In re Ford

Appeal from a portion of a decision of the Unemployment Insurance Appeal Board, dated December 24, 1952, and filed in the Department of Labor on December 30, 1952. Appellants operate a photograph studio, and in connection therewith sell individual and group portraits to college sororities and fraternities. The scheme of that part of appellants’ business is for a “ booker ” to make the original contact and interest the individual or group in at least having a photograph taken and having the proofs submitted to them. Then the “ photographer ” follows up these contacts and takes the actual photographs and delivers the negatives to appellants. Following this, appellants furnish to “ salesmen ” the proofs of the photographs and they proceed to sell the finished photograph or portrait. The only question involved on this appeal is whether the “ salesmen ” are employees or independent contractors. The status of the “ bookers ” and “ photographers ” is not in question, as they have already been held to be independent contractors. The board has determined that the salesmen are employees and subject to the Unemployment Insurance Law (Labor Law, art. 18). These salesmen work on a straight commission basis under a written contract which refers to them as independent contractors and gives them *997a great deal of latitude as to the manner of conducting their work. This is not conclusive upon the board, however, if there is evidence that they are actually employees. There is evidence that they are required to work full time; that they are subject to discharge if they fail to produce a certain result, and, necessarily, they are directed by the employers where to go to do their work, as when the employers furnish them with photographic proofs of a certain individual or group it would obviously be useless for them to go elsewhere than to these people. With this and other minor evidence of control by the employers, a question of fact is presented which we may not review. (Matter of Morton, 284 N. Y. 167, 170.) Decision of the Unemployment Insurance Appeal Board unanimously affirmed, with costs. Present — Poster, P. J., Bergan, Coon, Halpern and Imrie, JJ. [See 283 App. Div. 677.]