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10/20/83 WISCONSIN CHEESE SERVICE v. DEPARTMENT

October 20, 1983

WISCONSIN CHEESE SERVICE, INC., PLAINTIFF-APPELLANT
v.
DEPARTMENT OF INDUSTRY, LABOR & HUMAN RELATIONS, AND THE LABOR & INDUSTRY REVIEW COMMISSION, DEFENDANTS-RESPONDENTS



Appeal from a judgment of the Circuit Court for Dane County: W.L. Jackman, Reserve Judge, presiding.

Petition to Review Denied.

Dykman, J., Cane, J. and Decker, J.

The opinion of the court was delivered by: Dykman

This case is before us on remand from the supreme court. We held on a previous appeal that truck owner-operators who delivered goods for Wisconsin Cheese Service, Inc. were its employes for the purpose of unemployment compensation tax contributions because they were not free from Wisconsin Cheese's direction and control under their contracts. Wisconsin Cheese Service, Inc. v. DILHR, 108 Wis. 2d 482, 322 N.W.2d 495 (Ct. App. 1982). The supreme court subsequently held that contract language similar to the language we relied on in Wisconsin Cheese Service did not establish contractual direction and control. Star Line Trucking Corp. v. DILHR, 109 Wis. 2d 266, 325 N.W.2d 872, 327 N.W.2d 144 (1982). The supreme court reversed our decision in Wisconsin Cheese Service and remanded it for consideration of whether the owner-operators were in fact free from Wisconsin Cheese's direction and control. *fn1

We conclude that the Labor and Industry Review Commission's finding that the owner-operators were not free from Wisconsin Cheese's direction and control is not supported by credible and substantial evidence. We also conclude that LIRC's finding that the owner-operators were not customarily engaged in an independently established business is erroneous in light of Star Line. We reverse the circuit court judgment which affirmed LIRC's determination that the owner-operators were employes of Wisconsin Cheese.

Most of the relevant facts were stated in Wisconsin Cheese Service and will not be repeated here. Additional facts will be stated in the opinion.

Section 108.02(3), Stats., defines an "employe" for the purpose of unemployment compensation:

(a) "Employe" means any individual who is or has been performing services for an employing unit, in an employment, whether or not the individual is paid directly by such employing unit; except as provided in par. (b) or (e).

(b) Paragraph (a) shall not apply to an individual performing services for an employing unit if the employing unit satisfies the department as to both the following conditions:

1. That such individual has been and will continue to be free from the employing unit's control or direction over the performance of his services both under his contract and in fact; and

2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.

Both parts of par. (b) must be satisfied for an individual to not be found an employe under sec. 108.02(3). Sears, Roebuck & Co. v. ILHR Department, 90 Wis. 2d 736, 743, 280 N.W.2d 240, 243 (1979).

LIRC's findings may not be overturned unless they are unsupported by credible and substantial evidence. Sec. 102.23(6), Stats. The supreme court defined "credible and substantial evidence" as "relevant, credible and probative evidence upon which reasonable persons could rely to reach a Conclusion." Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 54, 330 N.W.2d 169, 173 (1983). The determination whether a finding is supported by credible and substantial evidence must be made in light of the record as a whole. Id. at 54-55, 330 N.W.2d at 174. A finding is insufficiently supported if the evidence sought to be relied on is so discredited that it must be discarded as matter of law. Id.

In Star Line, LIRC found that the trucking corporation exercised actual control over the performance of services by owner-operators. It based ...


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