Star Line Trucking Corp. v. Department of Industry, Labor & Human Relations ( 1982 )

STEINMETZ, J.

The issues in the case are:

(1) Does the equipment lease clause mandated by Wisconsin Administrative Code sec. PSC 60.03 (2)¹ by itself determine the control necessary to defeat the employee exemption under sec. 108.02(3) (a) and (b), Stats.,² and therefore create an employer-employee relationship for purposes of unemployment compensation ?

(2) Is the commission’s decision supported by credible and substantial evidence on the record as a whole?

(3) If the court finds the truck operators were petitioner’s employees, was there any error by the Department of Industry, Labor and Human Relations (DILHR) or the Labor and Industry Review Commission (LIRC) in determining the proper amount of unemployment compensation tax to be assessed to the petitioner?

On February 16, 1976, DILHR conducted an audit of Star Line Trucking Corporation’s (Star Line) employment records for the period January 1, 1975, through December 31, 1975, pursuant to its authority under sec. 108.21(1), Stats.³

On April 30, 1976, pursuant to sec. 108.21(2), Stats.,⁴ DILHR mailed an audit report to Star Line which informed Star Line that unemployment compensation contributions (taxes), along with late filing penalties and interest, were then due for the second, third and fourth quarters of 1975 in the amount of $4,586.12. Thereafter, on May 17, 1976, Star Line filed a timely request for a hearing in accordance with sec. 108.10(1), Stats.⁵

On June 28, 1976, DILHR conducted an audit of Star Line’s employment records for the period January 1, 1975, through March 31, 1976. On August 3, 1976, DILHR mailed an initial determination, adopting and incorporating by reference an audit report which assessed Star Line for delinquent unemployment contributions (taxes), late filing penalties, and interest for all of 1975 and the first quarter of 1976, for a total amount of $7,830.89. On August 25, 1976, Star Line filed a request for a hearing which was untimely because it was not filed within the 20 days prescribed by sec. 108.10(1), Stats. Accordingly, on September 20, 1976, a decision was issued by the appeal tribunal dismissing Star Line’s request for a hearing regarding the June 28, 1976, initial determination. Subsequently, Star Line filed a timely petition for review by the Labor and Industry Review Commission under sec. 108.10(2), Stats.⁶

On July 28, 1977, the Labor and Industry Review Commission affirmed the decision of the appeal tribunal which had dismissed Star Line’s untimely request for a hearing regarding the initial determination and audit report dated August 3, 1976. It subsequently came to the attention of the commission that no appeal tribunal hearing had ever been held or scheduled in response to Star Line’s timely request for a hearing relative to the matters in the audit report issued on April 30, 1976. Accordingly, pursuant to authority granted in sec. 108.09(6) (d), Stats., the commission ordered on January 9, 1978, that its previous decision of July 28, 1977, be set aside and that testimony be taken before a hearing examiner, acting as a deputy for the commission, with respect to the merits of the case. The commission order of January 9, 1978, was amended on January 25, 1978, to correct a technical error in the language.

A hearing was held on July 10, 1978, before an examiner, acting as a deputy of the Labor and Industry Review Commission. Before any testimony was taken, it was stipulated between DILHR and Star Line, on the record, that the amount of unemployment tax delinquency stated in the initial determination and audit report of August 3, 1976, was correct for the period January 1, 1975, through March 31, 1976, if it was ultimately decided that the contract truck drivers who performed services for Star Line were to be considered employees for purposes of the Unemployment Compensation Act (ch. 108, Stats.).

On December 6, 1978, the Labor and Industry Review Commission issued its decision on the merits of this case, finding that the services of all drivers operating trucks leased to Star Line during the quarters in question, were performed as employees, within the meaning of sec. 108.02(3), Stats. The LIRC confirmed Star Line’s liability for unemployment compensation contributions (taxes), penalties and interest as set forth in the audit report of April 30, 1976, and the stipulation of the parties of July 10,1978.

