In re Hearing of Electrolux Corp.

Bliss, J. The decision of the Unemployment Insurance Appeal Board is as follows: “ Decision: Appellant is a covered employer within the meaning of the Unemployment Insurance Law [Labor Law, art. 18] and is required to pay contributions into the Unemployment Insurance Fund based on the earnings of its salesmen. “ The decision of the referee and the determination of the Division of Placement and Unemployment Insurance are affirmed.” Both the appellant and respondent ask that this decision be reversed but for different reasons, the respondent, Industrial Commissioner, because the case did not properly arise under section 523 of the Unemployment Insurance Law, or any other statute, and the appellant, Electrolux Corporation, because the persons whose status is involved in this case are independent contractors and not employees of the appellant. The referee states that the employer requested a hearing under section 523 of the Unemployment Insurance Law to determine the validity of the ruling of the Division of Placement and Unemployment Insurance of the Department of Labor, holding that the sales representatives, team captains and group leaders of the employer were employees within the meaning of the Unemployment Insurance Law. The decision of the Appeal Board reads that the appeal to it was taken pursuant to the provisions of section 523.1 (b) [§ 523, subd. 1, (b)] of the Labor Law from the decision of the referee, which affirmed the determination of the Division of Placement and Unemployment Insurance, holding appellant to be an employer within the meaning of the Unemployment Insurance Law and liable for the payment of contributions based on the earnings of its salesmen. Upon this argument the appellant, Electrolux Corporation, does not urge that authority for the appeal to and decision of the Unemployment Insurance Appeal Board is found in paragraph (b) of subdivision 1 of section 523 of the Unemployment Insurance Law. It places its reliance upon paragraph (a) of subdivision 1 of section 523 of this statute. Paragraph (a) of subdivision 1 of section 523, so far as here applicable, reads as follows: “If an employer fails to file a report for the purpose of determining the amount of bis contribution due under this article, or if such report when filed is incorrect or insufficient and the employer fails to file a corrected or sufficient report within twenty days after the Commissioner requires the same by written notice, the Commissioner shall determine the amount of contribution due from such employer on the basis of such information as he may be able [489] to obtain and he shall give written notice of such determination of [to] the employer. Such determination shall finally and irrevocably fix the amount of contribution unless the employer shall within twenty days after the mailing or personal delivery of notice of such determination apply to the Commissioner for a hearing or unless the Commissioner of his own motion shall reduce the same. “ In like manner any employer who claims to be aggrieved by any other rule or order of the Commissioner under any provision of this article may apply to the Commissioner for a hearing. (( * * * Paragraph (b) of the same section reads: “ Within twenty days after the mailing or personal delivery of notice of the decision after such a hearing, the employer may take an appeal to the Appeal Board by filing a notice of appeal with the Commissioner and the Commissioner may likewise within such period take an appeal to said Board by giving written notice thereof to the employer.” There is no proof here that the employer failed to file a report for the purpose of determining the amount of his contribution due under this article, or that such a report had been filed but was incorrect or insufficient. Consequently, there was no authority for the making of the determination under the first part of paragraph (a) of subdivision 1 of section 523. Nor do we find statutory authority for the Commissioner to make a decision of this kind under any other provision of article 18. Consequently, this is not an “ other rule or order ” such as is referred to in the second part of said paragraph (a), quoted above. It is fundamental that the Unemployment Insurance Appeal Board is vested with only such authority and jurisdiction as is granted to it by statute. But search for a statute authorizing this determination is in vain. The decision itself is wholly impersonal; it deals with no actual alleged employee and consequently affects no employee of appellant. It does not determine the amount of contribution due from the employer and it does not fix any amount of contribution. It directs no payment but deals with abstractions and with neither contracts of employment nor the status of any so-called employee. At best it is advisory only. While much may be said in favor of the granting of power to the Board to render decisions in the nature of a declaratory judgment we fail to find that such power has been given by the present statute. Even the Supreme Court, with its all-embracing constitutional jurisdiction, must have statutory authority for its power to render judgments declaring the rights of the parties (Civ. Prac. Act, § 473), and there must be an actual controversy and the parties and the subject-matter must be before the court. [490] The decision of the Unemployment Insurance Appeal Board should be reversed and the proceeding dismissed, without costs. Hill, P. J., and Crapser, J., concur; Schenck and Foster, JJ., dissent, Schenck, J., in an opinion in which Foster, J., concurs.