*1 529 PAT GRIFFIN COMPANY Stations, Gasamat Service v. EMPLOYMENT SECUR- and Respondents,

Plaintiffs ITY COMMISSION al., Montana et Defendant Appellant.

No. 12530.

Submitlt'ed Nov. 1973. Decided Jan. 1974.

Rehearing Denied March 1974. 519 P.2d 147. Bricket, argued, Moody Helena, defendant-appellant. for Roth, Roth, Poore, argued, McKenzie Urban L. Donald C. & Butte, plaintiffs-respondents. Robinson, argued, delivered MR. CHIEF T. HARRISON JUSTICE JAMES Opinion Court. desig- (now Security Employment Commission The defendant *2 Depart- Division, Montana Employment Security State nated hold- and a decision Industry), and made entered ment of Labor in fact stations were operating individuals Gasamat ing that Company that Pat and plaintiff Pat Griffin employees of the unemployment tax contribu- Company liable Griffin was tions. Com- by plaintiff Pat Griffin was filed this action

Thereafter a result the decision judicial district and as in pany the second This was Security reversed. Employment Commission the by the was taken ruling the district court appeal the from will plaintiff Security Hereafter Employment Commission. as the Commission. defendant as and to Gasamat referred headquarters its has appears Gasamat record the From business, gasoline retail Colorado, and is Collins, in Fort Montana stations, with outlets gasoline operating self-service Bozeman. Butte, Missoula and Falls, Helena, Billings, Great at through token serves himself a station customer at Gasamat The change tokens or customer obtains operated pumps for which the opera- window” at the office-residence “change from the stations, pumps, storage tanks owns the service tor. Gasamat buildings location involved at each location. Each station and an oil buildings, office-living quarters consists of two warehouse. by operators leased individual under

The Gasamat stations are per operator pays month for the agreement. $90.00 The lease from property. This amount is deducted his commission. Ten agree- days terminate lease. The lease notice property cannot be without ment also sublet “ * * * permission rights privi- of Gasamat and no. sold, leges granted as herein to lessee shall be transferred or obtaining lessor. the written consent assigned without first 9 7 3= # # covering both property, insures the insurance

Gasamat liability. property public property personal itself The by operator. operator is insured owned consignment contract under a products operator sells to the sta- gasoline provides the made with Gasamat. gasoline. He pay for the is not tion. The % per gal- a cent gasoline of on sale of a commission derives per gallons thereafter cent 10,000 the first sold lon on % sup- a number low, calls gasoline month. When carrier, then common plied Gasamat. Gasoline is delivered nothing. Title operator pays charged and is to Gasamat. gasoline gasoline Gasamat. The tax on the remains paid by Gasamat. operators,

Gasamat offers oil to the but two brands of may buy companies. other oil brands of oil other *3 premises An which oil is located on station houses warehouse products. operator any the oil If removes oil from the ware- pay company which is it Gasamat, house from he must that for purchase at that and of next time include the that oil his report, together money purchase. with cash from The opera- obligation under buy products tor is no oil Gasamat. daily operator deposits at a The is make local bank reports to make account name Gasamat. He reports times a to Gasamat three week. would 'include such The gas things as the been amount has delivered to the sta- tion, supplies sales on the amount of and the amount of hand. pays operator.

Gasamat and for a bond for pays advertising, operator radio but for is free Gasamat ways expense. telephone at his to advertise in other The and electricity paid paid are for Heat is for Gasamat. repairs pays major for property. Gasamat

operator. repairs operator. made Minor are operator reports pays The his own federal tax and income security withholds his own pays tax. He his social also own compensation workmen’s taxes.

