State ex rel. Employment Security Commission v. Coe , 239 N.C. 84 ( 1953 )

Denny, J.

The sole question for determination on this appeal is whether or not the shoeshine boy performing services for the Victory Barber Shop, as outlined in the findings of fact, was employed by the barber shop within the meaning of the Employment Security Law.

The evidence clearly establishes the fact that the agreement between the manager of the barber shop and the shoeshine boy required the shoeshine boy to perform certain services for the barber shop, and he was at all times subject to discharge by the manager of the barber shop. In return for these services the barber shop furnished him a shoeshine stand and paid the privilege tax required therefor by the City of Charlotte and the State of North Carolina. The shoeshine boy furnished the polish, shine rags, and brushes necessary to shine shoes, and received as compensation for his services whatever he got for shoe shines and tips. He had no fixed hours, but the manager of the barber shop in testifying about when the shine boy rendered his services to the shop, said, “at various hours ranging from 8 :00 A.M. to 6 :00 P.M.”

Are the findings of fact by the Commission supported by competent evidence? We think so. Consequently, such findings are conclusive on appeal. G.S. 96-4 (m); Unemployment Compensation Com. v. Willis, 219 N.C. 709, 15 S.E. 2d 4; Graham v. Wall, 220 N.C. 84, 16 S.E. 2d 691; Employment Security Com. v. Roberts, 230 N.C. 262, 52 S.E. 2d 890; Employment Security Com. v. Kermon, 232 N.C. 342, 60 S.E. 2d 580; Employment Security Com. v. Monsees, 234 N.C. 69, 65 S.E. 2d 887.

It is our task to determine whether the findings of fact support the Commission’s conclusions of law.

“ ‘Employment’ means service performed prior to January 1, 1949, which was employment as defined in this chapter prior to such date, and any service performed after December 31, 1949, . . . performed for wage or under any contract of hire, written or oral, express or implied, in which the relationship of the individual performing such service and the employing unit for which such service is rendered is, as to such service, the legal relationship of employer and employee. Provided, however, tbe term 'employee’ includes an officer of a corporation, but sueb term does not include (1) any individual wbo, under the usual common-law rules applicable in determining the employer-employee relationship, has the status of an independent contractor, or (2) any individual (except an officer of a corporation) who is not an employee under such common-law rules.” G.S. 96-8 (g).

However, since the services under consideration involve a period of two years prior to 1 January, 1949, it becomes necessary to ascertain what the law provided with respect to “employment” prior thereto. Moreover, where employment within the meaning of the Employment Security Law is once established and the employer becomes covered thereunder, he remains so until coverage is terminated as provided by G.S. 96-11.

Prior to 1 January, 1949, the law defined “employment” as “. . . service, . . . performed for remuneration or under any contract of hire, written or oral, express or implied.” G.S. 96-8 (g) (1).

G.S. 96-8 (g) (6) of the Employment Security Law, prior to 1949, further defined “employment” as follows:

“(6) 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 commission that:

“(A) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract or service and in fact; and

“(B) 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

“(C) Such individual is customarily engaged in an independently established trade, occupation, profession, or business.”

The appellants contend that the Commission made no finding to the effect that the shine boy received any remuneration for the services rendered to the barber shop. However, in finding of fact No. 4, the Commission found “that during the calendar years 1947, 1948, and 1949, the barber shop employed regularly seven barbers during each week, and in addition thereto engaged the services of a shoeshine boy.”

The word “engage” is defined in Black’s Law Dictionary, Third Edition, page 661, as follows: “To employ or involve one’s self; to take part in; to embark on.” While Webster’s New International Dictionary, Second Edition, defines the word “engaged” as: “Occupied; employed.”

The Employment Security Law of North Carolina, in subsection (n) of G.S. 96-8, contains the following provisions:

“From and after March 10, 1941, 'wages’ shall include commissions and bonuses and the cash value of all remuneration in any medium other than cash. The reasonable cash value of remuneration in any medium other than cash, and the reasonable amount of gratuities shall be estimated and determined in accordance with rules prescribed by the Commission: . . .”

