SILVER LADY ESCORT, Employer

Pursuant to the timely petition for review filed in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and finds that the Appeal Tribunal's findings of fact and conclusions of law are supported thereby. The Commission therefore adopts the findings and conclusions of the Appeal Tribunal as its own.

The decision of the Appeal Tribunal is affirmed. Accordingly, the employer, Mary Lu Lubenske, d/b/a Silver Lady Escort, is subject to the provisions of the Wisconsin unemployment compensation law effective January 1, 1988, and is liable for contributions, late filing fees, and interest for the four calendar quarters of 1988 and the first three calendar quarters of 1989 consistent with the stipulation entered into between the Department and the employer.

Dated and mailed November 5, 1993
132 : CD4138   EE 421

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: This decision is being reissued because the Commission inadvertently failed to mail a copy of the decision to the employer's attorney.

The appellant has petitioned for Commission review of the adverse Appeal Tribunal Decision which found that individuals who performed services as drivers for the appellant's pilot (escort) vehicle business did so as employes. The appellant's attorney first argues in the petition for review that the provisions of Chapter ILHR 105 of the Wisconsin Administrative Code apply in this case. The Commission disagrees.

Section ILHR 105.001 (1) defines a "carrier" as a person engaged in the hauling of passengers or freight by motor vehicle and includes a person engaged as a "common motor carrier," under section 194.01 (1), Stats., as a "contract motor carrier," under section 194.01 (2), Stats., or as a "private motor carrier," under section 194.01 (1), Stats. In this case, the appellant is not engaged in the business of hauling passengers or freight by motor vehicle. The appellant does not haul anything. The appellant simply provides required escort services for employers who do haul passengers and/or freight by motor vehicle. Further, section ILHR 105.001 (2) defines a "contract operator" as an "individual who contracts to lease a motor vehicle to a carrier for use in the carrier's business." In this case, the individual drivers and the appellant never entered into a "lease" arrangement. The individual drivers simply used their vehicles to perform services for the appellant.

The appellant's attorney correctly notes that Chapter ILHR 105 was enacted pursuant to the Wisconsin Supreme Court decision Star Line Trucking v. DILHR, 109 Wis. 2d 266 (1983). In Star Line the contract operator and carrier were operating under a written lease. Further, the lease incorporated provisions required by law to the effect that the lessee (carrier) had exclusive possession, control, and use of the lessor's vehicle, and assumed full and complete responsibility to the public, the shippers, and to all state and regulatory bodies or authorities, etc. It was that lease agreement that originally led to the finding that the carrier in Star Line, had direction and control over the contract operator. However, the Supreme Court pointed out that the lease involved in Star Line, provided the carrier with direction and control over the motor vehicle and not the operator of that vehicle. See also Wisconsin Cheese Service, Inc. v. DILHR , 115 Wis. 2d 573 (Ct. App. 1983); Stafford Trucking, Inc. v. DILHR , 102 Wis. 2d 256 (Ct. App. 1981). As previously indicated, there was no lease arrangement between the appellant and the individual drivers and thus no arrangement whereby the appellant's direction and control was over the motor vehicle and not the operator of the vehicle.

The Commission agrees with the Appeal Tribunal that the facts, as set forth in the Appeal Tribunal Decision, established that the appellant did have direction and control over the services performed by the individual drivers (or had, at the very least, the right to direct and control such services) and that the appellant failed to establish that those services were performed in independently established trades, businesses or professions in which the individual drivers were customarily engaged. For these reasons, the Commission affirms the Appeal Tribunal Decision.

cc: 
Attorney Peter Zeeh
Attorney Richard A Westley

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