| IN RE: CRESCENT REMODELING CENTER | ) | DOCKET NO. 66,160 |
| ) | ||
| FIRM NO. 176,429 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Employer, Crescent Building Materials, Inc., d/b/a
- Crescent Remodeling Center, by
- Dauber and Bartheld, per
- Richard H. Bartheld
- Department of Labor and Industries, by
- The Attorney General, per
- Laurie F. Connelly and Thomas R. Chapman, Assistants
This is an appeal filed by the employer on October 31, 1983 from an order of the Department of Labor and Industries entered August 29, 1983, and communicated to the employer on September 1, 1983, which affirmed a previous order dated January 18, 1983 which assessed additional industrial insurance premiums due in the amount of $4,691.08 for the audit period of July 1, 1980 through June 30, 1982. Reversed and remanded.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the Department of Labor and Industries to a Proposed Decision and Order issued on August 21, 1984 in which the order of the Department dated August 29, 1983 was reversed, and remanded to the Department with instruction to relieve the employer of responsibility for payment of premiums on behalf of the outside sales agents and their contactors for the period July 1, 1980 through June 30, 1982.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The facts in this record, with respect to the issue of employer- employee relationship between Crescent Remodeling Center and the outside salesmen availing themselves of Crescent's services, are adequately set forth and discussed in the Proposed Decision and Order [2] and will not be reiterated at length herein. However, we feel it necessary to further discuss this issue in light of Lloyd's of Yakima v. Department of Labor and Industries, 33 Wn.App. 745 (1982), and our decision in Family Life Insurance Company, Board of Industrial Insurance Appeals Docket No. 63,147, dated April 23, 1984.
As set forth in the Proposed Decision and Order, Crescent Remodeling Center is in the business of selling material and services for home remodeling. The company solicits business from homeowners, providing a package deal which can include the materials, installation, and financing. In addition, Crescent Remodeling Center provides this package to private entrepreneurs who have contracted with a homeowner for repairs or remodeling. It is these entrepreneurs that the Department has classified as "salesmen" and for whom it alleges premiums are due from Crescent.
In its Petition for Review the Department alleges that the "salesmen" dealing with Crescent Remodeling Center come within the rule of Lloyd's of Yakima, supra. The situation in Lloyd's is virtually identical to that of Crescent when Crescent deals directly with the homeowner. Lloyd's, as does Crescent, negotiated with a customer for a package which included the materials, and installation. (It is not known if Lloyd's also provided financing). After having sold the package to the homeowner, Lloyd's contracted for the installation of the material with three independent workmen. The three were primarily engaged in installing the material for Lloyd's, under a verbal contract. The court found the three workmen to be employees of Lloyd's on the ground that the "very heart and soul" of their contract with Lloyd's was their personal labor. Clearly this rationale would apply to those material installers who install the material for Crescent Remodeling Center when Crescent sells its own package to a homeowner. However, the so-called "salesmen" who deal with Crescent [3] actually do no more than stand in the place of the homeowner, when they sell a package to the homeowner and then contract with Crescent for its performance. The entrepreneurs are under no obligation to have Crescent perform the contract, and the evidence indicates that in fact these "salesmen" frequently contract with other remodeling centers, or hire their own labor to perform installation of materials purchased from Crescent or other suppliers. In those instances where they do elect to use Crescent, it would appear that the description of the relationship would be more that of prime contractor or seller (entrepreneurs) and subcontractor or buyer (Crescent Remodeling Center).
In Family Life Insurance Company, supra, we held life insurance sales agents to be employees of the insurance company, under a "nature of work" test, as opposed to the concept of "control" in the contractual relationship. Family Life Insurance Company exercised no control over its outside salespersons, except a contractual requirement that they not sell competing forms of insurance. In practical effect, Family Life Insurance Company did control the nature of the work that salespersons did, and accomplished its business through those sales-persons. Crescent Remodeling Center, on the other hand, contracts directly with homeowners and remodeling contractors as well as the entrepreneurs here in question, and imposes no restrictions on these entrepreneurs in dealing with competitors. The "salesmen" here in question meet neither the "control" nor the "nature of work" test. As stated in the Proposed Decision and Order, the relation between Crescent and these sales agents could be called "one of buyer/seller rather than employer/employee".
After consideration of the Proposed Decision and Order and the Department's Petition for Review filed thereto, and a careful review of the entire record before us, we are persuaded that the Proposed Decision and Order is supported by the preponderance of the evidence and is correct as a matter of law. [4]
The proposed findings, conclusions and order are hereby adopted as this Board's final findings, conclusions and order and are incorporated herein by this reference.
It is so ORDERED.
Dated this 7th day of March, 1985.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
MICHAEL L. HALLChairperson
/s/
FRANK E. FENNERTY, JR.Member
/s/
PHILLIP T. BORKMember
SPECIAL CONCURRING STATEMENT
I have signed the foregoing Board decision because I fully concur that the independent outside sales agents here in question were not "employees" or "workers" for Crescent Remodeling Center within the meaning and intent of those terms under the Workers' Compensation Act. Thus, I agree with the other Board members on the final disposition of this case.
However, I do not necessarily join in the discussion in the Decision, wherein my colleagues found it necessary to distinguish the result reached in this case from the result reached in Family Life Insurance Company, Docket No. 63,147, Board decision of April 23, 1984. I dissented in the Family Life case because, for the reasons expressed in that dissent, I felt the independent insurance sales agents there were not "employees" or "workers" for Family Life Insurance Company. [5]
Thus, in Family Life, as here, the persons in question were not subject to the Act's mandatory coverage, and in my view we should not have had to "distinguish" that result from this one.
Dated this 7th day of March, 1985.
/s/
PHILLIP T. BORKMember