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

T & D COILS, INC, Employer

UNEMPLOYMENT INSURANCE CONTRIBUTION LIABILITY DECISION
Account No. 640936, Hearing No. S9800147MW

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The petitioner, T & D Coils, Inc., contracts to supply services consisting of the winding, assembly and finishing of electrical coils. T & D is owned by Christina K. Sheen. Ms. Sheen and her husband started the business in 1994, assembling coils in their home. Subsequently, T & D's office was relocated outside the Sheens' home and the business began using home workers who perform the actual work of winding, assembling and finishing electrical coils (hereafter, assembly).

According to Ms. Sheen, "99%" of T & D's business comes from Altran Corp., a manufacturer of transformers. Altran supplies T & D with all materials necessary to create the coils. The materials include copper wire, cores, varnish or other coatings, blueprints and written specifications.

At issue is the employment status, under Wis. Stat. § 108.02(12), of 18 specifically identified individuals who performed assembly services in their homes for T & D in 1997. Those individuals are: Yvonne Seichter, Heather Miller, Kathleen Weber, Leslie Bolton, Vicki Dinmore and Lesley Nurczyk, Christine Sawyer, Carla Salas, Loretta Calvert, Terry Riebock and Denise Carahar, Deborah Gazda, Cindy Freitag, Sandra Wojciechowski, Patricia Tranburg, Franki Rebicek, an individual identified only as "B. C. Productions," and Elizabeth Weber.

T & D asserted that all individuals who performed coil assembly services in their homes for T & D in 1997 did so as independent contractors, and not as employes within the meaning of Wis. Stat. § 108.02(12).

Ms. Sheen acknowledged that the department had determined that home workers who performed coil assembly services for T & D throughout most of 1996 did so as employes of T & D. That determination became final prior to the start of the administrative proceedings in this case.

T & D contends that it "reorganized" its business in or around March of 1996, and that all of the individuals who performed coil assembly services for T & D in 1997 entered into written contracts with T & D whereby they became independent contractors.

The exhibits received at the hearing do not include any examples of written contracts between T & D and any of the individual home workers who performed coil assembly services for T & D in 1997. However, testimony at the hearing described the terms of the written contracts, and the administrative file contains several copies of such contracts that were sent to the department by T & D at earlier stages of the administrative proceedings.

It is not clear whether any of the 18 specifically identified assemblers, or any similarly situated individuals, knew how to perform the services in issue because they had previously performed the same services as employes of T & D in 1996. According to Ms. Sheen, "some" of the home workers knew how to do the work when they entered the alleged independent contractor relationships with T & D in 1997 and, if a new "contractor" needed to be trained, Ms. Sheen trained that individual and charged the individual $50.00 for the training.

T & D supplied the home workers with all of the materials, blueprints and specifications that T & D received from Altran. Typically, a worker would come to T & D's premises on a Monday to drop off completed coils and an invoice for his/her services in assembling that batch of coils. The worker would pick up new materials at the same time. Apparently, the reason for this routine was the fact that Ms. Sheen, according to her testimony, "give[s] out jobs on Monday." However, she also testified that workers are not required to appear on a certain day or at a certain time.

Ms. Sheen tested completed coils and deducted the per-unit remuneration for any that did not pass inspection.

Ruined material also resulted in a deduction from the assemblers' remuneration.

The home workers used some common hand tools such as hammers, side cutters, "Exacto" knives, soldering irons and soldering "pots." They supplied their own hand tools and were not reimbursed by T & D for that expense either before or during the year in issue (1997). Ms. Sheen testified that the worker-supplied tools would have an average value of about $50.00. One home worker, Carla Salas, testified that she had $200.00 worth of hand tools because she chose to purchase higher quality tools that would last. Another home worker, Christine Sawyer, testified that she spent $579.00 on hand tools in 1997.

The workers also used some more expensive tools such as winding machines and testers. T & D supplied these tools to its workers until the "reorganization" in March of 1996. At that time, according to Ms. Sheen, an unincorporated business entity called "Sheen Leasing" was created.

