McPherson Timberlands, Inc. v. Unemployment Ins. Com'n

• Decision Date: 17 July 1998
• Docket Number: Docket No. P
• Citation: 714 A.2d 818
• Parties: McPHERSON TIMBERLANDS, INC. v. UNEMPLOYMENT INSURANCE COMMISSION. en-97-488.
• Court: Maine Supreme Court

Page 818

714 A.2d 818

1998 ME 177

McPHERSON TIMBERLANDS, INC. v. UNEMPLOYMENT INSURANCE COMMISSION.

Docket No. Pen-97-488.

Supreme Judicial Court of Maine.

Argued April 9, 1998.

Decided July 17, 1998.

Spencer Ervin, Largay Law Offices, P.A., Bangor, William S. Wilson, Jr. (orally), Portland, for plaintiff.

William S. Wilson, Jr., Portland, for Maine Forest Products Council, Amicus Curiae.

Andrew Ketterer, Attorney General, Gwendolyn D. Thomas (orally), Pamela Waite, Asst. Attys. Gen., Augusta, for defendant.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.

SAUFLEY, Justice.

¶1 McPherson Timberlands, Inc. appeals from the judgment of the Superior Court (Penobscot County, Mead, J.) affirming the Unemployment Insurance Commission's decision that timber harvesting services performed for McPherson by Albert W. Withee constituted employment pursuant to 26 M.R.S.A. § 1043(11)(E) (1988). Specifically, McPherson argues that the Commission erred in finding that Withee's timber harvesting work was neither outside the usual course of McPherson's timber management and marketing business nor performed outside all the places of that business. We affirm the judgment.

¶2 McPherson is in the business of managing and marketing forest products from its own land and the land of others. It advertises its interest in buying timber from other landowners through both mailings and word of mouth. When McPherson enters into agreements with landowners, its agreements provide either that McPherson "is engaged in the business of felling and hauling timber" and "is able and willing fully to cut the specified timber on said lands and haul and deliver said timber," or that McPherson handles "the organization of the harvest and delivery of forest products to mill destinations including layout and supervision, providing the necessary men and equipment, state permiting [sic] and administrative reporting." ¹ Although McPherson did, at one time, harvest timber with the use of its own equipment, it does not currently own the equipment necessary for timber harvesting. It therefore enters into arrangements with woodcutters who have access to this equipment for the actual harvest of timber. It then sells the harvested timber to various paper companies and sawmills, deriving as much as two-thirds of its total profit from these sales.

¶3 In December 1993, McPherson contracted with a landowner to harvest timber from the landowner's Mariaville property. McPherson then entered into an agreement with Withee whereby Withee would harvest timber for McPherson from the Mariaville property. The agreement specified that Withee was to harvest only trees with a minimum diameter of six inches, that McPherson would pay Withee directly for his services, and that Withee would be responsible for all labor, material, tax, and insurance expenses associated with the harvesting operation. The agreement contained no reference to the owner of the Mariaville property.

¶4 Withee's work at the Mariaville property involved inspecting trees, determining which trees met the six-inch minimum diameter specification, and cutting those trees. He provided his own skidder and chainsaw, paid his own taxes and insurance, and set his own schedule. Although McPherson did not provide Withee with any training, it did monitor his work to ensure that he complied with state law and with the landowner's goals. Withee, however, had no contact with the landowner and assumed that McPherson owned the property. Once a week, a McPherson forester would visit the property to check on Withee's progress. If the forester discovered trees that should have been cut but were not, he marked them and instructed Withee to cut them. McPherson also paid Withee directly for his work.

¶5 After he completed his work at the Mariaville property, Withee filed an application for unemployment benefits, identifying McPherson as his most recent employer. The Department of Labor, Bureau of Employment Security, Unemployment Compensation Tax Division investigated Withee's claim and determined that Withee's work for McPherson constituted employment and that McPherson was liable to the State for unemployment taxes relating to that employment. McPherson appealed that determination to the Unemployment Insurance Commission. The Commission affirmed the agency's determination twice, once after an initial evidentiary hearing and again after hearing additional evidence in response to McPherson's request for reconsideration. Following reconsideration, the Commission found that McPherson failed to prove that Withee's timber harvesting work was outside the usual course of McPherson's timber management and marketing business or that Withee's work was performed outside all of McPherson's places of business pursuant to 26 M.R.S.A. § 1043(11)(E)(2), otherwise known as part B of the ABC test. McPherson sought review of the Commission's decision in the Superior Court pursuant to 26 M.R.S.A. § 1194(8) (Supp.1997), 5 M.R.S.A. § 11001-11007 (1989), and M.R.Civ.P. 80C. The court affirmed the decision of the Commission, and this appeal followed.

