J.R. Simplot Co. v. State , 110 Idaho 762 ( 1986 )

SHEPARD, Justice.

This is an appeal from an order of the Industrial Commission that potato loaders are employees of Simplot and covered under the provisions of the Employment Security Law, and hence Simplot should be assessed unemployment insurance compensation taxes. We reverse.

For approximately ten years Simplot has contracted with approximately 18 teams of potato loaders in Idaho, Oregon, Nevada and Washington to load potatoes from cellars in remote locations into trucks for transportation to processing plants. One Maldonado had so contracted with Simplot for the 1982-83 loading season. At the end of that season Maldonado filed a claim for unemployment benefits which precipitated the instant controversy. The Department of Employment initially denied Maldonado any benefits, but an appeals examiner later reversed that decision. Simplot appealed to the Industrial Commission which assigned the case to a referee who heard the case de novo. The referee made findings of fact, conclusions of law, and recommended that the decision awarding Maldonado benefits be affirmed and that the potato loaders be held to be employees, covered by the Employment Security Law. The commission adopted the decision of the referee.

We note initially that the testimony before the referee was without controversy. Maldonado did not appear and did not testify before the referee. Only two witnesses testified, both on behalf of Simplot, one being the fleet trucking manager for Sim-plot and the second, a potato loader.

Simplot contracts for the purchase of potatoes from growers in Oregon, Washington, Idaho and Nevada. When harvested, the potatoes are loaded into cellars in remote locations in those states. The cellars may be owned by Simplot, the farmer, or others. The cellars are ordinarily 100 feet in width and 500 feet in length. The cellars contain a sophisticated refrigeration system to control the temperature of the potatoes whereby air is distributed through pipes approximately two feet in diameter over which the potatoes are piled. From these cellars the potatoes are loaded into trucks owned by Simplot or independent contractors, and transported various distances to Simplot processing plants.

Prior to the contract arrangement Sim-plot hired employees to do the potato loading. Those employees were paid not only wages but an expense account for meals and lodging, and Simplot furnished all of the equipment, including a pickup truck. That employee relationship was terminated, in part because of the difficulty of supervision of the employees at the remote locations. Approximately ten years ago Sim-plot began contracting the potato loading activity on a yearly basis, with the contracts usually signed in the fall season. A contract provides for payment on the basis of numbers of trucks loaded, and that rate is usually negotiated between the group of contract loaders and Simplot, in the fall. No withholding is done by Simplot for any purpose, and the potato loaders pay their own self-employment taxes. The potato loaders are required by contract to employ at least one other person, and may and do employ others at times, depending upon the severity of the work schedule.

Simplot furnishes two pieces of equipment, a loader and a “hogger,” valued at approximately $18,000.00. The potato loader is required to furnish his own pickup truck which is used to transport the loading equipment from site to site, which the testimony indicated was valued at approximately $18,000.00. The loaders also furnish their own equipment valued at up to $1,500.00 for the repair and maintenance of the loading equipment and the refrigeration equipment in the cellars. The loaders also furnish their own housing at the remote locations, which usually consists of a trailer or a recreation vehicle. The potato loaders ordinarily work a 10-12 hour day, five days a week, and sometimes the scheduling requires them to work weekends also. It is at such times that more than the one employee of the loader may be necessary. The contract specifies the method to be used in the loading of potatoes, requires that the loader keep the cellar in a clean condition free of dirt, requires that truck traffic be directed by the loaders, and regulates the persons allowed in the cellar.

Because the processing plants must have a controlled flow of delivered potatoes, the rotation of truck loads between the cellars and the processing plant is important, and hence the loaders call in to the processing plant to learn the times that the trucks will begin arriving at the cellar. The loaders’ working time usually starts at 11:00 o’clock at night, or later.

The uncontradicted testimony indicated that during the time that Simplot considered the potato loaders as employees, there were problems of supervision at the remote locations of the cellars and that those problems were one of the reasons, along with costs, for the change of potato loaders to an independent contract status:

“Q. Now, how does the contract situation resolve the supervision problem which you referred to?

“A. They do their own thing. We just tell them how many loads we want loaded daily, and they are there to do it at that time, and who the truckers are that will be loaded.

“Q. Doesn’t the contract also require a proper handling of potatoes?

“A. It does.

“Q. How do we check that?

“A. Well, we can tell by bruises, torn-up potatoes; we can physically inspect the site as far as dinged-up pipes, [refrigeration equipment in the cellar] how clean the location is that they are working in and things of that nature.

“Q. How frequent are these inspections?

“A. Oh, probably once every month; once every two months. Something of that nature.

“Q. Other than these periodic inspections, there is no on-site inspection by J.R. Simplot employees?

“A. None whatsoever.”