"Sheen Leasing" leases winders, testers, etc., to the home workers for a flat rate of $40.00 per month. The price is the same regardless of the number of coils produced by a home worker and regardless of the number of hours the leased machines are used. If a worker wants to take some time off, s/he is expected to return the leased tools to Sheen Leasing; a worker who does that is not required to pay the leasing fee for the period of time s/he is not working.

So far as the record shows, there is no difference in the lease fee regardless of the combination of tools leased. Ms. Sheen testified that the equipment provided "can be winding machines, soldering pots, soldering irons, tuskers [ph]."

The commission considers that the apparently fixed fee for leasing varying combinations of expensive equipment is inconsistent with the asserted role of Sheen Leasing as a business separate from T & D. Ms. Sheen testified that the leased tools ranged from heavy duty soldering irons, each of which cost Sheen Leasing $50.00, to winding machines costing $1,500, and "turns testers" costing $4,000.00.

Wis. Stat. § 108.02(12)(a) prescribes a statutory, rebuttable presumption that an individual performing services in an employment is an "employe." "Employment" is defined by Wis. Stat. § 108.02(15) as, essentially, services performed for pay for an employer subject to the Wisconsin Unemployment Insurance Law.

It is undisputed that T & D is an employer that has been determined to be subject to the Wisconsin Unemployment Insurance Law, pursuant to Wis. Stat. § 108.02(13)(e), and T & D has an account in the reserve fund.

It is also undisputed that all of the 18 specifically identified individuals whose employment status is in issue in this case performed services for T & D for pay in 1997.

Based on the above, Wis. Stat. § 108.02(12)(a) requires the application of an initial, rebuttable presumption that all of the individuals in issue performed their services for T & D in 1997 as employes of T & D. If T & D does not successfully rebut the presumption, T & D is liable for unemployment insurance contributions based on wages paid to the individuals for the services they performed in 1997.

A putative employer may meet its burden of rebutting the statutory presumption of employe status by showing that both of the conjunctive parts of the test for independent contractor status prescribed by Wis. Stat. § § 108.02(12)(b)1. and 108.02(12)(b)2. are satisfied.

The first conjunctive part of the test requires either: a showing that, in the year[s] in issue, any individual who is presumed to be an employe in fact held, or had applied for, a Federal Employer Identification Number (FEIN) while performing the services in issue, or a showing that the individual filed federal income tax returns as a business entity or as a self-employed individual, based on such services, for the year immediately preceding a year that is in issue.

T & D did not meet its burden under the first statutory test, by either of the prescribed alternative means, as to the following workers: Yvonne Seichter, Heather Miller, Kathleen Weber, Leslie Bolton, Vicki Dinmore and Lesley Nurczyk. None of those individuals held a FEIN in 1997 and none of them had applied for a FEIN in that year. The first four individuals listed in this group had not filed business or self-employment federal income tax returns for 1996 or 1997. The other two individuals in this group, Vicki Dinmore and Lesley Nurczyk, had filed business or self-employment returns for the year in issue--1997, but not for the previous year, as required by the statute.

T & D therefore did not meet its burden of showing that the situations of the six individuals listed above met the first of the two conjunctive statutory tests for independent contractor status.

The commission's discussion of the employment status of the six individuals identified above could end here, without addressing the second conjunctive part of the statutory test. However, the commission wishes to make clear that if the employer had met the first conjunctive part of the statutory test as to any of those six individuals, the commission would further find that the second part of the statutory test, discussed hereafter, was not met. The commission would so find because the situations of these six individuals were, in all respects material to the second statutory test, the same as the situations of 11 of the 12 individuals discussed hereafter.

Based on the commission's findings regarding the application of the first statutory test to the six individuals listed above, it must be held that all services performed by them for T & D in 1997 were performed as employes of T & D, within the meaning of Wis. Stat. § 108.02(12).

Five of the remaining 12 specifically identified individuals whose employment status is in issue testified at the hearing. They are Christine Sawyer, Carla Salas, Loretta Calvert, Terry Riebock and Denise Carahar.

