9.10 —Whenever a group of twenty (20) or more workers is either partially or totally separated or temporarily laid off from employment at the same time, the employer shall notify the local Employment Security Office prior to the date of separation or layoff. . . .

10.16 —Unless the employer is allowed by the Commission to file claims on machine readable media, any worker who is involved in a group temporary layoff of one or more payroll weeks shall report to the local Employment Security Office or a designated point of service on a date and time specified by the Commission in a notice posted on the business premises of the worker’s employer. The worker shall file an initial or continued claim for benefits on a form provided or approved by the Commission. The filing of a claim shall constitute a constructive registration for work. If a temporary layoff of total unemployment exceeds four consecutive payroll weeks, the individual shall be considered to have been separated from employment and an actual registration must be taken as of the first day of the fifth consecutive week. . . .

The Commission found as facts that: (1) The claimants are all tenured musicians with the Symphony. (2) The Symphony can-celled the master contract, reducing the 1980-81 season by five weeks, because of lack of operating funds. (3) The claimants were not paid for the last five weeks of the season. (4) The Symphony and claimants intended that claimants would be employed by Symphony for the 1981-82 season. (5) Symphony assured all of the musicians that the required funding would be available for the 1981-82 season as previously scheduled under the 1980-83 master contract. (6) Claimants have continued to receive full benefits under the master contract (except salary) during the five-week period, including sick leave, disability program, long term disability program, maternity leave, health insurance, life insurance, retirement plan, instrument insurance, and workers’ compensation. (7) A substantial majority of the claimants have participated in concerts during the five-week period and the proceeds from these concerts have been paid to the Symphony for distribution to the participating musicians. (8) Eight claimants have been employed by Symphony for two to five seasons, forty claimants for five to ten seasons, and ten for more than ten seasons. (9) In the past, claimants have continued to be employed by the Symphony even when the master contracts had expired and prior to the execution of new contracts. It was stipulated that all of the claimants had signed binder contracts with the Symphony for the 1981-82 season.

Based on these findings, the Commission properly concluded that claimants had been laid off their jobs for the final five weeks of the 1980-81 season due to lack of work available as a result of insufficient funding.

The above findings and conclusion support the superior court’s conclusion that claimants were in a “group temporary layoff’ during the five-week period. The Commission’s conclusion that claimants were not a part of the labor force because of their continued job attachment to the Symphony buttresses this holding. This is true even though the Symphony failed to notify the Employment Security Office as required by regulation 9.10. An employer cannot defeat the rights of employees to benefits under the statute by failing to comply with the statute or the rules and regulations duly promulgated by the Commission. If the facts support the application of the regulations, they will be applied regardless of the intent of the employer.

The purpose of the “group temporary layoff’ regulation is to allow an employee to receive unemployment benefits for a period of no more than four weeks without proving that he is available for work in the sense of permanent full-time employment elsewhere. This is based upon the theory that the employee is still employed and therefore is not a part of the labor force. The employee is automatically entitled to benefits for up to four weeks (less any waiting period mandated by the statute) provided he files his claim in accordance with the regulations, which is conceded in this proceeding. N.C. Empl. Sec. Comm. Reg. 10.16 (1981).

Symphony also argues that the Commission regulations concerning “group temporary layoff’ are unconstitutional. The record discloses that this issue was not raised before the superior court. It was first raised in the Court of Appeals; however, that court did not pass upon it. Constitutional issues may not be raised for the first time in the appellate division. Wilcox v. Highway Comm., 279 N.C. 185, 181 S.E. 2d 435 (1971). This is in accord with the decisions of the United States Supreme Court. Edelman v. California, 344 U.S. 357, 97 L.Ed. 387 (1953).

We hold that the superior court judge did not err in concluding that claimants were on a “group temporary layoff’ pursuant to the above regulations for the five-week period in question.

The decision of the Court of Appeals is reversed, and this cause is remanded to that court for reinstatement of the judgment of the superior court and for further remand to the superior court for compliance with its judgment.

Reversed and remanded.