Judicial Review of decision of referee of the Employment Division.
David G. Frost, Hillsboro, argued the cause and filed the brief for petitioner.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Thornton, Judge. Schwab, Chief Judge, and Langtry, Judge.
Petitioner, a mortuary operator in Springfield, seeks judicial review pursuant to ORS 657.684 of a decision of an Employment Division referee holding that petitioner was liable for unemployment taxes on account of services performed by certain "soloists," "organists," "marker setters," "sextons" and "snow shovelers."
The evidence at the hearing was that petitioner, as an accommodation to bereaved families, maintains an informal list of prospective soloists and organists
available on request for funeral services at its mortuary. If the family has a preference for a particular soloist or organist and wishes petitioner to contact the person or persons to perform this service, petitioner does so. If the family has no preference but desires a soloist and organist, petitioner contacts an individual on its list. If the family desires certain selections sung or played, that wish is complied with by the singer or the organist. Petitioner furnishes the organ. The singer or the organist furnishes the sheet music.
The soloists and organists do not perform exclusively for petitioner. They are otherwise employed in other types of work and take time from their regular employment to perform for the funeral home. They also perform for other functions apart from funerals as their talent and time permit. While rendering these services for the petitioner, they do not receive compensation from their regular full-time employer. Immediately after the funeral service petitioner pays the performers, having specified these fees in the contract for services to be rendered to the family of the deceased under the heading "cash advance for convenience of the family." The president of petitioner testified that occasionally the family of the deceased fails to reimburse petitioner for some of the services furnished, such as those of the soloists and organists, but that petitioner has never asked any soloist, organist, etc., to return the fee previously paid by the mortuary.
The marker setters and sextons are also regularly employed and work only occasionally for petitioner, who pays them for whatever work they do in connection with the location of the grave, the setting of the marker and mileage to the grave. Their services are not limited to work for the petitioner.
The snow shovelers were employed on only one occasion. This was during the winter of 1969 when the city of Springfield had an unusually heavy snowfall. They offered their services to clean the walks and drives and were compensated therefor. They did not do other work for petitioner.
Petitioner contends that the snow shovelers constituted "casual labor" and for this reason were not carried on the payroll records as regular employes. Deductions made for regular employes of petitioner were not made for these temporary workers.
The record indicates that no special account was set up to handle the compensation paid to soloists, organists, marker setters, sextons and snow shovelers.
None of the above individuals maintained a separate business telephone listing, advertised his or her services, employed anyone to assist him, or had any ...