COURT OF APPEALS DECISION DATED AND RELEASED November 14, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1355
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
THOMSON NEWSPAPERS
(WISCONSIN), INC.,
Plaintiff-Respondent,
v.
LABOR AND INDUSTRY
REVIEW COMMISSION and
WISCONSIN DEPARTMENT
OF INDUSTRY, LABOR and
HUMAN RELATIONS,
Defendants-Appellants.
APPEAL from an order of
the circuit court for Dane County:
ROBERT R. PEKOWSKY, Judge. Reversed
and cause remanded with directions.
Before Dykman, P.J.,
Paul C. Gartzke and Robert D. Sundby, Reserve Judges.
PER
CURIAM. The Labor and Industry Review Commission (LIRC or
"the commission") and the Department of Industry, Labor and Human
Relations (DILHR) appeal from a circuit court order reversing LIRC's
decision. The circuit court held that
newspaper bundle haulers are not newspaper employees because they fall under
the "newsboy" exception of § 108.02(15)(k)4, Stats.
We conclude that the circuit court erred in applying the standard of
review. We reverse the circuit court
and remand to that court with instructions to reinstate LIRC's decision.
BACKGROUND
In
1991, DILHR initially determined that Thomson Newspapers, Inc. owed
unemployment compensation taxes for income paid to its newspaper bundle haulers
in various previous years. Thomson
appealed this determination to a DILHR appeal tribunal which was conducted by
an administrative law judge (ALJ).
Thomson argued that bundle haulers fit under § 108.02(15)(k)4, Stats., which provides in relevant
part: "`Employment' as applied to
work for a given employer ... does not include service ... [a]s an individual
selling or distributing newspapers or magazines on the street or from house to
house." The ALJ agreed with
Thomson and reversed. The ALJ found
that the bundle haulers were not employees.
However, LIRC held that bundle haulers are not exempt under
§ 108.02(15)(k)4 and are employees subject to unemployment compensation
taxes. The circuit court reversed LIRC
and found that the exemption applies and that bundle haulers are not employees
subject to unemployment compensation taxes.
Because we conclude that the circuit court erred, we reverse its
order.
The parties agree that
newspaper bundle haulers pick up newspapers from a paper's loading dock and
distribute them in bundles to various locations, typically street corners. Bundle haulers devote a small amount of their
time (10%) to delivering papers to individual sales outlets such as vending
machines and commercial establishments. The bundles delivered to street corners
are subsequently picked up by "motor carriers" who distribute papers
to individual residences. The parties
do not dispute that the motor carriers fit under the exemption. The disagreement is whether the bundle
haulers do.
STANDARD OF REVIEW
In an unemployment
compensation case, we review the decision of the commission, not that of the
circuit court. Stafford Trucking,
Inc. v. DILHR, 102 Wis.2d 256, 260, 306 N.W.2d 79, 82 (Ct. App.
1981). We will set the factual findings
aside only if the commission acted without or in excess of its powers, if the
award was procured by fraud, or if the commission's findings do not support the
order or award. Section 102.23(1)(e), Stats.
We examine the entire record to determine whether there is substantial
and credible evidence which could support the findings, Princess House,
Inc. v. DILHR, 111 Wis.2d 46, 54, 330 N.W.2d 169, 173-74 (1983), not
whether there is evidence to sustain a finding not made, Mednicoff v.
DILHR, 54 Wis.2d 7, 18, 194 N.W.2d 670, 675-76 (1972). If there is evidence upon which reasonable
people could rely in reaching the conclusion, we must affirm. Princess House, 111 Wis.2d at
54, 330 N.W.2d at 173.
ANALYSIS
The
parties point to various indicia of the haulers' working conditions to support
their conflicting claims. In support of
its argument that haulers are not employees, Thomson points out that the
haulers fit under the § 108.02(15)(k)4, Stats.,
exemption because they "distribute" papers "on the
street." Thomson also argues that
bundle haulers are not employees because they drive their own vehicles, are
free from any work rules, have no sick or vacation days, have their income
reported on 1099 forms rather than W2 forms, and under National Labor Relations
Board decisions, are not "employees" under federal common law.
LIRC argues that the
exemption does not apply because bundle haulers distribute papers
"to" the street for further delivery, as opposed to "on the
street" to individual houses. LIRC
also argues that haulers are employees because they have little practical
independence, their operations are "integrated" with the newspapers',
they do not advertise, and they have little entrepreneurial risk.
In view of our standard
of review, we must affirm LIRC. LIRC
determined that bundle haulers are employees.
In so doing, it set forth its reasons
on the record. The stated
reasons rely upon criteria which "reasonable people" could use to
come to the same decision LIRC reached.
See Princess House, 111 Wis.2d at 54, 330 N.W.2d at
173. The record shows that the haulers
are employees in view of their financial dependence on the newspapers for which
they work, their lack of entrepreneurial risk, and their failure to
advertise. This constitutes substantial
and credible evidence to support LIRC's decision. See id. at 54, 330 N.W.2d at 173. We recognize that other decisions could be
made, but we do not search the record for evidence to sustain a finding not
made. Mednicoff, 54
Wis.2d at 18, 194 N.W.2d at 675-76.
Thomson argues that we
should not grant deference to LIRC because it has little experience in
determining whether bundle haulers are employees. We disagree. LIRC's
expertise lies in determining whether Wisconsin workers are
"employees." Cf. School
Dist. of Drummond v. WERC, 120 Wis.2d 1, 7, 352 N.W.2d 662, 666 (Ct.
App. 1984). If LIRC's decisions were
worthy of deference only if it had previously ruled on the particular type of
worker at issue in any case, the legislature would not have made LIRC's
decisions presumptively controlling. See
§ 102.23(1)(e), Stats.
Because we find no
reason to reject LIRC's conclusion, we reverse the circuit court and remand
with instructions to reinstate LIRC's decision.
By the Court.—Order
reversed and cause remanded with directions.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.