Star Line commenced an action for judicial review of the commission decision, in Milwaukee County circuit court, on December 30, 1978, pursuant to secs. 108.10 (4),⁷ 108.09 (7),⁸ and 102.23(1), Stats.⁹ The Honorable Patrick T. Sheedy, in a memorandum decision issued June 19, 1980, reversed the decision of the Labor and Industry Review Commission and found that the truck drivers in question were not employees within the meaning of sec. 108.02(3). On July 15, 1980, the circuit court entered a judgment in favor of Star Line and against DILHR, reversing the findings, conclusion, decision and order of the Labor and Industry Review Commission and remanded the matter to said commission with directions that its findings, conclusion, decision and order be set aside.

“(4) The employer may commence action for the judicial review of a commission decision hereunder, provided said employer, after exhausting the remedies provided hereunder, has commenced such action within 30 days after such decision was mailed to his last known address. The scope of judicial review, and the manner thereof insofar as applicable, shall be the same as that provided in s. 108.09(7).”

DILHR appealed the circuit court judgment to the court of appeals. The court of appeals, in an unpublished per curiam opinion, reversed the circuit court and found that the owner-operators were clearly employees within the meaning of sec. 108.02 (3) (a), Stats.

DILHR is an agency of the executive branch of Wisconsin state government. Among other responsibilities, DILHR is charged by the legislature with responsibility for the administration, implementation and enforcement of the Unemployment Compensation Act, ch. 108, Stats.

Star Line is a Wisconsin business corporation formed in 1961 and engages in the bulk trucking of commodities. It owns no hauling equipment but relies exclusively upon subcontracting its hauling operations to contractor-lessors.

During the period of time in question (January 1, 1975, through March 31, 1976), the relationship between Star Line and its drivers, who own their own trucks, was reduced to a written contract. Contracts made between Star Line and its owner-drivers between January 1, 1975, and December 31, 1975, were denominated as “Equipment Lease Agreement” and were for a term of one year. Such contracts included the following provisions :

“ (2) Said above described equipment shall, during the term of this lease agreement, be under the exclusive possession and control of Lessee [Star Line] and Lessee shall assume full responsibility to the public, shippers, Public Service Commission of Wisconsin, Motor Vehicle Department of Wisconsin and other regulatory bodies having jurisdiction over its operations.”

“(3) All persons driving the described vehicle while under the possession, control or use of Lessee [Star Line] shall be employees of the Lessee and under control of Lessee.”

“(6) Lessor [owner-driver] further agrees that he will personally drive the described equipment, or will furnish a substitute drive [sic] for such purpose such substitute drive [sic] to be subject to approval of Lessee [Star Line] as to fitness: it is understood that said drive [sic] shall be a direct employee of Lessee and under the direction and control of Lessee insofar as to the driving of said vehicle is concerned, and Lessee, as the direct employer of said driver shall be responsible for the actions of said driver to any regulatory bodies controlling operation of the described equipment or any third parties affected by reason thereof: further, Lessee shall pay said driver, whether it be Lessor or substitute driver, directly, payment for said driving to be by separate check at prescribed union scale for said driving, and subject to all driver benefits as designated in contracts in effect with Teamsters Local 200; it is understood between Lessor and Lessee that all said wages or benefits paid to said driver, whether it be Lessor or substitute driver, by Lessee in accordance with this agreement shall be deducted from the compensation due Lessor for the use of the described equipment earned under this lease.”

“(12) Either party may terminate this Lease agreement by giving thirty (30) days notice in writing to the other.”

The written contracts between Star Line and its owner-drivers after January 1, 1976, were denominated as “Equipment Agreement” and were for a term of three months, with automatic, month-to-month renewal thereafter. The agreement in the record was not executed. These contracts, if any, that were in force between January 1, 1976, and March 31, 1976, contained the following provisions, among others:

“ARTICLE 7. —Subject at all times to the other provisions of this Agreement, the equipment aforesaid shall be operated for CARRIER [Star Line] in order to satisfactorily and safely effect the carriage of products, and during the term hereof, shall be furnished and operated, in carrier’s business at all times required by the CARRIER, and during said times shall be operated only in connection with transportation performed by the CARRIER under its certificates as a contract or common motor carrier.”

