In the matter of the contribution liability,
or status, under Chapter 108, Stats., of 

NETTLETON LOGGING, INC., 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, NETTLETON LOGGING is liable for unemployment compensation contributions, including interest, as more particularly set forth in the initial determination.

Dated and mailed February 28, 1992
178 : CD4020  EE 413  EE 422  PC 715  PC 729

 /s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The employer has petitioned for review of the decision that the cutters and the bookkeeper who provided services to the employer are employes of Nettleton Logging. Although the employer satisfied the Appeal Tribunal and the Commission that it did not exercise direction or control over these employes, it did not prove that they were engaged in independently established businesses. The status of employes in the logging industry is governed both by Sec. 108.02 (12), Stats. and by Wisconsin Administrative Code ILHR Chapter 107. As to the cutters, the employer did not prove that they were in independently established businesses under either formula. The cutters did not negotiate contracts with the employer to cut timber but provided services so that the employer could fulfill its contracts with the paper company. They did not independently negotiate their compensation but were paid by industry standard. They had no business that they could sell or give away without restriction because they had no name recognition, did not advertise, and had no customer list. They had no expectation of profit or risk of loss except for their wages. Although they did have a monetary investment in the tools of their trade, the Commission has long held that mere investment in the tools of the trade is not a sufficient proprietary interest to establish an independently established business. It was not proved these cutters had any other customers for their services except the employer and while the employer asserted they were free to solicit contracts, it was not proved that they ever did so. Since the employer was unable to meet the independently established business test, the Commission must conclude these cutters are employes.

As to the bookkeeper, the employer did not offer any credible evidence that she was engaged in an independently established business.  It is the employer's burden to prove that an employe meets both tests of the statute. Nettleton was unable to testify whether she performed services for others, whether she advertised, whether she had an investment in equipment, a business name, or a customer list. Since she clearly provided services which were integrated into the employer's business, the Appeal Tribunal correctly found she was an employe for purposes of the unemployment compensation statutes.

In its petition, the employer also requests a trial by jury. It argues that it cannot expect an impartial decision when both the judge and the prosecutor in this matter work for the Department of Industry, Labor and Human Relations. First, the Commission would note that the Labor and Industry Review Commission is an independent body. The Commissioners do not work for DILHR and are empowered by the legislature to independently review all Department decisions and make independent findings of fact and conclusions of law. The Commission has made its own decision in the case based on the evidence in the record, and it has done so without bias. It has adopted the Findings of Fact and Conclusions of Law of the Administrative Law Judge as its own findings and conclusions because it arrived at those same findings and conclusions after conducting an independent review of the evidence. The Commission is therefore confident that the employer has received a fair decision.

Second, the appellant is not entitled to a jury trial in an unemployment compensation proceeding. Unemployment compensation is a statutorily created program. The Statute, Chapter 108, Stats., provides for due process in a disputed claim with an administrative hearing, commission review of its decision, and finally judicial review. There is no provision in this chapter for a jury trial. The employer has no constitutional right to a jury trial because the unemployment compensation program was created after the state and federal constitutions were adopted. "Neither the state nor the federal constitutions guarantee or preserve the right of trial by jury except in those cases where it existed when the constitutions were adopted, and cases substantially similar thereto, and the constitutional guarantee does not apply to a statutory proceeding not in the nature of a suit at common law." 1 Am. Jur. 2d Administrative Law sec. 153; General D. & H. Union v. Wisconsin E.R. Board, 21 Wis. 2d 242, 252, 124 N.W. 2d 123 (1963).

For the foregoing reasons, the Commission affirms the finding of the Appeal Tribunal that these drivers are employes for unemployment compensation purposes.

cc:
Jorge L Fuentes
Enforcement Section

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