It was stipulated between T & D and the department, with the approval of the administrative law judge, that the employment status of seven additional, similarly situated individuals would be addressed. That group includes Deborah Gazda, Cindy Freitag, Sandra Wojciechowski, Patricia Tranburg, Franki Rebicek, the individual identified only as "B. C. Productions," and Elizabeth Weber.

It was shown or stipulated that all of the 12 individuals listed in the above two paragraphs either held or had applied for FEINs in 1997, or had filed business or self-employment income tax returns for 1996. Accordingly, the first conjunctive part of the statutory test for application of the "independent contractor exception" was met as to these 12 individuals.

Since the employer met its burden of showing that the 12 individuals identified above met the first conjunctive part of the statutory test for application of the "independent contractor exception," it is necessary to consider their situations in light of the second part of the test.

The second part of the test, set forth in Wis. Stat. § 108.02(12)(b)2. a. through h., requires a putative employer to show that an individual whose employment status is in issue performed the services in issue under at least six out of eight prescribed conditions. The eight conditions, and their application to the twelve individuals identified above, as well as any similarly situated individuals, are set forth and discussed below.

a. The individual maintains a separate business with his or her own office, equipment, materials and other facilities.

In J Lozon Remodeling, (LIRC, September 24, 1999), a case involving siding installers, the commission held that the focus of Criterion a. is upon determining whether a separate business is being maintained with the individual's own resources.

The commission considers that the mere presence or utilization of one type of resource; e.g., a home office, does not mandate a finding that a separate business is being maintained. Moreover, the list is not exclusive. The expressly stated terms "office, equipment, and materials" are examples of the kinds of resources that may be owned and utilized by an individual who is maintaining a business that is separate from the business of a putative employer of that individual. A putative employer may be able to show that an individual is maintaining a separate business by means of "other facilities."

Criterion a. does not expressly assign weight to the cost or monetary value of the resources that are owned and utilized by an individual who is allegedly maintaining a separate business. The commission considers, however, that such cost or value may be considered in determining whether a separate business is in fact being maintained. The magnitude of an individual's investment in resources that are related to the performance of the services in issue is also pertinent to the application of several other criteria, as will be discussed. In this case, Christine Sawyer invested approximately $1,500.00 to buy a winding machine. Ms. Sawyer then further invested her time and technical knowledge to redesign and modify that machine to make it more efficient than the machines that "Sheen Leasing" leased to other assemblers. Ms. Sawyer also purchased high quality hand tools; her investment in hand tools in 1997 was $579.00, while other assemblers spent $50.00 to $200.00 on the hand tools that they purchased. Ms. Sawyer owns "CAD" (computer-assisted design) software and accounting software for the computer that she uses in her home office. She uses "Sawyer Technologies" as her business name and she has software for the production of letterheads and business cards. Ms. Sawyer also performed her coil assembly work in her home, as did the other 11 assemblers identified above. It was not shown that the other 11 individuals' alleged "home offices" involved such extensive office equipment and office activities.

Based on the above facts, the commission finds that, in 1997, Christine Sawyer maintained a business separate from the business of T & D, within the meaning of Wis. Stat. § 108.02(12)(b)2.a.

Criterion a. was therefore satisfied as to services performed for T & D by Christine Sawyer in 1997. Criterion a. was not satisfied as to the other 11 individuals identified above.

b. The individual operates under contracts to perform specific services for specific amounts of money and under which the individual controls the means and method of performing the services.

One of the requirements under Criterion b. is that the means and method of performing the services must be controlled by the individual who is alleged to be an independent contractor. In this case, the nature of the services, and the fact that they were performed in the individuals' homes, left the individuals free to choose means and methods, so long as the assembled coils passed Ms. Sheen's quality tests. Under these circumstances, the assemblers had the same degree of control over means and methods as would an acknowledged independent contractor who agrees to complete certain services by a specified date in return for a specified payment. Thus, the "freedom from control over means and methods" requirement embodied in Criterion b. was met.