¶6 Where, as here, the Superior Court reviews a decision of the Commission as an intermediate appellate court, we review the Commission's decision directly. See Gerber Dental Ctr. Corp. v. Maine Unemployment Ins. Comm'n, 531 A.2d 1262, 1263 (Me.1987). Our review of the Commission's decision is limited to determining whether the Commission correctly applied the law and whether its fact findings are supported by any competent evidence. See Outdoor World Corp. v. Maine Dept. of Labor, Unemployment Ins. Comm'n, 542 A.2d 369, 371 (Me.1988). We will not disturb a decision of the Commission unless the record before the Commission compels a contrary result. See id.

¶7 26 M.R.S.A. § 1043(11)(E), otherwise known as the ABC test, provides that:

Services performed by an individual for remuneration shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the bureau that:

(1) ["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 service and in fact;

(2) ["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 all of the places of business of the enterprise for which such service is performed; and

(3) ["C"] Such individual is customarily engaged in an independently established trade, occupation, profession or business.

The putative employer bears the burden of rebutting the presumption of employment created by this provision and must meet that burden as to each of the provision's three parts. See Gerber, 531 A.2d at 1263. Although McPherson met its burden regarding parts A and C, it failed to convince the Commission on either of the two alternative prongs of part B of the ABC test. McPherson must therefore establish on appeal that the record before the Commission compelled it to find either that Withee's services were outside the usual course of McPherson's business or that his services were performed outside of all of the places of McPherson's business.

I. Usual Course of Business

¶8 Describing itself as a real estate and timber management company, McPherson argues that Withee's timber harvesting work was outside the usual course of its business because it does not currently own any timber harvesting equipment and thus does not engage in the business of timber harvesting. The Commission, however, was "unwilling to countenance the specious distinction between marketing, managing and overseeing timber harvesting operations and the actual physical process of harvesting the timber." (Emphasis added). On the facts before it, the Commission found that Withee's work was not "merely incidental to" McPherson's business, but, rather, was an "integral part of" that business. Accordingly, the Commission concluded that McPherson failed to prove that Withee's services were outside the usual course of McPherson's business.

¶9 McPherson asserts that the Commission's use of the phrase "integral part of" represents an error of law because it places a higher burden on the employer than is intended by the statute. To the contrary, however, the use of phrases such as "integral part of" and "merely incidental to" represents an attempt to describe the connection between the services performed and the usual course of the business being reviewed.

¶10 Our decisions addressing part B of the ABC test reflect this attempt at description. In Maine Unemployment Compensation Comm'n v. Maine Sav. Bank, 136 Me. 136, 3 A.2d 897 (1939), a bank argued that it was not liable for unemployment taxes relating to workers hired to repair real estate owned by the bank because those workers were not engaged to perform work that was part of the bank's "usual trade, occupation, profession, or business" as required by section 19(e) of Maine's Unemployment Compensation Law (P.L.1935, ch. 192, § 19(e) (effective Dec. 18, 1936)). ² Id. at 138, 3 A.2d at 898. We agreed with the bank and concluded that the repair work for which the workers were hired was "merely incidental to" and not part of the bank's usual business. Id. at 141, 3 A.2d at 899.

¶11 A year later, relying on the "merely incidental to" language of the Maine Savings decision, an owner of two tenement houses argued that he was not liable for unemployment taxes relating to workers he hired to maintain and repair his tenement buildings because the maintenance and repair work was merely incidental to his business as an owner of real estate. See Maine Unemployment Compensation Comm'n v. Androscoggin Junior, Inc., 137 Me. 154, 164, 16 A.2d 252, 258 (1940). In contrast to the work at issue in Maine Savings, however, the repair and maintenance work at issue in Androscoggin Junior was determined to be "part of [the employer's] usual...