Representatives every premises four or visit operator way five weeks to in any they assist the can and ’’ * * help representa- **to him sell gasoline and The oil. reports following tives write visits, which are filed with Gasamat headquarters in Colorado. products can sell other retail he which chooses

to carry, day and he is (or close) any free to work miss he chooses. The personnel. free to hire relief question presented for review is whether is sub- there support findings stantial evidence to Commission’s engaged by employees pur- individuals Gasamat are for the pose determining pay- whether Gasamat is liable for the unemployment ment of compensation taxes. presented 87-148(j) (5),

Determinative of the issue is section R.C.M.1947, provides: which performed by wages

“Services an individual for shall be employment subject deemed to be to this act and until unless is shown the satisfaction of the commission that: “ (A) individual has been and will be free Such continue to performance from control or direction over the of such serv- ices, fact; both under contract and in his

“(B) Such service either outside the usual course of performed, the business for which such or that service is performed places such service is outside of all the of business enterprise performed; which such service is “(C) customarily engaged individual is in an Such inde- trade, profession pendently occupation, established or busi- *4 ness.”' in “wages” term section 87-149(c), defined R.C.M.

1947:

“ payable personal ‘Wages,’ all remuneration means serv- ices, including of bonuses and cash value commissions and payable cash. any all in medium than remuneration other # * *» Paper In Regis Mont., St. Co. v. of 157 Mont. U.C.C. 524, 525, involving operator-driver, 487 P.2d a ease an 87-148(j) R.C.M.1947, considering

this Court in section (5), said:

“The above cited Test’ the statute so-called ‘NBC relationship employer-employee whether an exists determine for unemployment purposes. tax that The statute per- all exist, three of the stated must or conditions service employment. formed will must be deemed to be The statute reasonably applied.” addition, In question in we analysis our statute said Regis in St. at 526: 487 P.2d at “* * * person performing serv- We feel that whether (sic) independent employer ices is an contractor is or an question guides making such us, and before statutes used as persons who not determination must be distorted allow employees truly independent operation are their be held merely purposes resulting for tax benefits derived relationship.” employer-employee an Regis question before question before us in St. is the here, is,

us of Gasamats that whether the independent con- performance employees or of services are writ- Regis In we reason of tractors. St. concluded operator-driver employer and ten contract between operator-driver was uncontroverted fact that contractor, Test” independent of the “NBC the conditions were satisfied. cited

In both and the Commissionhave their briefs positions. authority support respective their numerous facts much discussion and illustration There has been It 'the view of this Court each the cited cases. relationship of of the instant case establish the the facts *5 (cid:127)534

n employer-employee operators between Gasamat and its purposes Unemployment Compensation the Montana Law.

While 87-148(j) (5), guide section R.C.M.1947is as a used relationship employer determination of the an between an performing services, individual the well-established in determining test employee whether an individual is an or n an independent guide contractor is also a to used. As we Regis, expressed did St. we here reiterate this test as Shope City Billings, 306, v. 85 Mont. P. 278 827: ‘independent

“An contractor one who renders service occupation, the course of an represents the will of his em- ployer only work, as the result his not to as the means whereby it is accomplished, paid by job.' usually and is (And Neyman Pincus, see v. 82 Mont. 805.) 267 P. n tí* # #

“The vital in determining person test a employed whether a piece do certain of work is a a contractor or mere ser- vant, is the control over the work which is reserved employer. general Stated as a proposition, if the contractor employer under the control of servant; he ais if not control, independent nnder such he is contractor.” provision The first requires of the “ABC Test” indi- vidual from control, be free “both under his contract and in fact”. An of Gasamat does not have freedom of n controlover the means, methods and details of his business he is reports weekly when to make three daily deposits bank to Gasamat Particularly, accounts. truly independent gasoline not when he is order

from a distributor named Gasamat and where total n controlof gasoline with lies Gasamat. gasoline in the retail

Gasamat is business and exercises n controlover its operators gaso- means of sale of as operator’s Therefore, work. line and as results provision of the “ABC not first Test” has been met. HASWELL, MR. DALY HAR- JUSTICES and JOHN C. RISON, concur. CASTLES, (dissenting)

MR. : JUSTICE dissent, purpose I but no useful would be served dis- cussion of whether or not Gasamat contract “controls” its degree they to such a become servants and thus- employees. I they agree would hold them to be what to be— *6 independent contractors.