“ARTICLE 10. —All identification plates required by aforementioned governmental and regulatory bodies shall be displayed on CONTRACTOR’S equipment during the term of this Agreement and upon termination hereof, said plates shall be removed and delivered to the CARRIER [Star Line]. . . .”

“EXCLUSIVE POSSESSION <& CONTROL

“As required by Wisconsin Administrative Code Section PSC 60.03 and the Interstant [sic] Commerce Commission, the CARRIER [Star Line] and CONTRACTOR [owner-driver] agree that the motor vehicle equipment described in this ‘Equipment Agreement’ when operated in connection with transportation under the CARRIERS license as a contract or common motor carrier shall be in the exclusive possession, control and use of the CARRIER during the term of this Agreement and the CARRIER hereby assumes full responsibility to the public, the shippers and all regulatory agencies having jurisdiction, for the operation of said motor vehicle equipment during the entire period of the Agreement.”

Star Line acknowledged having used the two differently entitled subcontracting agreements referred to, but claims its relationship, understanding and practice with the lessors did not vary in any degree during the entire period.

The 1976 unsigned agreement, besides containing the provision relating to “Exclusive Possession & Control” had the following clauses:

‘TV. RELATIONSHIP — It is the intention of the parties and acknowledged by the parties that neither the CONTRACTOR nor any of its employees shall be deemed to be agents, servants, or employees of the CARRIER for any purpose whatsoever but the CONTRACTOR is and shall be an independent contractor and is subject to the CARRIER merely as to the results to be accomplished and not as to the means and methods for accomplishing the results.”

Under “Terms and Conditions” of the 1976 agreement, the following was stated:

“ARTICLE 1. —The CONTRACTOR shall have exclusive responsibility and control to direct the operation of its equipment and its employees in all respects, including but not limited to such matters as establishing work rules, assignment of equipment to drivers, rejection of any loads, operation, lawful routes, points of service or repair of equipment, rest stops, parking and storage when not in use, etc., except that CONTRACTOR shall fully and efficiently perform the results required by this Agreement.”

The court of appeals cited Stafford Trucking, Inc. v. ILHR Dept., 102 Wis. 2d 256, 306 N.W.2d 79 (Ct. App. 1981) and stated that in Stafford that court decided that inclusion of Wis. Adm. Code Sec. PSC 60.03(2), which is required in leases of this nature, established that the lessor “unquestionably has the right and power to direct and control the owner-operators’ conduct. It is immaterial whether the right or power to control is in fact exercised as long as the right to exercise such control exists.” Id. at 263.

We do not interpret the decision in Stafford as holding that the inclusion of the PSC clause is conclusive on the issue of employer control. In the Stafford case, the lease had additional clauses, besides the PSC clause which denoted control. Stafford reserved “ ‘the right to control the manner, means and details of, and by which the driver . . .’ of the leased equipment performs the service, as well as the ends to be accomplished.” Id. at 263. Also under the Stafford lease, it was stated that “the drivers further agree that the trucks are ‘solely and exclusively under the possession, direction, and control’ of Stafford.” Id. at 263.

Moreover, in Stafford, the court of appeals found that Stafford’s practices also evidenced control over the owner-operators. Id. at 263.

This court recognizes that the exception contained in sec. 108.02(3) (b)l, Stats., requires freedom from control or direction, both under the contract and in fact and that the inclusion of sec. PSC 60.03(2) alone, arguably constitutes contractual control. However, these types of clauses are intended solely to promote the safe operations of trucks and to ensure continuous financial responsibility so that truck-related losses do not go uncompensated. The clause protects both the highway-traveling public and the segment of the public directly using trucking services. See N.L.R.B. v. Deaton, Inc., 502 F.2d 1221, 1224-25 (5th Cir. 1974), cert. denied 422 U.S. 1047 (1975). The PSC clause was not designed to deny the application of the statutory exception contained in sec. 108.02(3) (b) 1 and 2 and determine the employer-employee relationship.