However, Criterion b. also requires a showing of multiple contracts. The existence of multiple contracts tends to show that an individual is not dependent upon a single, continuing relationship subject to conditions dictated by a putative employer. The threshold requirement of multiple contracts can be satisfied, in the view of the commission, either by multiple serial contracts or multiple contemporaneous contracts. Multiple contracts that an individual enters into with multiple business entities are most indicative of that individual's economic independence from a particular putative employer. However, multiple serial or contemporaneous contracts with a particular putative employer may satisfy the criterion if the contracts are shown to have been negotiated "at arm's length." In genuine independent contractor relationships, negotiation will typically result in terms that will vary over time and will vary depending on the specific services covered by a contract.

As to the requirement of specificity, the appeal tribunal found that the individuals in issue "agreed to perform specific functions on the electronic coils for specific amounts of money to be paid by T & D." The commission does not disagree with this finding; however, the finding does not give effect to the requirement under Criterion b. that a showing of multiple contracts must be made. The finding as to what the individuals agreed could be equally applicable to the situations of many acknowledged employes.

If the requirement of multiple contracts is not applied, the underlying policy or purpose of the criterion -- to determine whether the individual in issue has a degree of economic independence similar to that enjoyed by acknowledged independent contractors -- is not given effect.

There are no written contracts in the hearing record. The descriptions of the relationships between T & D and the individual assemblers in the testimony at the hearing do not show that the express requirement of multiple contracts was met, and the general finding of the appeal tribunal does not address that requirement.

While Criterion b. does not expressly require written contracts, the commission notes that T & D submitted three examples of contracts to the department early in these administrative proceedings. The written contracts submitted by T & D are devoid of provisions regarding "specific services for specific amounts of money." In pertinent part, the contracts provide,

1. Sub-Contractor agrees to perform sub-contracting services for Company.

2. Company agrees to pay Sub-Contractor for such services as the circumstances may warrant, per Sub-Contractor invoice.

*                  *                  *

6. Sub-Contractor shall have no obligation to perform any services other than finishing and winding components.

7. Sub-Contractor agrees that, with respect to each project Sub-Contractor accepts, Sub-Contractor will meet the deadline applicable to such project.

The testimony of Ms. Sheen regarding actual practices was consistent with the testimony of the assemblers who appeared at the hearing. T & D contracted with Altran to provide assembly of large numbers of several types of electrical coils to be utilized by Altran in manufacturing transformers. T & D broke the work down into "jobs" of such size that the assemblers working for T & D could be expected to complete the whole lot soon enough to meet Altrans' deadline.

When an assembler came into T & D's office (usually to drop off coils s/he had completed and receive payment for that work), T & D would have new "jobs" available. Each "job" consisted of assembling a certain number of one type of coil. T & D would have a bundle of materials ready for each "job." The materials included a "blueprint" (actually, a list of Altran's specifications). T & D would tell the assembler how much T & D would pay for each coil that was assembled satisfactorily and returned to T & D with the assembler's "invoice."

The commission considers that each of the assemblers was in fact engaged in a continuing, exclusive employment relationship with T & D. None of the 12 assemblers identified above had multiple contracts to perform specific services for specific amounts of money in 1997.

Accordingly, the commission finds that Criterion b. was not satisfied as to any of those 12 individuals.

c. The individual incurs the main expenses related to the services that he or she performs under contract.

Criterion c. requires a showing that the individual alleged to be an independent contractor incurs the main expenses related to the services that he or she performs under contract.

The appeal tribunal found that this criterion was satisfied because T & D supplied the individuals with necessary materials to create finished coils (materials supplied to T & D by Altrans). The appeal tribunal further found that "T & D did not incur any significant expenses for the work which was produced by these individuals."

Criterion c. directly addresses expenses incurred by the individual worker, and not those incurred by a putative employer like T & D. Clearly, the latter can have at least an indirect relationship to the former. Here, however, a third party, Altran, was involved and in fact was the only entity that incurred expenses related to the raw materials that went into the coils assembled by the individuals whose employment status is in issue.

