Ira M. Elder, a sheepshearer, made application for unemployment compensation. He named Frank E. Roberts, plaintiff herein, as his employer. The latter refused to make the required employer's report. A hearing was had before an appeal tribunal. The decision was adverse to the plaintiff. The appeal examiner held that Roberts was an employer subject to the Unemployment Compensation law; that Elder was an employee of Roberts; and that Elder's services were not agricultural labor, therefore not exempt from the law. Roberts sought an appeal to the Industrial Commission. That Commission denied his application. Such denial in effect affirmed the decision of the appeal tribunal. The case is before us upon Writ of Review.
The Unemployment Compensation law of this State applicable to this case is found in Chapter 1, Special Session Laws of Utah 1936, as amended by Chapter 43, Laws of Utah 1937. We are not concerned with subsequent amendments. Hereafter we shall refer simply to sections of the law without quoting the title. *Page 436
The transcript of the testimony in this case is silent upon the question of whether Roberts was an employer as defined in Section 19(i)(1). That Section reads:
"(i) `Employer' means:
"(1) Any employing unit which for some portion of a day, but not necessarily simultaneously, in each of twenty different weeks, whether or not such weeks are or were consecutive, within either the current or the preceding calendar year, has or had in employment four or more individuals, irrespective of whether the same individuals are or were employed in each such day."
Apparently it was thought that so long as evidence upon that question was on file in the office of the Industrial Commission, in the form of reports by Roberts as a hotel proprietor, it was unnecessary to introduce those reports in evidence; that they could be "judicially noticed" and attached to 1 the record. If such was the thought, it was an error. Each record of trial under this law should be complete in and of itself. Each element necessary to sustain an order by the tribunal or commission, under this law, should be supported by testimony, exhibits, or stipulation, introduced at the hearing. The rule is no different than that in industrial accidents. The rule in the latter cases may be found in Spencer v. IndustrialCommission et al., 81 Utah 511, 20 P.2d 618. The effect of failure to apply this rule is illustrated by this Roberts case. Counsel for Roberts objects to the decision upon the ground that there is no proof that Roberts is such an employer — and as a matter of fact there is no such proof. It has been assumed from other records. If properly before us, we could pass upon the weight of the evidence in determining that question.
The main issue in this case is not so much a question of interpretation of the terms of the law, as a question of the identity of the employer. If we find that Roberts was the employer of Elder, then we are met with the question of whether or not Elder's services were exempt as agricultural labor. *Page 437
Was the contract of employment in this case between Roberts and Elder, or between the sheepmen and Elder? 2 The facts are these:
One Heaton owned a shearing corral at Watson, Utah. Roberts owned certain overhead machinery used in running sheep shears and combs. They entered into a contract whereby Roberts paid Heaton 1 1/2c per head for sheep sheared at the corral. Heaton maintained a booking arrangement wherein sheepmen registered for the use of the corral. The sheepmen rented the corral from Roberts and paid him 6c per head for its use, for board for the shearers and for the use of Roberts' machinery in running the shears and combs. The shearers furnished their own shears and combs. Roberts or his brother would act as grinder, and sharpen the tools. The grinder was considered a foreman who, regardless of whether he actually employed the men himself or not, did the hiring and discharging. There was little or no contact between the sheepmen and the shearers. The sheepmen brought their sheep to the corral and accepted the services of the shearer present in each pen regardless of who he was. If they became dissatisfied with any shearer, they notified the grinder who discharged the man. This, however, was a very infrequent case as the shearers were experienced. They worked at a prevailing wage of 12 1/2c per head. There was little direction of them, apparently each shearer being desirous of doing his best and as much as he could. If a shearer desired to leave, he settled up with the sheepmen, and did so. It was usually arranged to have someone present to replace him. There was nothing against the sheepmen sending shearers to the corral. Corral help were paid by the sheepmen in 1938 but by Roberts in 1937.
Prior to 1938, Roberts had been contracting with the sheepmen to shear their sheep. He would employ the shearers and would pay them. The sheepmen paid him not only the 6c referred to above, but the prevailing shearers' wage. As a result of the enactment of the unemployment law, Roberts concluded that he would no longer take the responsibility *Page 438 of an employer. Thus in 1938 — the time of the employment in controversy — he made no such contracts with the sheepmen. This is admitted by Elder.
As there had been little or no contact between the sheepmen and the shearers, the former looked to Roberts to supply their demands for shearers; and the latter looked to Roberts for such jobs as might be open. Roberts accommodated both, but received no compensation from either for doing so; nor did Roberts limit the jobs for the shearers to those in which he was personally interested. He sent them other places as well.
In April, 1938, shearing was undertaken at the Watson corral. Roberts' machinery was used, and Roberts received the 6c per head. His brother acted as grinder most of the time. Roberts sent shearers out there. Among them was Elder. Roberts maintains that he told Elder that the sheepmen were the employers this time. This is denied by Elder. Testimony was given by other shearers in substantiation of both Roberts and Elder. Some of the sheepmen who sheared that year testified that they were the employers, and presented evidence that they had paid the shearers direct, including Elder. No sheepman testified against this fact. Elder and two others, however, maintained that Roberts was the employer. Many of the questions asked called for legal conclusions; but we have ignored this fact, as we believe it would not affect our conclusion one way or another. The evidence is all one way. Roberts was not the employer of Elder. In order to hold that there is substantial evidence justifying a conclusion that Roberts was the employer, we must give weight to a suspicion that he who desires to relieve himself of the responsibility of employing others is guilty of a selfish anti-social idea that justifies our believing that he did not in reality abandon the idea of employing others. In other words, to so hold, we must attribute to Roberts and the sheepmen (as the latter have accepted the employer status) a fraudulent idea based solely upon the fact that they failed to enter into contracts in 1938, as they *Page 439 had before. That they did not enter into such contracts is undisputed. That they had a perfect right to refrain from such contracts is unquestionable. The evidence does not indicate that Roberts was accepting benefits as an employer and trying to shirk the responsibilities of such employment.
Suppose Roberts and the sheepmen were so astute as to reason thus: Now if Roberts remains as employer it may be that the courts will hold that the shearers' services are not agricultural labor; but if the sheepmen assume the role of employer, the courts may hold otherwise. Upon such reasoning they change the relationship of all concerned. Can it be said that the new contracts are a nullity because founded upon selfish desires? The question answers itself.
What about the claim of exemption as agricultural labor? This question is far more interesting than the other, though now, as the result of our ruling above, it is of less importance to this case. Good arguments can be given both ways as illustrated by the opposing authorities cited in the briefs of counsel. One's sense of fairness inclines to the belief that if "A" gathers a group of men together and employs them to travel from farm to farm with him, and for a consideration to him, relieve the farmers of much of their drudgery, that that little traveling unit is as much a business concern as an auditing company in the city, and the employees of that traveling unit should receive the benefits of the Unemployment Compensation law. But is not that a question for the Legislature? The Legislature has said that "agricultural labor" is exempt. Section 19(j)(6)(4). Is this not a definition of the kind of work done, and not of for whom it is done? For a similar principle see: Jones et al. v. IndustrialCommission, 55 Utah 489, 187 P. 833.
For the reasons given, the judgment of the Industrial Commission should be reversed. The case is remanded for the action of the Commission in conformity with this opinion and with Section 6(i) of the Unemployment Compensation Law of this State.
McDONOUGH, J., concurs. *Page 440