In reviewing questions of law:

“[T]his court does defer to a certain extent to the legal construction and application of a statute by the agency charged with enforcement of that statute. We are further guided by the rule of review under which, as to questions of law, we will not reverse a determination made by the enforcing agency where such interpretation is one among several reasonable interpretations that can be made, equally consistent with the purpose of the statute.” (Footnotes omitted.) De Leeuw v. ILHR Dept., 71 Wis. 2d 446, 449, 238 N.W.2d 706 (1976).

Since the PSC clause is required solely to promote safety and financial responsibility among carriers, we find that DILHR’s interpretation of the clause establishing employer control is not an available one.

It is the motor vehicle that must be under the possession, control and use of the authorized carrier so the carrier is chargeable with the “full responsibility to the public, the shippers,¹⁰ and all regulatory agencies having jurisdiction.” There is no mention of responsibility to the operators or suggestion they are to be considered employees of the carrier. The drivers are not within the class receiving the protective benefit of PSC 60.03(2). The result of the exclusive possession, control and use of the motor vehicle is for the carrier to assume complete responsibility to and for the protected classes, i.e., public, shippers and all regulatory agencies having jurisdiction.

Accordingly, we hold that the mere inclusion of sec. PSC 60.03(2) does not alone establish the control and direction criteria necessary to qualify the owner-operators as employees as defined in sec. 108.02(3) (b), Stats.

In looking at the contractual terms and facts and circumstances of this case, we find other clauses in the 1975 contract that do establish the carrier’s control over the owner-operators. Those provisions were referred to in the decision of the LIRC as follows:

“All persons driving the described vehicle while under the possession, control or use of Lessee shall be employees of the Lessee and under control of Lessee.” (contract clause 3.)

“Lessor further agrees that he will personally drive the described equipment, or will furnish a substitute drive [sic] for such purpose such substitute drive [sic] to be subject to approval of Lessee as to fitness: it is understood that said drive [sic] shall be a direct employee of Lessee and under the direction and control of Lessee insofar as to the driving of said vehicle is concerned [sic], and Lessee, as the direct employer of said driver shall be responsible for the actions of said driver to any regulatory bodies controlling operation of the described equipment or any third parties affected by reason thereof .. . (contract clause 6.)

These contractual provisions in the 1975 contract were sufficient to make unavailable to lessee (Star Line) the exception contained in sec. 108.02(3) (b)l, Stats., since they provided Star Line control or direction over the owner-operator under the contract, and it was not necessary therefore to consider the factual relationship between the lessee and lessor.

Therefore, the Labor and Industry Review Commission’s determination that the owner-operators were employees of Star Line for purposes of unemployment compensation contributions by Star Line is affirmed for the period covered by the 1975 contract.

The 1976 contracts have different provisions than the 1975 contracts. Clauses 3 and 6 of the 1975 agreement do not appear in the 1976 contracts. The commission determined the owner-operators were not free of control or direction for performance of services, both under contract and in fact. Since we find no contractual control or direction, we must examine whether there was control or direction in fact.

Sec. 102.23 (6), Stats.,¹¹ reads as follows:

“(6) If the commission’s order or award depends on any fact found by the commission, the court shall not substitute its judgment for that of the commission as to the weight or credibility of the evidence on any finding of fact. The court may, however, set aside the commission’s order or award and remand the case to the commission if the commission’s order or award depends on any material and controverted finding of fact that is not supported by credible and substantial evidence.’’ (Emphasis added.)

The relevant evidence that was before the commission as to the performance of services in fact evidencing lack of control was:

(1) The drivers were considered “skilled operators” who owned their own truck equipment.

(2) The drivers assumed responsibility for their vehicle maintenance, insurance and trip expenses.

