In Re Southern

101 S.E.2d 327 (1958)

247 N.C. 544

In the Matter of Roy C. SOUTHERN, Sr., S. S. No. XXX-XX-XXXX, Employee, and others. In re CONE MILLS CORPORATION, White Oak Plant, Proximity Plant, Greensboro, N. C., Edna Plant, Reidsville, N. C., and Employment Security Commission of North Carolina.

No. 596.

Supreme Court of North Carolina.

January 10, 1958.

*329 Robert S. Cahoon, Greensboro, for employee-appellants.

Brooks, McLendon, Brim & Holderness, Greensboro, for employer-appellee.

W. D. Holoman, R. B. Billings and D. G. Ball, Raleigh, for Employment Security Commission, appellee.

RODMAN, Justice.

The Legislature in its discretion has made the findings of fact by the Commission conclusive when supported by any evidence. G.S. § 96-15 (i). The validity of this section has been consistently recognized and effect given thereto. In re Stevenson, 237 N.C. 528, 75 S.E.2d 520; In re Employment Security Commission, 234 N.C. 651, 68 S.E.2d 311; State ex rel. Employment Security Commission v. Jarrell, 231 N.C. 381, 57 S.E.2d 403; State ex rel. Employment Security Commission v. Roberts, 230 N.C. 262, 52 S.E.2d 890; State ex rel. Employment Security Commission v. Kermon, 232 N.C. 342, 60 S.E.2d 580; In re Steelman, 219 N.C. 306, 13 S.E.2d 544.

The employment manager for Cone testified: "We did have a shutdown at our plants at White Oak, Proximity, and Edna on the week ending December 30, 1956. That was vacation week. We did notify the employees ahead of time that would be a vacation week." Copies of the notices posted on the bulletin boards were offered in evidence. There was other evidence to support the Commission's findings. Hence they are conclusive and the exceptions taken thereto have no merit.

Do the findings justify the legal conclusion and support the decision denying compensation? We think the statute granting benefits for unemployment requires an affirmative answer. G.S. § 96-13 provides: "An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that * * * (c) He is able to work, and is available for work: * * * Provided further, however, that effective January 1, 1949, no individual shall be considered available for work for any week not to exceed two in any calendar year in which the Commission finds that his unemployment is due to a vacation."

As originally enacted, the statute contained no provision restricting the payment of benefits when work was suspended to give employees a vacation. Section 4, c. 1, P.L.Ex.Sess.1936. The 1943 Legislature inserted two restrictions on the right of an unemployed individual to draw compensation benefits. It denied benefits for a period of three months prior and a like period subsequent to the birth of a child to such individual. S.L.1943, c. 377, § 5. That same section also "Provided further, however, that no individual shall be considered available for work for any week, not to exceed two in any benefit year, in which the commission finds that his unemployment is due to a customary and well established vacation. This provision shall apply only if it is found by the commission that employment will be available to him at the end of such vacation." The provision that the vacation should be "customary and well established" proved objectionable to employers and employees. The Commission found it difficult of administration. The Commission recommended, and the Legislature in 1949 rewrote the provision *330 with respect to the vacation to read as it presently exists. The language of the statute, when read and understood in the light of its history, we think demonstrates as the Commission says that the time for vacation was, if not fixed by agreement of the parties, to be determined by the employer.

The employer and its employees may by contract fix the date or dates for the vacation. Vacation may be one twoweek period or two one-week periods. The statute does not prescribe; it merely limits the total vacation period for which an employee is ineligible for compensation to a total of two weeks.

"Under our system of private enterprise an employer in general may operate his business as he sees fit, in the absence of restrictions imposed in a collective bargaining agreement. One of an employer's inherent rights is to determine vacation policy in his own business particularly as to whether vacations shall be on a staggered basis or whether the plant shall be shut down so that the employes may enjoy their vacations all at the same time." Philco Corp. v. Unemployment Compensation Board of Review, 175 Pa.Super. 402, 105 A.2d 176, 178.

The week which includes Christmas cannot be said to be an inappropriate time for a vacation. The announced purpose for suspension of work and the period of suspension conformed to accepted definitions of a vacation. Kelly v. Administrator, Unemployment Comp. Act, 136 Conn. 482, 72 A.2d 54; Mattey v. Unemployment Compensation Board of Review, 164 Pa.Super. 36, 63 A.2d 429; In re Dauber, 151 Pa.Super. 293, 30 A.2d 214; Gutzwiller v. American Tobacco Co., 97 Vt. 281, 122 A. 586; 91 C.J.S. 774.

Employer and the union representing its employees agreed that the employer would provide its employees one week's vacation with pay between 1 June and 1 September. This agreement does not purport to enlarge or diminish employees' right to compensation benefits nor could it do so. Neff v. Board of Review, etc., Ohio Com.P1., 117 N.E.2d 533. The agreement does not undertake to fix the time for the second week of vacation permitted by statute.

The employer had a right by statute to suspend work for a total of two weeks for vacation without conferring on his employees a right to claim benefits on account of unemployment. The Commission has found that the employer exercised its right and suspended work during Christmas week to give its employees a vacation at that time. The purpose of the employer in suspending work at that time was a question of fact which has been resolved by the Commission. The findings made by the Commission, supported as they are by evidence, are conclusive. These findings require a denial of the right to the benefits claimed.

The judgment is

Affirmed.