Perma-Stone Oklahoma City Co. v. Oklahoma Employment Security Commission

WILLIAMS, Justice

(dissenting).

I do not agree with the majority opinion. It is stated therein that the jurisdiction of the Employment Security Commission is dependent upon the existence of the relationship of employer and employee and therefore a determination of the question is one of law. I fear there has been a misapprehension of the facts in the case and of the question before the court. It was stipulated by the parties that plaintiff is an employer within the provisions of the Employment Security Act and therefore subject to the provisions of such act. The only controversy between the parties here is as to the amount of contributions plaintiff is required to make for the years in controversy. The amount of such contribution is based upon the amount of wages paid during the period in question. The case, therefore, simply presents a question of fact as to the amount of wages paid by plaintiff during the period in question. The Commission’s finding as to the facts, if supported by evidence and in the absence of fraud, is conclusive. 40 O.S.1951 § 224(g). The only question before this court, there *549 fore, is whether the Commission’s findings are supported by any evidence (there, being no contention of fraud). If they are supported by any evidence, they must be affirmed. It is not only not the duty of this court to weigh the evidence and arrive at its own view of the issue, but such action is specifically prohibited by the statute, supra.

It is my view that the Commission’s findings are supported by some evidence, and must therefore be affirmed.

It is plaintiff’s contention that the remuneration paid by it to certain salesmen should not be included in computing the amount of wages paid by it because such salesmen were not employees.

The status of such salesmen, for the purpose of the Employment Security Act, is. necessarily determined by the provisions of the act itself. The pertinent portions of such act are as follows:

“ ‘Wages’ means all remuneration for services from whatsoever source,- including commissions and bonuses and the cash value of all remuneration in any medium other than cash.” 40 O.S.1951 § 229(1).

“Services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to this Act unless and until it is shown to the satisfaction of the Commission that: (a) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of hire and in fact; and (b) Such individual is customarily engaged in an independently established trade, occupation, profession, or business; or (c) Such service is outside the usual course of the business for which such service is performed and that such service is performed outside of all the places of business of the enterprise for which such, service is performed.” 40 O.S.1951 § 229(f) (5).

There is no question but that the salesmen in controversy rendered services for plaintiff and received remuneration therefor in the form of commissions. Under the provisions of 40 O.S.1951 § 229(1), above quoted, therefore, these salesmen received wages for their services. Since these salesmen performed services for plaintiff for wages, they must, under the provisions of 40 O.S.1951 § 229(f) (5), be deemed to be employees unless and until it is shown that they have been and will continue to be free from control or direction over the performance of their services and that they are either customarily engaged in an independently established trade, occupation, profession or business, or that their services are rendered outside the usual course of the business for which such services are performed and are performed outside of all of the places of business of the enterprise for which such service is performed. Plaintiff admits this to be the case, but contends that the evidence establishes that the salesmen in question were free from' control of plaintiff and were customarily, engaged in an independently established, trade, occupation, profession or business' and that they therefore should not be deemed employees.

The Commission, however, found that plaintiff had failed to show that these salesmen were free from control or that they were customarily engaged in an independently established business, and I am of the¡ opinion that the Commission’s findings are. sustained by the evidence.

The evidence reveals that plaintiff determined the amount of remuneration to be received by the salesmen, it provided the salesmen with circulars, pamphlets and other selling aids, it assisted the salesmen with instructions on financing, prices, subcontracting, etc., it instructed the salesmen that they must not make misstatements, it provided them with a printed form of order contract which they were required to use and as to the use of which they were instructed; that while such salesmen were not assigned or limited to individual territories of operation, they were limited to the area of the State of Oklahoma in which plaintiff operated; that plaintiff could and would- refuse to accept orders from sales *550 men who did not operate in a manner satisfactory to plaintiff and that plaintiff could terminate the salesman’s relationship with plaintiff at any time, for any reason, without any liability on plaintiff’s part. I do not believe such evidence establishes a lack of control on the part of plaintiff over these salesmen.

With reference to plaintiff’s contention that all these salesmen were customarily engaged in an independently established trade, occupation, profession or business, the evidence is even more weak and unsatisfactory. Plaintiff listed the names of forty-four persons on its application for refund as being the salesmen whose status is in controversy here. The only testimony offered by plaintiff was that of its secretary. While testifying, plaintiff’s secretary was handed the list of forty-four salesmen and asked to identify those persons on the list who had independent businesses. His testimony in that regard was that Fritz Hughes had.a tire shop and sold tires, Bill Wright had the Wright Roofing Company and also sold perma-stone and Pat Murphy worked for both Rascoe Window Company and plaintiff. There is no other testimony in the record in this regard. Does such testimony establish that the forty-four salesmen in question were customarily engaged in an 'independently established trade, occupation, profession or business? I think it does not and that the Commission correctly found that it did not.

Since the burden is on plaintiff to establish to the satisfaction of the Commission that the forty-four salesmen in question were free from control or direction over the performance of their services and were customarily engaged in an independently established trade, occupation, profession, or business, and since plaintiff’s evidence failed to establish either of these things, I am of the opinion that the Commission correctly denied plaintiff’s application for refund. I therefore respectfully dissent.

I am authorized to state that Mr. Chief Justice HALLEY and Mr. Justice BLACKBIRD concur with the views herein expressed.