Lewiston Daily Sun v. M.U.I.C.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 90
Docket:	And-98-594	
Argued:	April 6, 1999	
Decided:	June 22, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.

LEWISTON DAILY SUN

v.

UNEMPLOYMENT INSURANCE COMMISSION

WATHEN, C.J.

	[¶1] Plaintiff Lewiston Daily Sun (the "Sun") appeals from a decision
of the Superior Court (Androscoggin County, Delahanty, J.) affirming the
determination of the Unemployment Insurance Commission that reporter
James Stevens was employed by the Sun for purposes of unemployment
compensation.  On appeal, the Sun challenges the Commission's analysis,
arguing that the statutory test of employment was inapplicable because
Stevens was providing goods not services, and contends that the
Commission erred as a matter of law in holding that Stevens was an
employee of the Sun.  We disagree and affirm the judgment.
	[¶2]  Before the Unemployment Insurance Commission, James
Stevens testified that he had been a freelance reporter for the Lewiston Sun
Journal from 1990 to 1993.  Stevens covered meetings of governmental
bodies and agencies in his assigned territory, attending the events, then
writing the articles mainly at his home.  The Sun often suggested stories to
Stevens, and by the end of his tenure, only approximately fifty percent of the
articles that he wrote were suggested to him by the Sun.  Stevens was paid
per story, based on a sliding scale of value, as determined by the bureau
chiefs at the Sun.  Stevens's only other employment during the period he
worked for the Sun was a few days of substitute teaching.
	[¶3]  Stevens explained that he had been instructed to introduce
himself as a reporter for the Sun when conducting interviews.  Although he
was never told outright not to write stories for other papers, he was
discouraged from doing so.  He never attempted to sell articles to other
papers.  
	[¶4]  Heather McCarthy, Assistant Managing Editor of the Sun,
testified that in September 1993 the Sun decided not to purchase any more
of Stevens's articles due to a dispute about the quality of an article he had
submitted.  She explained that when Stevens began writing for the Sun, he
signed the Sun's standardized letter, identifying him as an independent
contractor.{1}  
	[¶5]  Frances Chapman, former bureau chief for the Sun, testified
that she told all of the Sun's freelance reporters to identify themselves as
"freelance writers for the Sun Journal."  She stated that she never told
Stevens that he could not write for other publications.  
	[¶6]  After the Sun stopped purchasing articles from Stevens, he
filed for unemployment compensation benefits, and as a result the Bureau of
Employment Security investigated Stevens's employment status.  After the
Bureau determined that Stevens's work for the Sun constituted
employment, the Sun appealed to the Unemployment Insurance
Commission, which affirmed the Bureau's determination.  Pursuant to M.R.
Civ. P. 80C, the Sun appealed to the Superior Court, which affirmed the
decision of the Commission.{2}
	[¶7]  When evaluating the Superior Court's review of an
Unemployment Insurance Commission decision, we review the Commission
decision directly to determine whether "there exists any competent
evidence to support the agency findings and then ascertain whether upon
those findings the applicable law has been correctly applied."  Crocker v.
Maine Unemployment Sec. Comm'n, 450 A.2d 469, 471 (Me. 1982).  We
will not overrule findings of fact supported by substantial evidence, defined
as "such relevant evidence as a reasonable mind might accept as adequate to
support the resultant conclusion."  Id.  Moreover, we "will not disturb a
decision of the Commission unless the record before the Commission
compels a contrary result."  McPherson Timberlands, Inc. v. Unemployment
Ins. Comm'n, 1998 ME 177, ¶ 6, 714 A.2d 818, 820.
	[¶8]  The Maine Employment Security Law requires an employer to
make contributions to the unemployment compensation fund based upon
the amount it pays in "wages for employment."  See 26 M.R.S.A. §
1221(1)(A) (Supp. 1998).{3}   The statute defines "employment" broadly as
including services "performed for wages or under any contract of hire,
written or oral, express or implied."  26 M.R.S.A. § 1043(11) (Supp. 1998).
	[¶9]  The Sun first contends that the Commission erred by applying
what is commonly referred to as the ABC test.  The test is used in
determining whether services provided by an individual constitute
employment:

Services performed by an individual for remuneration shall
be deemed to be employment subject to this chapter unless
and until it is shown to the satisfaction of the bureau 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;
(2)  Such service is either outside the usual course of
the business for which such service is performed, or
that such service is performed outside of all the
places of business of the enterprise for which such
service is performed; and
(3)  Such individual is customarily engaged in an
independently established trade, occupation,
profession or business.

