Judicial Review of the findings of fact and decision of the referee of the Employment Division.
Bruce B. Samson, Portland, argued the cause for petitioner. On the brief were Rankin, Walsh, Ragen & Roberts, and Ronald K. Ragen and Douglas R. Courson, Portland.
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 Foley, Judge.
Petitioner seeks judicial review of a decision of an Employment Division referee holding that petitioner was liable for unemployment taxes on account of fees paid by petitioner to women termed "hostesses," who work part-time in petitioner's advertising business. These women are usually housewives. Their job is to locate newly arrived householders in the Portland area, call on the new residents, give them a copy of petitioner's publication which advertises local merchants, and inquire as to the newcomers' possible need
for a variety of items such as draperies and automobiles. Each hostess is assigned an area of the city within which she is to locate newcomers and distribute this literature to them. This unsolicited literature is free. Generally the hostess lives in the area which she services.
Petitioner contends that the above-described services are exempt because under ORS 657.080*fn1 "employment" does not include services performed in the distribution of a "shopping news" and (2) that ORS 657.040*fn2 does not apply in the situation where the alleged employe is not subject to the "hazards" of unemployment.
The evidence produced at the hearing before the
referee showed that petitioner's business enterprise operates as follows: Petitioner solicits Portland merchants to advertise their goods and services in an informal publication which it assembles and distributes to newcomers. Although the record does not contain a sample copy, we gather from the testimony that petitioner's publication consists mainly of a collection of advertising leaflets or flyers. The individual merchant can prepare his own leaflet for insertion in petitioner's publication, or petitioner will perform this service for him. Petitioner then assembles the printed inserts, stapling them together.
According to petitioner the purpose of the publication and personal approach is to familiarize newcomers with shopping facilities available in their area and to induce them to become customers. New materials are picked up periodically by the hostesses. The pamphlets may vary from sector to sector of the city, depending on the advertisements which they contain.
When a hostess is engaged by petitioner she is required to sign a contract. She is paid a flat rate of $3 for each visit to a new household, which fee is paid monthly. Petitioner requires the hostess to pay all her own expenses and to submit a written ...