Opinion
Nos. CV 10-5033245 S, CV 09 5032769 S, CV 09 5032943 S
July 14, 2011
MEMORANDUM OF DECISION
This is a statutory appeal concerning an award of unemployment benefits. This appeal was consolidated by order of the court (Hon. Corradino) with two other pending appeals. Pursuant to General Statutes § 31-249b, the plaintiff, Central, Inc., dba Central Auto Exchange, challenges a decision by the employment security board of review (review board). In its decision dated February 5, 2010, the review board concluded that "the employer has not presented any material facts or legal arguments which would disturb the referee's findings of fact or legal conclusions that the claimant is not disqualified from receiving unemployment compensation benefits pursuant to General Statutes § 31-225a(c)(1)(F)." That decision also adopted the referee's findings of facts which were:
The consolidated appeals are Central Auto Exchange v. Administrator, Unemployment Compensation Act, Superior Court, Judicial District of New Haven, Docket No. CV 09 5032769; Central Auto Exchange v. Administrator, Unemployment Compensation Act, Superior Court, Judicial District of New Haven, Docket No. CV 09 5032943; and Central Auto Exchange v. Administrator, Unemployment Compensation Act, Superior Court, Judicial District of New Haven, Docket No. CV 10 5033245.
1. The employer appeared several minutes late for the referee's hearing on August 12, 2009, just as the referee dismissed the case for lack of prosecution.
On August 13, 2009, the appeals division referee dismissed the appeal. On August 18, 2009, the plaintiff filed a motion to reopen which was conditionally granted. A new hearing was held on September 25, 2009 which all parties attended. The appeals referee issued a decision on October 30, 2009 and it was this decision which the review board affirmed.
Note: The same legal issue was appealed in the two consolidated cases i.e., Central Auto Exchange v. Administrator, Unemployment Compensation Act, Superior Court, Judicial District of New Haven, Docket No. CV 09 5032769; Central Auto Exchange v. Administrator, Unemployment Compensation Act, Superior Court, Judicial District of New Haven, Docket No. CV 09 5032943; are hereby dismissed as well.
2. The claimant drove vehicles for the employer during auctions.
3. During April 2009 the claimant's hours were reduced from 12-14 hours per week to approximately 5 hours per week.
4. During the base period (1st quarter/2008-4th quarter/2008) the claimant earned $1,181 during the 3rd quarter of 2008 and $1,163.25 during the 4th quarter of 2008.
5. In a memo of July 14, 2009, the employer states that drivers would work on Tuesdays (auction days) from 10:00 a.m.-12:30 p.m. or until the auction ends and would earn a flat rate of $30. The employer decreased hours on Tuesdays because there was no need for drivers to work longer shifts. For example, during the following periods the claimant earned only $30: July 26, 2009-August 1, 2009; July 19, 2009-July 25, 2009, July 12, 2009-July 18, 2009.
6. During the period July 5, 2009-July 11, 2009, the claimant worked 5 hours earning $41.56. During the period June 28, 2009-July 4, 2009, the claimant worked 5 hours, earning $41.56.
7. Previously, during the base period the claimant worked 12-14 hours per week.
Unemployment compensation appeals are controlled by General Statutes § 31-249b. Addona v. Administrator, 121 Conn.App. 355, 361, 996 A.2d 280 (2010). The court "acts as an appellate court to review the record certified and filed by the board of review." Finkenstein v. Administrator, 192 Conn. 104, 112, 470 A.2d 1196 (1984). "[O]ur standard of review in administrative proceedings must allow for judicial scrutiny of claims such as constitutional error, jurisdictional error, or error in the construction of an agency's authorizing statute." Id., 113, 470 A.2d 1196. "The court's ultimate duty is to only to decide whether, in light of the evidence, the board . . . has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion." Marquand v. Administrator, 124 Conn.App. 75, 79, 3 A.3d 172 (2010), cert. denied, 300 Conn. 923, 15 A.3d 630 (2011).
At oral argument before the court, the plaintiff alleged deficiencies in the record but conceded that a motion to correct the record had not been submitted. The statutory appeal mechanism set forth in General Statutes § 31-249b limits the method by which findings of the board may be challenged. Practice Book § 22-4 provides in relevant part that "if the appellant desires to have the finding of the board corrected he or she must, within two weeks after the record has been filed in the superior court, file with the board a motion for the correction of the finding." Failure to file such a motion "prevents this court from reviewing the facts found by the board." Reeder v. Administrator, 88 Conn.App. 556, 558, 869 A.2d 1288 (2005). Therefore, in the absence of a motion to correct the record, the court cannot disturb the review board's factual findings.
With respect to issues of law, "the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts." (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, 238 Conn. 273, 276, 679 A.2d 347 (1996). However, the court "may not substitute its own conclusions for those of the administrative board." Church Homes, Inc. v. Administrator, 250 Conn. 297, CT Page 15346 304, 735 A.2d 805 (1999).
