STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

VERNON H. BRICKO, Employer
VER-NAN TRUCKING

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 336427-7, Hearing No. 6794, S


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.

DECISION

The decision of the Appeal Tribunal is affirmed. Accordingly, the employer is subject to the coverage and contribution provisions of the statutes retroactive to January 1, 1984. He is liable for the payment of contributions, late filing fees and interest in the amounts set forth in the second initial determination.

Dated and mailed June 15, 1989
110 - CD1004   EE 421

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


MEMORANDUM OPINION

The employer in this case owns three tractor trailer trucks. He had no independent carrier authority. He contracted with carriers to provide his trucks to them, on a leased basis, with drivers. Pursuant to these contracts, he entered into arrangements with persons who drove the trucks for him. The Appeal Tribunal correctly applied Hansen Trucking Inc. v. LIRC, 126 Wis. 2d 323 (1985), which held that in cases such as this, where the contractor is subject to the contribution provisions of the act by virtue of payments he makes to drivers and is therefore not himself an employe of the carriers, the persons who drive the trucks are also not employes of the carriers, but are employes of the contractor.

In its petition for review, the employer argues that the drivers in this case were not employes of anyone, but were independent contractors, relying on an assertion that the drivers had an ownership interest in the trucks which they drove. The employer also argues that, even if the drivers were employes, the Hansen Trucking case should be distinguished, and the drivers found to be employes of someone other than the contractor, because of this asserted ownership interest in the trucks.

The Commission agrees with the FINDINGS OF FACT made by the Appeal Tribunal that during the time they actually drove for the employer, the drivers involved in this case did not own trucks. Contrary to the arguments of the employer in his petition for review, there is no credible evidence that the drivers had any recognizable ownership interest in the trucks that they drove for the employer.

The employer asserted that if any drivers stayed with him "for the long haul", and for such a period of time that the trucks they were driving were actually paid off by the regular installment payments that the employer was making from his share of the receipts, that the employer intended to transfer ownership of the trucks to the drivers. Assuming for the sake of discussion that the employer did have such a subjective intent, this does not establish any actual ownership interest on the part of the drivers. No evidence whatsoever was introduced that there was any contract or agreement, written or otherwise, between the employer and any of its drivers by which the employer's asserted intention to transfer ownership of the trucks to the drivers was elevated to the level of a contractual promise. There is in fact no evidence in the record that the employer ever told any of the drivers of his asserted plan to transfer ownership of the trucks to them. The employer's argument, in its petition for review, that the employer was providing "seller financing" to the drivers, is unsupported by the record, as is the assertion that the employer would not have been free to sell the trucks and put the drivers out of work. The employer did not prove the existence of any contract of sale, whether by "seller financing" or otherwise, that the drivers could have asserted as a limitation on the right of the employer to sell the trucks. The employer's arguments, that the drivers were actually independent contractors, and that the Hansen Trucking case can in any event be distinguished, therefore fail.

cc: 
Peter W. Zeeh
Richard Westley, Westley Law Offices


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