Barney v. Department of Employment Sec., 19436

• Decision Date: 30 April 1984
• Docket Number: No. 19436,19436
• Parties: Terry BARNEY dba Terry Barney Drywall, Plaintiff, v. DEPARTMENT OF EMPLOYMENT SECURITY, Defendant.
• Court: Utah Supreme Court

Page 1273

681 P.2d 1273

Terry BARNEY dba Terry Barney Drywall, Plaintiff, v. DEPARTMENT OF EMPLOYMENT SECURITY, Defendant.

No. 19436.

Supreme Court of Utah.

April 30, 1984.

Jay Barney, Murray, for plaintiff.

K. Allen Zabel, Floyd G. Astin, Salt Lake City, for defendant.

DURHAM, Justice:

The plaintiff, Terry Barney dba Terry Barney Drywall ("Barney"), appeals from a decision of the Board of Review holding that certain individuals hired to perform services were in Barney's employ and that Barney is therefore liable for contributions to the unemployment compensation fund. We reverse.

This action results from a Department of Employment Security field audit of the Barney operation covering the period January 1, 1979, through September 30, 1982. The audit resulted in a conclusion that services performed by certain nailers and finishers constituted employment and assessed Barney for contributions, interest and penalties. There are no claimants involved in this review, and it appears that none of the individuals in question have ever made a claim for unemployment compensation against Barney.

A Department of Employment Security representative held that the individuals were performing services "in employment" for Barney in accordance with the Utah Employment Security Act, U.C.A., 1953, § 35-4-22(j)(5)(A)-(C), which states:

(5) Services performed by an individual for wages or under any contract of hire, written or oral, express or implied, 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;

(B) Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and

(C) Such individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the contract of service.

After a hearing, an appeals referee affirmed the Department's decision. The Board of Review, after considering the record and testimony, affirmed, holding that Barney did not make a sufficient showing under the "ABC test," and thus the individuals were performing services "in employment." In so holding, the Board expressly adopted the findings of fact and conclusions of law of the appeals referee.

Barney does not dispute that the nailers and finishers were under "contracts for hire" under the section, but contends that all three elements of the ABC test have been met, and therefore the services are excluded from coverage.

The issue on appeal to this Court is whether the drywall nailers and finishers hired to perform services were in Barney's employ for the purpose of unemployment contributions.

The facts are not in dispute. Barney is engaged in the drywall contracting business. He bids on the hanging and finishing of drywall in construction projects. He conducts his business out of an office in his home. After being awarded a contract, Barney typically engages the services of tradesmen known in the industry as drywall "nailers" and "finishers," whose services are in question here.

The record contains the testimony of two nailers and one finisher, who described the conduct of their business (both as to Barney and other drywall contractors) generally as follows: They do not enter into a written contract with a contractor, but after work commences they bill on a regular basis. They supply their own vehicles, some materials and all of their tools except a tape machine provided by the contractor, not directly available to them due to patent restrictions. The cost of supplies and tools is built into their bids. The nailers and finisher testified that they consider themselves self-employed, claim such on their income tax forms, and pay self-employment quarterly taxes. They agree to complete the work by necessary deadlines, but set their own hours, sometimes working for three or four contractors in one day. They are not supervised by a contractor while on the job.

The testimony also indicated that a contractor could terminate individual nailers and finishers whose work is not up to standard. Nailers and finishers guarantee their work and replace or repair with no additional compensation for the sake of their reputations. They also testified that they provide insurance for themselves and would not, if injured, apply for workmen's compensation.

Nailers and finishers generally enter the business by serving a four-year apprenticeship for a contractor such as Barney, doing the majority of their work for that contractor. Barney does not dispute that some individuals who are apprentices are in his employ. No apprentice services are in question in this case. After apprenticeship, these persons become journeymen. They generally maintain home offices, where they solicit and accept business opportunities and keep books, records and tools. They work for drywall contractors such as Barney and also accept contracts from private persons for residential drywall work. If they underbid a job, in the sense that the work is more demanding or time consuming than planned, they absorb any associated business losses, since the bids are on a square-foot basis.

A decision of the Board of Review of the Department of Employment Security, such as the one before us, is entitled to weight, but is subject to judicial review to assure that it falls within the limits of reasonableness or rationality. Utah Department of Administrative Services v. Public Service Commission, Utah, 658 P.2d 601, 610 (1983). Issues governed by this "intermediate" standard, this Court stated, include "what has...