In the view of the commission, appropriate application of Criterion c. requires, first, a determination as to the specific services actually performed. Next, the expenses that were related to the performance of those services must be identified. A determination may then be made as to which of the related expenses were borne by the alleged independent contractor. Finally, based on those determinations, a determination can be made as to whether the main part of those related expenses was incurred by the alleged independent contractor.

Here, the services in issue presumably consisted of winding wire around pre- formed cores, assembling the wound cores and other components, finishing the surfaces of the components and performing tests to ensure that the assembled coils would meet Altran's specifications when checked by T & D (Ms. Sheen).

The raw materials may be viewed as not constituting an expense relating to the individuals' performance of services in this case. Providing the raw material was not a part of the services that they performed. Thus, in Lozon, the commission held that the cost of siding supplied by the putative employer did not constitute an expense related to the siding installers' performance of their services.

In this case, expenses that clearly were related to the individuals' performance of services for T & D included the cost of hand tools that they purchased, and the cost of leasing larger tools and equipment from Sheen Leasing. Ms. Sawyer's expenses included her sizable investment in her own winding machine. Additional expenses were presumably incurred by each individual in connection with the work space or office in his/her home; e.g., utilities, although the amount of such expenses was not established in this record.

The commission has carefully considered the evidence in this record that bears on the entity known as Sheen Leasing. Sheen Leasing is owned by T & D and operated by Ms. Sheen. It was created when T & D was "reorganized" in or around March of 1996. Sheen Leasing charges the assemblers an apparently fixed fee of $40.00 per month for the larger, more costly tools and equipment that T & D previously provided to its assemblers. The record does not reflect any variance in the monthly fee based on the combination of tools and equipment provided to an individual. These circumstances reflect two possibilities. Sheen Leasing may be a sham; its only purpose may be to obscure the fact that T & D still incurs the main expenses related to the assemblers' performance of their services for T & D, within the meaning of Criterion c. This would be the case if T & D continues to incur more of the cost of purchasing, maintaining and replacing the equipment than is represented by the individuals' payments of $40.00 per month. The other possibility is that, even with the apparently fixed fee, T & D is able to provide various combinations of expensive equipment through Sheen Leasing without incurring any net expenses or loss.

Ms. Sheen testified that Sheen Leasing makes a profit and that this profit is used to purchase more machinery, with the result, according to Ms. Sheen, that there is no profit that must be reported on tax returns.

The department was represented at the hearing. Ms. Sheen's testimony was not inherently incredible and it was not controverted. The appeal tribunal found that the individuals incurred the main expenses related to their performance of services.

Under all of the circumstances, the commission finds that T & D met its burden of showing that all of the 12 assemblers identified above incurred the main expenses related to the services they performed for T & D, within the meaning of Criterion c.

d. The individual is responsible for the satisfactory completion of the services that he or she contracts to perform and is liable for a failure to satisfactorily complete the services.

When an assembler turned in completed coils, the assembler was not paid for any coil that was not satisfactorily completed, but was paid for all coils satisfactorily completed. An assembler could fix unsatisfactory coils and then receive payment for them, or the assembler could decline to do the rework. In the latter event, which rarely occurred, T & D paid someone else to fix the unsatisfactory coils.

The individuals in issue were therefore not responsible for the satisfactory completion of their assembly services, within the meaning of Criterion d., and T & D did not hold them liable for a failure to satisfactorily complete their services on "jobs" that they accepted, within the meaning of Criterion d.

The commission finds that T & D did not meet its burden of showing that Criterion d. was met as to any of the twelve assemblers here under discussion.

e. The individual receives compensation for services performed under a contract on a commission or per-job or competitive-bid basis and not on any other basis.

The commission considers that the term "commission basis" in Criterion e. is inapplicable. That term would be applicable if; e.g., the assemblers whose employment status is in issue were paid a percentage of the overall amount paid by Altrans to T & D. Clearly, that was not the case here.