26 M.R.S.A. § 1043(11)(E) (1988).  The Sun argues that Stevens was
providing goods rather than services and thus the test was inapplicable.  We
disagree.
	[¶10]  The following facts, as found by the Commission and
supported by competent evidence, demonstrate that Stevens provided a
mixture of both goods and services:  

The employing unit provided the claimant with a letter of
agreement concerning their employment relationship on
November 13, 1990.  In this letter the employing unit
informs the claimant that his duties will include attending
town meetings and other local events in a particular
geographical territory at the employing unit's request for the
purpose of taking photographs and preparing articles to be
used in the employing unit's newspapers. 
. . . .
	The employing unit assigned leads to the claimant.  It
suggested stories to the claimant that it was interested in
publishing.  The claimant could choose whether or not to
accept such assignments.  Approximately one-half of the
items that the employing unit accepted from the claimant
resulted from such assignments.  The remainder of the items
that the employing unit accepted from the claimant were the
result of his ideas.

Because Stevens provided services, at least in part, the Commission properly
applied the statutory test.
	[¶11]  The Sun next contends that even if the test applied, Stevens's
services did not constitute employment.  If an employer fails to satisfy any of
the three prongs of the test, the worker is deemed an employee and the
other prongs of the test need not be considered.  See McPherson
Timberlands, Inc. v. Unemployment Ins. Comm'n, 1998 ME 177, ¶ 7, 714
A.2d 818, 821; Hasco Mfg. Co. v. Maine Employment Sec. Comm'n, 158 Me.
413, 415, 185 A.2d 442, 443 (1962).  The Commission held that the Sun
failed to prove all three prongs of the test.   Because we find that the
Commission did not err in holding that the Sun failed to prove that Stevens
was customarily engaged in an independently established trade, occupation,
profession, or business, see 26 M.R.S.A. § 1043(11)(E)(3), we need not
consider the other two prongs of the test.
	[¶12]  The Commission found as fact, supported by competent
evidence, that Stevens had no previous experience as a reporter when he
answered the Sun's ad for a journalist and that the Sun trained Stevens to
improve his writing ability and write in a style espoused by the Sun.  The
Commission also found that Stevens introduced himself as a reporter for the
Sun when interviewing people, that he did not advertise nor hold himself
out as a freelance reporter, and that he did not perform reporting services
for any other newspaper or magazine.  
	[¶13]  A person is independently established when he has a
proprietary interest in his occupation such that he can "operate without
hindrance from any source."  Hasco Mfg. Co. v. Maine Employment Sec.
Comm'n, 158 Me. 413, 419, 185 A.2d 442, 445 (1962).  Although a
proprietary interest need not be established by a place of business or a
mailing address, "at the very least such workers must hold themselves out
to some community of potential customers as independent tradesmen
involved in a particular craft."  Nyer v. Maine Unemployment Ins. Comm'n,
601 A.2d 626, 628 (Me. 1992) (footnote omitted); see also Vector Mktg.
Corp. v. Maine Unemployment Ins. Comm'n, 610 A.2d 272, 275 (Me. 1992)
(holding that when sales persons were prohibited from selling competing
products for a year after the expiration of their contracts and sold only the
employing unit's products they did not have a proprietary interest in their
occupation).
	[¶14]  On the unique facts of this case, because Stevens did not have
prior experience as a reporter, received his only training from the Sun, did
not advertise his services as a reporter, and did not perform such services
for any other newspaper or magazine, the facts do not compel a result
contrary to that reached by the Commission that Stevens was not
customarily engaged in an independently established profession.  
	The entry is:
					Judgment affirmed.
                                                                           
Attorney for plaintiff:

Michael R. Poulin, Esq., (orally)
Skelton, Taintor & Abbott, P.A.
P O Box 3200
Auburn, ME 04212-3200

Attorneys for defendant:

Andrew Ketterer, Attorney General
Pamela W. Waite, Asst. Atty. Gen., (orally)
6 State House Station
Augusta, ME 04333-0006

FOOTNOTES******************************** {1} . The standardized letter read in full: This letter will confirm our agreement that when requested by us you will attend town meetings and other local events in the Western Maine/Northern New Hampshire area for the purpose of taking photographs and preparing articles to be used in the Sun-Journal/Sunday. The Sun- Journal/Sunday will pay you for your services as an independent contractor in accordance with its fee schedule in effect from time to time. The current fee schedule is available for your information. This letter will also confirm that your preparation of any article or taking of any photographs for the Sun-Journal/Sunday will fall within those categories listed in the U.S. Copyright Act, 17 U.S.C. 101(2), and therefore, the copyright to any article you write or photographs you take will belong exclusively to the Sun-Journal/Sunday. Please sign the enclosed copy of this letter and return it to this office to confirm the terms of this letter. {2} . We note with concern that the Superior Court held this case under advisement for two and one-half years before issuing an opinion. The record reveals no explanation for such an exceptional delay. {3} . "Wages" are defined as "all remuneration for personal services, including commissions, bonuses, severance or terminal pay, gratuities and the cash value of all remuneration in any medium other than cash." 26 M.R.S.A. § 1043(19) (Supp. 1988).