State Ex Rel. Employment Security Commission v. Whitehurst

Denny, J. Tbe defendant contends tbat since be was not an employing unit at tbe time be bought tbe assets of M. E. Perry, trading as Colonial Cleaners, be could not be held an employing unit tbat acquired tbe assets of another so as to tack on bis employment of more than eight individuals for sixteen weeks in 1948, to tbe employment of more than eight individuals for twelve weeks in 1948, by tbe previous owner of tbe business, and thereby make him liable for contributions upon wages paid his employees during 1948. The answer to the defendant’s contention is found in the pertinent provisions of the Employment Security Law. G.S. 96-8 (e) defines an employing unit as follows: “ ‘Employing unit’ means any individual or type of organization, including any partnership, association, trust, estate, joint-stock company, insurance company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, or the legal representative of a deceased person which has, on or subsequent to January first, one thousand nine hundred and thirty-six, had in its employ one or more individuals performing services for it within this State . . .” An employer who is required to pay contributions upon wages of his employees, is defined in G.S. 96-8 (f), subsection (1), as follows: “ ‘Employer’ means (1) any employing unit which in each of twenty different weeks within either tbe current or preceding calendar year bas, or bad in employment, eight or more individuals.” And any two employing units may be treated as a single unit when they come within the provisions of G.S. 96-8 (f), subsection (3), which provides: “‘Employer’ means (3) any employing unit which acquired the organization, trade, or business, or substantially all the assets thereof, of another employing unit and which, if treated as a single unit with such other employing unit, would be an employer under paragraph (1) of this subsection.” It will be noted tbat tbe right to treat two employing units as a single unit, is not referred to in the statute as an employing unit which acquires the organization, trade or business of another employing unit, but as an “employing unit which acquired tbe organization, trade, or business . . . of another employing unit and which, if treated as a single unit with such other unit, would be an employer’hunder the definition contained in subsection (1) of G.S. 96-8 (f). *499 Clearly, W. H. Whitehurst, trading as Colonial Cleaners, became an employing unit as defined by tbe statute, G.S. 96-8 (e), on 16 August, 1948, tbe date be began to operate tbe business. And tbe Employment Security Commission of North Carolina bad tbe right to know whether or not tbe employing unit of W. H. Whitehurst, trading as Colonial Cleaners, acquired the business from another employing unit. There is but one answer to such inquiry. He acquired all tbe assets of another employing unit, and when these two employing units are treated as a single unit, as provided in tbe statute, then such unit employed as many as eight individuals for twenty-eight weeks in 1948, and “would be an employer” as defined in G.S. 96-8 (f), subsection (1). We do not concur in tbe defendant’s contention that in order for tbe employing unit of M. E. Perry, trading as Colonial Cleaners, and tbe employing unit of W. H. Wbiteburst, trading as Colonial Cleaners, to be “treated as a single unit” it was necessary for W. H. Wbiteburst to have been an “employing unit” prior to tbe time be acquired tbe assets of M. E. Perry. On tbe contrary, we think tbe defendant was an “employer” in 1948, within tbe meaning of tbe Employment Security Law. It follows, therefore, that tbe judgment entered below will be upheld. Affirmed.