Byrne Trucking, Inc. v. Employment Division

RICHARDSON, J. This appeal raises the issue whether the relationship between petitioner and 53 truck "owner-operators” who lease equipment and provide labor to petitioner for interstate freight hauling, constitutes employment subjecting petitioner to liability for unemployment compensation taxes under ORS ch 657. The administrator of the Employment Division determined these truckers were employes and assessed delinquent unemployment compensation taxes. Petitioner applied for a hearing before an Employment Division referee pursuant to ORS 657.679 and 657.683. The referee held the owner-operators were employes under ORS ch 657 and affirmed the order of assessment. Petitioner appeals to this court pursuant to ORS 657.684. The determination of assessment by the administrator is prima facie correct and the burden is upon the protesting employer to establish the contrary. ORS 657.683(4). We agree with the findings and conclusions of the referee and affirm. Although there were 53 separate individuals designated as employes in the deficiency assessment, petitioner presented only four of these individuals as witnesses. Petitioner’s counsel stated that these four truckers and their hauling contracts were typical of the relationship between petitioner and all 53 of the individual truckers named in the assessment. Petitioner is a common carrier operating in both interstate and intrastate commerce. When engaged in interstate commerce petitioner carries on its business by leasing trucks and trailers from owner-operators pursuant to standard hauling contracts. Petitioner also leases trucks of its own to haulers, on a lease-back arrangement, who then hard freight for petitioner on the same basis as the truckers who own their own equipment. These latter truck leases provide that the equipment shall be used exclusively in hauling contracts for Byrne Trucking. In the event the hauling [232] contract is terminated the lease automatically terminates and the equipment is returned to Byrne Trucking. The leases also provide for a purchase option. It appears most of the lessees had exercised the option and were making payments to Byrne on their trucks. Byrne Trucking procures the freight to be hauled and collects the freight charges from the shippers. The freight haulers are paid 70 to 75 percent of the revenue received from each haul. From this amount the owner-operator is responsible for all expenses incident to operation of his equipment, wages for himself and any person he employs in carrying out his responsibilities under the hauling contract. The owner-operator is responsible for loading the freight and delivering it to its destination. He has complete control of the methods of loading, the route selected and the hours he wishes to spend driving. He may maximize profits by reducing expenses and hauling more freight. The contracts provide "[c]ontractor [owner-operator] hereby agrees to furnish to Carrier for its exclusive use, the equipment described * * * and all labor sufficient for the use of the said equipment * * *.” The parties further agreed the owner-operators would place a sign on the truck identifying it as having been leased to petitioner. Byrne Trucking’s I.C.C. number is also displayed on the truck. The owner-operators’ investment in their equipment is approximately $15,000 to $30,000 per unit. The owner-operators testified they considered themselves independent contractors1 and if the contract with Byrne Trucking were terminated they would enter into a similar arrangement with another common carrier. The evidence indicated contract haulers are at a premium in petitioner’s area. With one exception, the truckers testified they did not have a [233] business they could sell apart from the value of their equipment. The hauling contracts are not assignable. Petitioner contends that the owner-operators it regularly contracts with are not employes under ORS 657.040 (1) and (2)(a), which provides: "Services performed by an individual for remuneration are deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the administrator that: "(1) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and "(2) (a) Such individual customarily is engaged in an independently established business of the same nature as that involved in the contract of services * * As a prerequisite to an exception under subsection (2)(a) the person contracting for the services must prove under subsection (1) that the person performing the services is free from the former’s control. Revlon Service, Inc. v. Employment Div., 30 Or App 729, 567 P2d 1072 (1977). The Employment Division concedes the "owner-operators” are free from Byrne Trucking’s control or direction. Petitioner makes no contention the truck owner-operators are exempt under ORS 657.040(2)(b).2 In Republic Development Co. v. Emp. Div., 32 Or App 263, 574 P2d 660 (1978), after an exhaustive analysis of the case law, statutes and legislative history, we concluded "* * * that a service relationship that creates a long or short-term dependency for income on the buyer’s need for the service as service (as distinguished from an end product) is employment [234] for the purpose of the unemployment compensation law.” Byrne, in this contract relationship, is purchasing a service to carry on its own enterprise. It is not simply leasing freight hauling equipment. The contract is for the services of a driver and equipment to carry freight Byrne contracts to forward. The trucks, like roofing and siding installation equipment, Baker v. Cameron, 240 Or 354, 401 P2d 691 (1965), and building equipment, Republic Development Co. v. Emp. Div., supra, are the tools of the trade necessary to carry out the service required in the contract. We conclude the order of the referee was a correct application of the law and is supported by substantial evidence. Since petitioner asserts the evidence presented presents the typical relationship of all the owner-operators included in the deficiency determination of the administrator we find petitioner has not met its burden of proof as to all 53 owner-operators. Affirmed. Footnotes [1] The hauling contract provides under the heading of "STATUS OF PARTIES” the owner-operator "stands solely in the capacity of an independent contractor.” [2] Under subsection (2)(b) of ORS 657.040 the person contracting for the services must prove the individual performing the services (1) holds himself out as an independent contractor; (2) employs one or more persons to assist in performing the services; (3) customarily has two or more contracts; (4) utilizes a telephone service, business cards, etc., as a normal business practice; (5) is recognized by the Department of Revenue as an employer; and (6) furnishes substantially all of the necessary equipment.