Princess House, Inc. v. Department of Industry, Labor & Human Relations

314 N.W.2d 922, 105 Wis. 2d 743, 1981 Wisc. App. LEXIS 3391
CourtCourt of Appeals of Wisconsin
DecidedDecember 28, 1981
DocketNo. 80-2357
StatusPublished
Cited by3 cases

This text of 314 N.W.2d 922 (Princess House, Inc. v. Department of Industry, Labor & Human Relations) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Princess House, Inc. v. Department of Industry, Labor & Human Relations, 314 N.W.2d 922, 105 Wis. 2d 743, 1981 Wisc. App. LEXIS 3391 (Wis. Ct. App. 1981).

Opinion

GARTZKE, P.J.

Princess House, Inc. appeals from a circuit court judgment affirming the decision of the [745]*745Labor and Industry Review Commission, which in turn affirmed an appeal tribunal decision, that Princess House is liable for contributions to the Wisconsin unemployment compensation fund. We affirm.

Princess House is a Massachusetts corporation. It manufactures and sells tableware nationally. A system of local dealers, grouped under unit and area organizers, accounts for most of the company’s sales.1

The appeal tribunal found that the company’s dealers were employees within the meaning of sec. 108.02(3), Stats. 1973, and that they did not come within the statutory exceptions from that status. The tribunal found that Princess House was a Wisconsin employer and was liable for contributions beginning January 1, 1974. The Labor and Industry Review Commission affirmed. The circuit court found that credible evidence of record supported the findings of the commission and affirmed the decision.

1. Statute And Employer’s Contentions

Section 108.02(3), Stats. 1973, provides in material part:

(a) “Employe” means any individual who is or has been performing services for an employing unit, in an employment, whether or not he is paid directly by such employing unit; except as provided in par. (b). . . .
(b) Paragraph (a) shall not apply to an individual performing services for an employing unit if the employing unit satisfies the department as to both the following conditions:
1. That such individual has been and will continue to be free from the employing unit’s control or direction over the performance of his services both under his contract and in fact; and
2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.

[746]*746The company regards the dealers as independent contractors. Its agreement with a dealer provides, “The Company agrees to sell to the Dealer and the Dealer agrees to buy from the Company the Company’s products for the purpose of resale to the Dealer’s customers . . . .” The dealer signs a separate agreement stating that she understands she is in business for herself and is not an agent or employee of Princess House.2

Princess House contends that its dealers do not perform services for the company because it and its dealers occupy the relation of supplier and purchasers rather than employer and employees. It argues that each transaction it has with a dealer is complete when its product is sold to the dealer, and that the dealer’s services are for the dealer’s benefit and not for the benefit of Princess House. It argues that a dealer performs no service for a supplier merely by buying the seller’s products.

2. Finding That Employees Perform Services For Princess House Supported By Credible And Substantial Evidence

Sales by Princess House dealers account for over ninety percent of the company’s business. The party plan is most often used. Under that method, the dealer takes the orders and forwards them to the company. The shipment is subsequently made by the company C.O.D. to the hostess or another person rather than to the dealer. The company is paid by the hostess rather than the dealer, who later receives a commission. According to its chairman of the board, the company will take care of a customer complaint sent in by the dealer. The dealer, however, receives and forwards the complaint.

The dealer’s services are of course partly for the dealer’s own benefit. The fact remains that every sale [747]*747through the party method is a sale to a customer arranged by the dealer, which almost immediately benefits the company. The dealer provides both pre-sale and post-sale services to the company.

The finding that the dealer performs services for the company is supported by credible and substantial evidence, the scope of our review under sec. 102.23(6), Stats., which is made applicable by sec. 108.09(7) (b), Stats., to review a decision by the commission under ch. 108.

Princess House contends that the evidence merely demonstrates the practice of “drop shipping.” It is a common commercial practice for a buyer and seller to arrange for a C.O.D. shipment by the seller to a consignee other than the buyer. That such an arrangement may •exist does not compel the commission to find that such was the arrangement here. A reasonable person could have drawn the same inference from the evidence as did the commission. We must therefore adopt the commission’s inference. Bucyrus-Erie Co. v. ILHR Department, 90 Wis. 2d 408, 418, 280 N.W.2d 142, 147 (1979).

Princess House relies upon Aparacor, Inc. v. United States, 556 F.2d 1004 (Ct. Cl. 1977), which held, on similar facts, that Aparacor was a supplier to independent contractors. Aparacor is not in point. The question in Aparacor was whether the relationship of employee or independent contractor existed under the usual common law tests under the Internal Revenue Code. 556 F.2d at 1005. The question here is whether Princess House dealers are employees, as statutorily defined. A person may be an independent contractor at common law but an employee under the Unemployment Compensation Act. Moorman Mfg. Co. v. Industrial Comm., 241 Wis. 200, 203, 5 N.W.2d 743, 744 (1942).

[748]*7488. Exemptions From Employee Classification

The dealers having been shown to be employees as defined by sec. 108.02(3) (a), Stats. 1973, the burden is on the company to establish that they are exempt from that classification. The dealers are not exempt unless both conditions set forth in sec. 108.02(3) (b) exist. Whether those conditions exist is a question of fact. Transport Oil, Inc. v. Cummings, 54 Wis. 2d 256, 267, 195 N.W.2d 649, 655 (1972).

We need not decide whether credible and substantial evidence supports the commission’s findings that the company failed to establish that its dealers in fact were not free from its control and direction. Sec. 108.02(3) (b) 1, Stats. 1973. Credible and substantial evidence supports the commission’s finding that the services of the dealers were not performed in an “independently established trade, business or profession.” Sec. 108.02(3) (b) 2. The company has therefore failed to meet the second of the two conditions of sec. 108.02(3) (b).

The “proprietary-interest” test is a guideline in determining whether services are performed in an independently established trade, business or profession. Sears, Roebuck & Co. v. ILHR Department, 90 Wis. 2d 736, 751, 280 N.W.2d 240, 246 (1979); Transport Oil, supra.

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314 N.W.2d 922, 105 Wis. 2d 743, 1981 Wisc. App. LEXIS 3391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/princess-house-inc-v-department-of-industry-labor-human-relations-wisctapp-1981.