When we consider the words “employment,” “wages,” “services,” and “remuneration,” as they have been defined in our Employment Security Law, during the period involved herein, we are of the opinion that the judgment of the court below, which affirmed the order of the Commission, should be upheld. Unemployment Compensation Com. v. Jefferson Standard Life Ins. Co., 215 N.C. 479, 2 S.E. 2d 584; Employment Security Com. v. Distributing Co., 230 N.C. 464, 53 S.E. 2d 674; Cooper v. Ice Co., 230 N.C. 43, 51 S.E. 2d 889; Scott v. Lumber Co., 232 N.C. 162, 59 S.E. 2d 425; Sisk v. Arizona Ice & Cold Storage Co., 60 Ariz. 496, 141 P. 2d 395; Candido v. California Employment Stabilization Com., 95 Cal. 2d 338, 212 P. 2d 558; McDermott v. State, 196 Wash. 261, 82 P. 2d 568. The cases of Butler v. United States (D.C. Tex.), 61 F. Supp. 692, and Magruder v. Yellow Cab Co. of D. C. (C.C.A. Md.), 141 F. 2d 324, cited by the appellants, are distinguishable.

When the Employment Security Commission finds upon competent evidence that a person was an employee of a defendant prior to 1949, the statute then in effect put the burden on such defendant to show to the satisfaction of the Commission that the services performed by such employee comes within the exceptions provided in subsections A, B, and C of section 6 of subsection (g) of G.S. 96-8, hereinabove set out. Moreover, these exceptions are stated conjunctively and not disjunctively. Therefore, all three of these exceptions must be met in order that the defendant be exempted from the act. Unemployment Compensation Com. v. Jefferson Standard Life Ins. Co., supra; Employment Security Com. v. Distributing Co., supra.

The Commission held that the defendants did not bring themselves within the exceptions because, among other things, the shine boy was not free from direction or control of the manager of the barber shop; that the services rendered were not outside the usual course of the business carried on by the defendants, and not performed outside the place of business where the barber shop was operated, but on the contrary all the services were rendered in the place of business of the defendants. Neither was the shine boy, under the evidence disclosed by the record, an independent contractor. Hayes v. Eton College, 224 N.C. 11, 29 S.E. 2d 137.

In Cooper v. Ice Co., supra, this Court held that an individual who entered into an oral arrangement with the ice company for sale and delivery of ice in a specified territory and who was furnished conveyance and equipment in connection with the retail delivery of such ice, and whose remuneration was determined by the difference between the wholesale price of tbe ice and its retail price, was an employee of tbe ice company. Likewise, under a similar arrangement, in tbe case of Sisk v. Arizona Ice & Gold Storage Co., supra, involving tbe Employment Security Act of tbat State, wbicb is almost identical witb ours, tbe Court said: “It appears tbat tbe services must be for wages. Tbe contribution to be paid is based on tbe wages and consists of a percentage thereof. It is possible to contend tbe retail dealers were not paid wages, tbat therefore there is no basis upon wbicb to compute contributions. It is apparent tbat their compensation for delivering the ice to tbe customer was to consist of tbe difference between what tbe appellee charged them for it and what they received from tbe customer, and tbe question is whether tbe legislative intent was tbat such remuneration should be classified as wages in construing tbe terms of tbe act.” Tbe Court held tbat tbe evidence sustained tbe finding tbat tbe compensation received by tbe retail ice dealers, consisting of tbe difference between what tbe ice company charged them and what they received from tbe customer, constituted “wages” within tbe meaning of tbe Employment Security Act, citing Unemployment Compensation Com. v. Jefferson Standard Life Ins. Co., supra.

In tbe case of Candido v. California Employment Stabilization Com., supra, tbe arrangement between tbe barber shop and tbe bootblack was similar to tbat in tbe instant case, except tbe bootblack paid $8.00 per month for tbe privilege of shining shoes. His compensation came from shoe shines and from tips. He performed generally tbe services of a porter, cleaning floors, taking care of towels and other equipment, helping customers of tbe barber shop put on their bats and coats, etc. Tbe Court held tbe evidence sustained tbe finding tbat tbe bootblack was an employee of tbe proprietor of tbe barber shop, so as to render the proprietor liable for unemployment insurance assessments under tbe Unemployment Insurance Act, rather than as lessee or independent contractor.

In our opinion, tbe findings of fact made by tbe Commission herein are sufficient to support its conclusions of law. Therefore, tbe judgment of tbe court below is

Affirmed.