may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Central Specialties, Inc.,
Commissioner of Economic Security,
Filed May 25, 1999
Department of Economic Security
File No. 46T98
Kyle E. Hart, Julie A. Doherty, Fabyanske, Westra & Hart, P.A., 920 Second Ave. S., Suite 1100, Minneapolis, MN 55402 (for relator)
Kent E. Todd, Lee B. Nelson, Department of Economic Security, 390 North Robert St., St. Paul, MN 55101 (for respondent)
Considered and decided by Halbrooks, Presiding Judge, Davies, Judge, and Peterson, Judge.
Relator challenges the Commissioner of Economic Security's decision that relator is subject to the reemployment experience ratings of three other companies. We reverse.
Relator Central Specialties, Inc., is one of four companies owned by Minnerath family members. The others are Starry Construction, Starry Equipment, and Al Minnerath, Inc. All four are in the road construction business, but, at the end of 1994, Starry Construction, Starry Equipment, and Al Minnerath, Inc., laid off nearly all their employees. This left them with high reemployment insurance tax rates, but little payroll. On January 18, 1995, relator, the fourth Minnerath company, made a voluntary payment that "bought down" its 1995 reemployment insurance tax rate to the lowest possible rate of .02%. It was the only Minnerath company still with significant payroll.
Over the next several months, relator hired new employees, many of whom were formerly employed by the other three companies. But the record shows that all four of the companies continue to do business. The record also indicates that Starry Construction and Al Minnerath, Inc., revamped their businesses to focus on general contracting. They now subcontract their work to third parties, including relator. No assets, except for a tractor, were transferred to relator.
In December 1997, the Department of Economic Security (department) audited the four companies and concluded that, because relator hired former employees of the three companies owned by other family members and then subcontracted to do work for those companies, it had succeeded to the business of the other three companies and was, therefore, subject to their experience ratings. Relator appealed and, after a hearing, a reemployment insurance judge (referee) decided that relator had not succeeded to the business of the other three companies. Respondent Commissioner of Economic Security (commissioner), through his representative, reversed the referee's decision. This certiorari appeal is from the decision of the commissioner's representative.
The ruling of an agency determining an employer's experience rating will be overturned if not reasonably sustained by the evidence. Honeymead Prods. Co. v. Christgau, 234 Minn. 108, 114, 47 N.W.2d 754, 757 (1951). As is typical in our review of agency decisions, this court is not bound by the commissioner's representative's conclusions of law. See Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (no deference given to commissioner's legal conclusion in employee benefits case).
Relator first argues that the commissioner's representative erred by ruling on a theory not presented to the referee. But the commissioner's representative is allowed to base a decision on theories not presented to a hearing referee. Nelson v. Bemidji Reg'l Interdistrict Council, 359 N.W.2d 38, 40 (Minn. App. 1984).
Relator next argues that there is no evidence to support the commissioner's representative's determination that the previous employers' experience ratings should be transferred to relator.
When an employing unit succeeds to or acquires the organization, trade or business or substantially all the assets of another employing unit which at the time of the acquisition was an employer subject to this law, and continues such organization, trade or business, the experience rating record of the predecessor employer shall be transferred as of the date of acquisition to the successor employer for the purpose of rate determination.
Minn. Stat. § 268.06, subd. 22(a) (1994). Thus, we must consider: (1) whether relator acquired or succeeded to the organization, trade, or substantially all of the assets of the other three companies; and (2) whether relator continued the business of the other three companies. Easy Street West v. Commissioner of Economic Security, 345 N.W.2d 250, 254-55 (Minn. App. 1984). Under the statutory language, both conditions must be satisfied to transfer the experience rating of the other businesses to relator.
We conclude that there was no evidence of any interrelation among these companies that would justify a statutory transfer of experience ratings to relator. Possible motive to structure the businesses to reduce taxes is not sufficient evidence that the statutory conditions have been satisfied.
There is no evidence that relator acquired or succeeded to the organization of any of the other three companies. The term "organization" refers to the structural outline of a company, especially as embodied by its management and employees. Minn. R. § 3315.3210, subpt. 4 (1993) (organization is the structural outline); Easy Street West, 345 N.W.2d at 255 (organization implies management and employees). Although relator hired some former employees of the other Minnerath companies, there is no evidence that relator acquired or succeeded to the organizational structure of any of those companies. Relator concedes that it hired the two employees of Starry Equipment, both of whom may have constituted management. But the record does not indicate that relator adopted Starry Equipment's management structure. Simply having the same employees is not sufficient to establish that relator acquired a previous employer's organization.
There is no evidence that relator acquired or succeeded to the trade or business of any of the other companies. Trade or business refers to the clientele or market of a business entity. Easy Street West, 345 N.W.2d at 255. Being in the same line of business is not sufficient to indicate succession to a predecessor's trade or business. Id. at 256. There is no evidence that relator assumed any of the other companies' clients or assumed their position in the market. The record indicates that relator does some subcontracting for the other three companies. But, while this work eventually benefits the clients of the other companies, they are still clients of those companies.
There is no evidence that relator acquired or succeeded to substantially all of the assets of any of the three companies. Assets include such things as intellectual property, contractual rights, good will, and accounts receivable. Minn. R. 3315.3210, subpt. 2 (1993). Aside from a tractor, relator did not in 1995 obtain any asset from any of the other three companies. Relator merely hired some employees the other companies had laid off and it did so without acquiring or assuming any contractual rights from the former employers. Even if employees were assets under the statute, they would only be one category of asset, and the record does not indicate that they would constitute substantially all of the assets of any of the other three companies.
Having determined that there is no evidence reasonably sustaining the conclusion of the commissioner's representative that relator acquired or succeeded to the organization, trade, or business, or substantially all of the assets of the other companies, we need not reach the issue of whether relator continued the business of the other three companies.
 Because both Minn. Stat. § 268.06, subd. 22 (1994), and Minn. Stat. § 268.051, subd. 4(a) (1998), provide that "the experience rating record of the predecessor employer shall be transferred as of the date of acquisition to the successor employer * * *," the law to be applied is the statute in effect at the time of the alleged acquisition. Accordingly, we apply the 1994 statute.