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

WILLIAM C SCHMIDT, Employe

THE COMBINATION DOOR CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401431AP

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the wages paid to the employe by the employer totaling $14,948.97 shall be included in the department's computation of the employe's base period wages for computing potential benefit eligibility.

Dated and mailed March 31, 2000
schmiwi.usd : 105 : 3   EE 408 EE 410  EE 410.03

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission has affirmed the appeal tribunal decision in this case, because it agrees with the appeal tribunal that the individual whose status is at issue, was an employe of the appellant and not an independent contractor. The appellant asks that the commission take notice of the employe's testimony in a previous case, no. S9700357AP, on the ground that in that hearing the employe testified that he did not regard himself as an employe. The commission has declined to do so; regardless of how the employe characterized himself, the end result of the decision in question was that the employe was a statutory employe of the employer, and not an independent contractor. In addition, the result in that case legally is not binding in the present proceeding, by operation of Wis. Stat. § 108.101 (3). The commission's present review of the case before it thus is independent of the prior proceedings.

The administrative law judge held that Mr. Schmidt met four of the Wis. Stat. § 108.02 (12)(b)2 criteria, b, c, e, and f, leaving unsatisfied a, d, g, and h.

Criterion a is maintenance of a separate business with one's own office, equipment, materials, and other facilities. The overriding requirement of this provision is a separate business, accoutrements of which could include office, equipment, materials, or other facilities. In this case, the employe had no business. He simply sold products for the employer. In its brief, the employer challenges the appeal tribunal's finding that the employe's sales cards represented him as a product manager for the appellant and that the appellant prohibited the employe from representing similar product for competitors. First, the employer acceded to the employe's designation "product manager" on the business cards; it is not the case that that designation was solely the employe's choice. With regard to the employe's non-competition, the employer splits hairs in its brief when asserting that the employer did not tell the employe he could not represent a competitor, but that it is a given in the industry that that is not done. The fact of such non-competition is more relevant than the underlying reason for such non-competition. For these reasons, the commission agrees with appeal tribunal that provision a, and thus also provision h, were not met. For the reasons stated in the appeal tribunal decision itself, finally, the commission also agrees provisions d and g were not met.

cc:
ATTORNEY PAUL ROSENFELDT
EDGARTON ST PETER PETAK MASSEY & BULLON

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