(Tr., Vol. 1, pp. 13-14)

The undisputed testimony indicated that Simplot was only concerned with the end result accomplished by the potato loaders, i.e., that the potatoes were not damaged in the loading process and arrived at the plant in useable condition, and that any damage that might occur to the cellars was repaired. Although other Simplot personnel did occasionally visit the work site, those persons were concerned only with the condition of the potatoes in the cellar, and not with the work performed by the potato loaders.

As above indicated, there is no dispute as to the evidence, and the only evidence presented before the referee was that of two Simplot witneses. Neither Maldonado nor the Department of Employment presented any testimony before the referee. Hence, there is no question as to the facts. Rather, it is the referee’s application of the law to those facts, and his conclusion that the seasonal potato loaders are employees of Simplot, which presents the only issue.

I.C. § 72-1316 defines “covered employment” in pertinent part as follows:

(d) Services performed by an individual for remuneration shall, for the purposes of the Employment Security Law, be covered employment unless it is shown:

(1) that the worker is free from control or direction in the performance of his work under his contract of services; and

(2) that the worker is engaged in an independently established trade, occupation, profession, or business.

The right to control test was discussed in Department of Employment v. Bake Young Realty, 98 Idaho 182, 560 P.2d 504 (1977):

“The general test of whether the right to control is sufficient to give rise to the relationship of employer and employee is whether or not the control extends to ‘... the details of the work, the manner, method or mode of doing it, the means by which it is to be accomplished, or, specifically, the details, manner, means or method of doing the work, as contrasted with the result thereof.’ ” (Citations omitted.) 98 Idaho at 184, 560 P.2d at 506. _

The evidence before the commission indicated that the potato loaders worked in remote locations without any direct supervision. While Simplot directed the specific times for loading, that determination was only pointed toward the end result of potatoes arriving at the processing plant when needed. While specific loading procedures were set forth in the contract, again those practices were merely pointed toward the end result of the potatoes arriving at the processing plant in a useable condition.

As to the requirement of engaging in an independent trade or business, the following factors are to be considered: (1) whether the worker has the authority to hire subordinates; (2) whether the worker owns major items of equipment; and (3) whether either party would be liable to the other upon peremptory termination of the business relationship. Hill v. State, Dept. of Employment, 108 Idaho 583, 701 P.2d 203 (1985); Larsen v. State, Dept. of Employment, 106 Idaho 382, 679 P.2d 659 (1984); Dept. of Employment v. Brown Bros. Const., 100 Idaho 479, 600 P.2d 783 (1979).

Here it is clear that potato loaders had authority to, and did, hire employees, and the sole responsibility for the compensation of those employees was that of the loader. Simplot exercised no control over the selection of the employees, nor how many employees the loader might hire. Likewise, the evidence is clear that while Simplot supplied two major pieces of the equipment, the potato loaders supplied all tools necessary for the maintenance and/or repair of the equipment, together with welding equipment and torches. The only testimony by a potato loader indicated that he furnished an $18,000.00 pickup truck for use on the jobs, and a $28,000.00 mobile home which was required to provide housing at the remote location.

In Department of Employment v. Bake Young Realty, 98 Idaho 182, 560 P.2d 504 (1977), we held that the furnishing of equipment test:

“is too narrow a reading of Swayne v. Department of Employment, 93 Idaho 101, 456 P.2d 268 (1969), prompted perhaps by the test’s origin in National Trailer [Convoy, Inc. v. Employment Security Agency, 83 Idaho 247, 251, 360 P.2d 994, 996 (1961)], a case involving truckers who owned their own rigs. The point is not whether the salesman owns major pieces of tangible equipment for the business, but whether he incurs substantial out-of-pocket professional expenses which are not reimbursed.” 98 Idaho at 187, 560 P.2d at 509.

Here, the contract loaders are required to, and do, provide their own food, lodging and fuel at the remote location.

We hold that as to the third factor, i.e., whether either party will be liable to the other for a peremptory termination of the business relationship, the referee-commission unduly emphasized the fact that the contract provided that Simplot had the right to cancel the agreement at any time without prior notice and without liability beyond its obligation to pay for work which had already been performed. As was well stated by Bakes, J., specially concurring in Department of Employment v. Brown Bros. Const., 100 Idaho 479, 600 P.2d 783 (1979), “There is no fixed rule stating that an employment relationship is terminable at will, but an independent contractual relationship cannot be terminated unilaterally without a breach of contract. In either case, it depends upon the agreement of the parties and they can agree one way or the other.” Undue emphasis has been placed upon the factor of peremptory termination of business relationships. While that factor may in the past have shed some light, in these times it has become less and less determinative. An employee relationship may no longer be terminable at the sole will of the employer. Likewise, in an independent contractor relationship a contract may commonly provide for a unilateral termination of the contract with no liability except for work already performed. Hence, we hold that the peremptory termination of a relationship continues to be only one of many factors to be considered, and in any case is of diminished validity standing by itself.

In sum, we hold that the conclusions drawn from the uncontroverted evidence are erroneous and are reversed. Costs to appellant.

DONALDSON, C.J., and BAKES, J„ concur.