The term "per-job basis" is also inapplicable in this case, even though T & D referred to the work assignments it made available to the assemblers as "jobs." The assemblers were paid a specified dollar amount for each coil that they satisfactorily assembled. Clearly, the amount received by an assembler for the unit of work referred to by T & D as a "job" could vary, depending upon the number of coils, if any, that were rejected by Ms. Sheen. There was no showing that all remuneration was withheld when some of the coils comprising a "job" were rejected.

Finally, the term "competitive-bid" basis in Criterion e. is not applicable. It was not shown that the remuneration for assembling a particular type of coil was subject to negotiation or competition, and no practice of submitting bids was shown.

The appeal tribunal initially found that the 12 individuals identified above "were paid on a piecework basis which varied according to the coil." Thus far, the commission agrees. However, the appeal tribunal ultimately found that Criterion e. was met as to these individuals. The commission considers that a piecework basis of remuneration, paid by a putative employer for services performed in a continuing relationship involving the production or processing of multiple similar items, is not a remuneration basis that can satisfy Criterion e. The criterion presents an expressly exclusive list of bases of remuneration that can satisfy the criterion.

The underlying policy of Criterion e. is clearly to differentiate between workers who are economically dependent upon a putative employer and individuals who are relatively independent. The latter are those individuals who accept risks that are characteristic of entrepreneurs or independent contractors, doing so because of the concomitant possibility of profit or remuneration exceeding that which they could earn as employes. Thus, a commission-basis worker accepts the linkage of his or her remuneration to the receipts of another entity; e.g., the business that provides a straight-commission salesperson with goods to sell, advertises the goods, et cetera. A per-job worker puts at risk her/his time, effort and, perhaps, unreimbursed expenses, with the intention of doing the job with sufficient efficiency that the remuneration will exceed that which could be earned as; e.g., time-based wages in another situation. Finally, the worker who responds to invitations for competitive bids patently accepts considerable economic risk. The piece-rate worker who has a continuing employment relationship with one employing unit that provides work on an on-going basis, and remuneration at a fixed, previously agreed piece-rate, accepts far less risk and still has the economic incentive or opportunity to earn more than he/she might earn if paid on an hourly basis. Such an individual is, however, at risk of unemployment if her/his single employing unit becomes unable or unwilling to continue providing work.

The commission finds that Criterion e. was not met with respect to any of the 12 individuals identified above.

f. The individual may realize a profit or suffer a loss under contracts to perform services.

As to Criterion f., only Ms. Sawyer was in a position to realize a profit or suffer a loss under contracts to perform services. As held above, she maintained a separate business within the meaning of Criterion a. In addition to the expense of operating her home office and workspace, she incurred the ongoing expenses of operating, maintaining, repairing or replacing tools and equipment valued at approximately $3,000.00 in 1997. That investment distinguishes Ms. Sawyer's situation from those of the other 11 individuals identified above. The winding machine purchased and improved upon by Ms. Sawyer presented her with the opportunity to wind more coils in a given amount of time, so that she could receive more money for her time (profit). On the other hand, if the machine's efficiency decreased, or if T & D provided less work at some point, the costs associated with the machine could become a substantial liability unless or until Ms. Sawyer found other coil-winding work. The assemblers who had $50.00 to $200.00 invested in hand tools could use those tools for other purposes or let them gather dust, with little "loss" (in the proper sense of return on investment), although they would, like Ms. Sawyer, be unemployed. Moreover, any assembler could, according to Ms. Sheen's uncontroverted testimony, interrupt or void her or his $40.00 per month lease at will; accordingly, the lease fee would not be a continuing expense when the individual was without work.

The commission notes that the statutory language setting forth Criterion f. does not look only to the possibility of profit or loss under a single contract, nor does it look only to contracts with a single business such as the business of T & D in this case. Instead, the criterion appears to address the overall situation of an alleged independent contractor, including all contracts under which work was performed in the year in issue. The commission further notes that the term "may" indicates that the criterion looks to the possibility of profit or loss--not a probability, and not necessarily an actual profit or loss.