The plaintiff asserts as a threshold matter that the claimant is disqualified from receiving unemployment compensation benefits as "nothing in the record demonstrates that [he] made reasonable efforts to obtain alternative suitable employment." To the degree that this issue is a factual defect, the court cannot cure it. As noted above, "the Superior Court does not retry the facts or hear evidence" and is bound by "the record certified and filed by the board of review." Finkenstein v. Administrator, supra, 192 Conn. at 112. As a pure question of law that the court could entertain, the plaintiff has failed to identify and demonstrate that the review board's error was "constitutional . . . jurisdictional . . . or error in the construction of . . . an agency's authorizing statute." Id. at 113. More fundamentally, this question has not been certified by the review board to this court. Only after a party has exhausted his or her remedies before the review board is judicial review of such decision permitted. General Statutes §§ 31-248(c) and 31-249a(c). As the plaintiff has failed to exhaust this issue before the review board, judicial review is premature.
The plaintiff also alleges that the phrase "employ . . . to the same extent" as used in General Statutes § 31-225a(c)(1)(F) is ambiguous and that the statute's enactment constitutes a specific policy choice by the legislature "to relieve employers for charges where it offers continuous employment on a reduced basis, concluding that it is preferable to encourage employers to reduce employees' hours rather than terminate or layoff employees altogether."
Statutory construction is a question of law over which the court exercises plenary review. See State v. Hardy, 278 Conn. 113, 119, 896 A.2d 755 (2006). "When interpreting a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature." (Internal quotation marks omitted.) D'Angelo Development Construction Co. v. Cordovano, 278 Conn. 237, 243, 897 A.2d 81 (2006). "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered." General Statutes § 1-2z. While the construction placed upon a statute or regulation by the agency responsible for its enforcement and administration is entitled to deference, it is not binding. See Griffin Hospital v. Commission on Hospitals Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S.Ct. 781, 93 L.Ed.2d 819 (1986). "It is well settled that [the court does] not defer to the board's construction of a statute — a question of law — when . . . the [provision] at issue previously has not been subjected to judicial scrutiny or when the board's interpretation has not been time tested." (Internal quotation marks omitted.) JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 418, 828 A.2d 609 (2003).
"It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous . . . Because [e]very word and phrase [of a statute] is presumed to have meaning . . . [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant." (Citations omitted; internal quotation marks omitted.) American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184 (2008). "The test to determine ambiguity is whether the [statutory term], when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Hicks v. State, 297 Conn. 798, 801, 1 A.3d 39 (2010).
"[T]he [unemployment compensation] act is remedial and, consequently, should be liberally construed in favor of its beneficiaries . . . Indeed, the legislature underscored its intent by expressly mandating that the act shall be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualifaction in doubtful cases. General Statutes § 31-274(c)." (Citations omitted; internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, supra. "[W]hen a dispute arises regarding application of [a remedial] statute . . . the burden rests on the party seeking to deny the statutory protection." Rutolo v. Tieitjen, 93 Conn.App. 432, 439 890 A.2d 166 (2006).
As the plaintiff in this case is the party seeking to deny application of General Statutes § 31-225a(c)(1)(F), a remedial statute, it bears the burden. The plaintiff alleges ambiguity in the specific statutory phrase "to the same extent" in General Statutes § 31-225a(c)(1)(F) as applied by the review board.
General Statutes § 31-225a(c)(1)(F) reads "No base period employer's account shall be charged with respect to benefits paid to a claimant if such employer continues to employ such claimant at the time the employer's account would otherwise have been charged to the same extent that he employed him during the individual's base period, provided the employer shall notify the administrator within the time allowed for appeal in section 31-241." The phrase "to the same extent" is immediately followed by the phrase "that he employed him during the individual's base period." Under a plain reading of the statute, "to the same extent" refers to a comparison with "the individual's base period." When read in context, the phrase "to the same extent" is not susceptible to more than one reasonable interpretation. Consequently, notwithstanding the plaintiff's allegations, the meaning of "to the same extent" is plain and unambiguous and can be ascertained by the text of General Statutes § 31-225a(c)(1)(F) itself. In the absence of ambiguity, extra-textual evidence cannot be considered. See General Statutes § 1-2z.
Additionally, the plaintiff's statutory interpretation would result in disqualification of beneficiaries that are currently eligible. Under the plaintiff's analysis, an employer could unilaterally reduce an individual's hours (and, therefore, wages) from twenty hours per week to only one hour per week and, notwithstanding the dramatic reduction, would constitute employment "to the same extent." The plaintiff's interpretation does not permit a liberal construction "in favor of its beneficiaries" and subverts the remedial nature of the unemployment compensation act. Mattatuck Museum-Mattatuck Historical Society v. Administrator, supra.
The plaintiff's view is also contrary to that of the review board. In Osowiecki v. Carmon Funeral Home, Inc., 943-BR-94 (1994), the review board concluded that "[a]n employer will clearly continue to employ an individual to the same extent as during the base period where the individual has continuous part time work which he or she continues to perform while filing for benefits . . . [t]his can be readily demonstrated through a comparison of wages reported while the claimant was filing compared to wages paid by the employer requesting relief during the base period." Although not binding, "a longstanding administrative construction of the statute by the agency charged with its enforcement is high evidence of what the law is . . . and is to be given great deference." (Citation omitted; internal quotation marks omitted.) Bridgeport Metal Goods Mfg. Co. v. Administrator, 2 Conn.App. 1, 3, 475 A.2d 329 (1984). In the absence of judicial or legislative authority, disruption of such a longstanding administrative construction by the review board is unwarranted.
On the basis of the certified record, this court finds that the board of review did not act arbitrarily or unreasonably in reaching its conclusion. Accordingly, the plaintiff's appeal is dismissed.