(3) The drivers sometimes refused to haul loads offered by Star Line.

(4) The drivers sometimes engaged helpers to assist them in performing services for Star Line.

(5) Star Line could complain to the drivers and/or terminate the equipment lease agreement. Star Line never exercised this termination right during the period involved.

(6) During the contract period, several contractor-lessors terminated the relationship in response to Star Line’s complaints concerning vehicles being unavailable due to their use for other authority holders or traffic and weight violations during performance of the hauling contracts.

(7) The lessors were free to, and did on occasion, reject hauling contracts from Star Line.

(8) The means of performance, namely, which piece of equipment and which driver would be used as well as the starting, completion and elapsed time, the loading, the routes used and number of stops, were within the control and under the supervision of the lessor’s drivers.

As opposed to this evidence of lack of control in fact by Star Line over the drivers, DILHR argues the record showed:

(1) Star Line expected the drivers to haul loads for which Star Line had contracted with a customer and would pressure a reluctant driver to accept a load.

Comment: However, pressure applied without a demonstrable result is not exercising control.

(2) Star Line attempted by contract to restrict the drivers from seeking other employment.

Comment: The attempt to convince the drivers to obey the contract cannot be said to be exercising control over them.

(3) Petitioner has the right to terminate the services of a driver at any time, with notice, for any reason, including misconduct.

Comment: However, there is no evidence in the record of any terminations.

(4) Although the drivers owned their trucks, they operated them with Star Line’s decal displayed on the door and under ICC authority and PSC permits held by Star Line.

Comment: This was required to identify the hauling authority under which it was being made.¹²

The evidence which DILHR relied on does not demonstrate that Star Line in fact controlled the drivers as spelled out in the statutory exception. The findings of fact of the commission were not supported by “credible and substantial evidence.”

Star Line states that one of the issues is whether the contribution base used for payroll in the unemployment compensation audit was properly established at 30 % of the rental payment to represent the driver services. However, at the initial hearing before the examiner, the parties stipulated the appropriateness of that figure. DILHR’s counsel stated the figures were acceptable and not attackable and Star Line’s counsel agreed. The liability figures of the audit were agreed to and the only issue was- whether the drivers designated as contractors were independent agents and therefore not employees subject to payroll contributions. The figures were not disputed and therefore no challenging evidence was presented which requires this court to review. Nor does this record require the resubmission of the case to the commission for further determination since there was no reservation of this issue in the record.

By the Court. — The decision of the court of appeals is affirmed in part and reversed in part.

Beilfuss, C. J., took no part.

1 PSC 60.03(2), Wisconsin Administrative Code, provides:

“PSC 60.03 Lease of motor vehicle. A lease for the use of a motor vehicle, except interchanged vehicles subject to Wis. Adm. Code section PSC 60.04 hereof, must comply with each of the following requirements:

“(2) Shall provide for the exclusive possession, control, and use of the motor vehicle involved by the authorized carrier and the complete assumption by such authorized carrier of full responsibility to the public, the shippers, and all regulatory agencies having jurisdiction, during the entire period of the lease, except that a lease for the use of vehicles by authorized interstate or intrastate carriers of household goods as defined by the interstate commerce commission and the public service commission of Wisconsin, respectively, and while being used to transport such household goods exclusively, are required to comply with this subsection only while such vehicle is being operated by them. This exception shall apply as long as a similar exception is in effect by the interstate commerce commission or unless otherwise ordered by the public service commission of Wisconsin.”

2 Sec. 108.02(3) (a) and (b), Stats., provides:

“(3) Employe, (a) ‘Employe’ means any individual who is or has been performing services for an employing unit, in an employment, whether or not the individual is paid directly by such employing unit; except as provided in par. (b) or (e).

“(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 service 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.”