Based on all of the above, the commission finds that Criterion f. was satisfied as to Ms. Sawyer, but was not satisfied as to the other 11 individuals under discussion.

g. The individual has recurring business liabilities or obligations.

Criterion g. looks to whether an alleged independent contractor has recurring business liabilities or obligations. Examples might be monthly rent for a place of business or the cost or investment associated with outright ownership of expensive equipment that might, at times, be idle; e.g., Ms. Sawyer's winding machine.

T & D did not meet its burden of showing that any of the 12 individuals in fact had recurring business liabilities or obligations. Even as to Ms. Sawyer, who had the largest investment, the existence and size of that investment presented the possibility of expenses that might result in a loss, as discussed in connection with Criterion f. Without more, that possibility is insufficient to meet T & D's burden to show that Ms. Sawyer in fact had recurring business liabilities or obligations.

As to the other 11 individuals, T & D did not show that they had any significant recurring expenses, liabilities or obligations connected in any manner with their performance of services for T & D.

The commission therefore finds that Criterion g. was not satisfied as to any of the individuals whose employment status is in issue.

h. The success or failure of the individual's business depends on the relationship of business receipts to expenditures.

The appeal tribunal observed that while the expenses of the individuals varied, they "could be considerable..." The example cited by the appeal tribunal was Ms. Sawyer. The commission considers that Ms. Sawyer's situation, as discussed above, was not representative of the situations of the other assemblers. T & D did not show, inter alia, that the other individuals had any significant business receipts or expenditures.

The commission finds that the success or failure of Christine Sawyer's business in 1997 depended on the relationship between the uncertain total amount of her business receipts and the business expenditures or expenses related to her ownership of equipment, most notably her winding machine. While the latter may be uncertain, the commission considers it reasonable to infer that it would be substantial, especially as compared to any similar expenditures on the part of the other 11 individuals that could reasonably be inferred.

Criterion h. was satisfied as to Ms. Sawyer, but not satisfied as to the other assemblers.

T & D did not meet its burden of showing that the situations of any of the individuals who performed coil assembly services for T & D in 1997 did so under circumstances that satisfied at least six of the eight criteria prescribed by Wis. Stat. § 108.02(12)(b)2.a.-h.

The commission therefore finds that the 18 specifically identified individuals, and any other individuals who performed similar services for T & D under similar conditions in 1997, did so as employes of T & D, within the meaning of Wis. Stat. § 108.02(12). The 18 specifically identified individuals to whom this finding applies were Yvonne Seichter, Heather Miller, Kathleen Weber, Leslie Bolton, Vicki Dinmore and Lesley Nurczyk, Christine Sawyer, Carla Salas, Loretta Calvert, Terry Riebock and Denise Carahar, Deborah Gazda, Cindy Freitag, Sandra Wojciechowski, Patricia Tranburg, Franki Rebicek, an individual identified only as "B. C. Productions," and Elizabeth Weber.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the 18 specifically identified individuals, and any other individuals who performed similar services for T & D under similar conditions in 1997, did so as employes of T & D, within the meaning of Wis. Stat. § 108.02(12). The 18 specifically identified individuals were Yvonne Seichter, Heather Miller, Kathleen Weber, Leslie Bolton, Vicki Dinmore and Lesley Nurczyk, Christine Sawyer, Carla Salas, Loretta Calvert, Terry Riebock and Denise Carahar, Deborah Gazda, Cindy Freitag, Sandra Wojciechowski, Patricia Tranburg, Franki Rebicek, an individual identified only as "B. C. Productions," and Elizabeth Weber.

T & D Coils, Inc., is directed to prepare amended contribution reports for the four calendar quarters of 1997. T & D is to report as wages all payments made to these individuals, as well as any similarly situated individuals, for services performed in 1997 and thereafter.

Dated and mailed December 15, 1999
t&dcoils.spr : 200 : 7  EE 410 EE 410.04a  EE 410.05 EE 410.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

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