3 Sec. 108.21(1), Stats., provides:

“108.21 Record and audit of payrolls. (1) Every employer of one or more persons in Wisconsin shall keep such a true and accurate employment record for each individual employed by him, including full name, address and social security number, as will permit determination of the weekly wages earned by each such individual from him, and shall furnish to the department upon demand a sworn statement of the same. Such record and any other records which may show any wages paid by the employer shall be opened to inspection by any authorized department representative at any reasonable time.”

4 Sec. 108.21(2), Stats., provides:

“(2) The findings of any such authorized representative of the department, based on examination of the records of any such employer and embodied in an audit report mailed to the employer, shall constitute a determination within the meaning of s. 108.10 and said section shall apply accordingly.”

5 Sec. 108.10(1), Stats., provides:

“108.10 Settlement of issues other than benefit claims. In connection with any issue arising under this chapter as to any liability, of an employer of one or more persons in Wisconsin, for which no review is provided under s. 108.09 and with respect to which no penalty is provided in s. 108.24, the following procedure shall apply:

“(1) A deputy designated by the department for the purpose shall investigate the existence and extent of any such liability, and may issue an initial determination accordingly; provided, however, that such a deputy may set aside or amend any such determination at any time on the basis of subsequent information or to correct a clerical mistake. A copy of each determination shall be mailed to the last known address of the employer affected thereby. The employer may request a hearing as to any matter therein, by filing such request with the deputy within 20 days after such mailing and in accordance with such procedure as the department may by rule prescribe.”

6 Sec. 108.10 (2), Stats., provides:

“(2) Any hearing duly requested shall be held before an appeal tribunal established as provided by s. 108.09(4), and s. 108.09(3) and (5) shall be applicable to the proceedings before such tribunal. Within 20 days after the appeal tribunal’s decision is mailed to the employer’s last-known address, the employer may petition the commission for review thereof pursuant to general department rules. On review, the commission may affirm, reverse, change, or set aside the decision of the appeal tribunal on the basis of evidence previously submitted in such case, or set aside the decision and remand the case to the department for further proceedings.”

7 Sec. 108.10 (4), Stats., provides:

8 Sec. 108.09(7), Stats., provides:

“(7) Judicial review, (a) Either party may commence judicial action for the review of a decision of the commission under this chapter after exhausting the remedies provided under this section if the party has commenced such judicial action in accordance with s. 102.23 within 30 days after a decision of the commission is mailed to a party’s last-known address.

“(b) Any judicial review under this chapter shall be confined to questions of law, and the provisions of ch. 102 with respect to judicial review of orders and awards shall likewise apply to any decision of the commission reviewed under this section. In any such judicial action, the commission may appear by any licensed attorney who is a salaried employe of the commission and has been designated by it for this purpose, or at the commission’s request by the department of justice.

“(c) If, as a result of judicial review of a commission decision denying an employe’s eligibility for benefits, it is finally determined that benefits are payable, they shall be calculated as of the date of the commission’s decision.”

9 Sec. 102.23(1), Stats., provides in part:

“102.23 Judicial review. (1) .... Within 30 days from the date of an order or award made by the commission either originally or following the filing of a petition for review with the department under s. 102.18 any party aggrieved thereby may by service as provided in par. (2) commence, in circuit court, an action against the commission for the review of the order or award, in which action the adverse party shall also be made a defendant. . . .”

10 The term “shipper” is not defined in the PSC code. It is commonly understood to mean the owner or person for whose account the carriage of goods is undertaken. Norman G. Jensen, Inc. v. Federal Maritime Commission, 497 F.2d 1053, 1056 (8th Cir. 1974). Webster’s Third New International Dictionary (1967) defines “shipper” as one that sends goods by any form of conveyance.

11 Sec. 102.23(6), Stats., was created by ch. 196, Laws of 1977.

12 Sec. 194.09, Stats., provides:

“194.09 Marking carrier vehicles. Each motor vehicle for which a common carrier permit, a contract carrier permit or a private carrier permit is issued, shall be plainly marked in such manner as the department may prescribe, so as to identify such motor vehicle as being operated under such a permit.”