In the Matter of the Claim of WALTER O. COWAN, Respondent. BIMBO FOODS BAKERIES DISTRIBUTION, INC., Appellant. COMMISSIONER OF LABOR, Respondent.
Kasowitz, Benson, Torres LLP, New York City (James J.
Stricker of counsel), for appellant.
Evans Knoll, Albany, for Walter O. Cowan, respondent.
T. Schneiderman, Attorney General, Albany (Mary Hughes of
counsel), for Commissioner of Labor, respondent.
Before: Garry, P.J., Devine, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
from two decisions of the Unemployment Insurance Appeal
Board, filed July 14, 2016, which ruled, among other things,
that Bimbo Foods Bakeries Distribution, Inc. was liable for
unemployment insurance contributions on remuneration paid to
claimant and those similarly situated.
Foods Bakeries Distribution, Inc. (hereinafter the company)
produces and distributes fresh baked goods under a variety of
names and labels to chain stores and restaurants. Claimant
entered into a distribution agreement with the company's
predecessor in interest and purchased the rights to deliver
those products in a specified geographic area. After claimant
ceased delivering for the company and sought a determination
regarding unemployment insurance benefit coverage, the
Department of Labor determined that claimant was an employee
of the company and found it liable for additional
unemployment insurance contributions. The company disputed
the finding, asserting that claimant was an independent
contractor. Following a hearing, the Unemployment Insurance
Appeal Board ultimately found that an employer- employee
relationship existed and sustained the initial determination
assessing additional unemployment insurance contributions on
remuneration paid to claimant and other similarly situated
individuals. The company appeals.
an employment relationship exists within the meaning of the
unemployment insurance law is a question of fact, no one
factor is determinative and the determination of the...
[B]oard, if supported by substantial evidence on the record
as a whole, is beyond further judicial review even though
there is evidence in the record that would have supported a
contrary conclusion" (Matter of Concourse
Ophthalmology Assoc. [Roberts], 60 N.Y.2d 734, 736
 [citations omitted]; see Matter of Empire State
Towing & Recovery Assn., Inc. [Commissioner of
Labor], 15 N.Y.3d 433, 437 ). "An
employer-employee relationship exists when the evidence
demonstrates that the [purported] employer exercises control
over the results produced by claimant or the means used to
achieve the results" (Matter of Hertz Corp.
[Commissioner of Labor], 2 N.Y.3d 733, 735 
[citation omitted]). The control over the means employed is
the more important factor to be considered (see Matter of
Empire State Towing & Recovery Assn., Inc. [Commissioner
of Labor], 15 N.Y.3d at 437; Matter of Ted Is Back
Corp. [Roberts], 64 N.Y.2d 725, 726 ). "All
aspects of the arrangement must be examined to determine
whether the degree of control and direction reserved to the
[purported] employer establishes an employment
relationship" (Matter of Villa Maria Inst. of Music
[Ross], 54 N.Y.2d 691, 692  [citations omitted]).
we are unpersuaded by the company's contention that the
Board erred in determining that claimant was an employee as a
matter of law pursuant to Labor Law § 511 (1) (b). Labor
Law § 511 (1) (b) defines "[e]mployment" for
unemployment insurance purposes to include "any service
by a person for an employer... as an agent-driver or
commission-driver engaged in distributing... bakery
products." According to the company, claimant did not
earn a commission but earned revenue upon selling the bakery
products that he purchased at prices set by him. The record,
however, supports the Board's finding that the actual
relationship between the parties did not constitute that of a
buyer and seller. No money was exchanged in connection with
claimant's alleged purchases and, pursuant to the terms
of the distribution agreement, he was credited for returned
stale products. Further, any hypothetical change in pricing
negotiated by claimant with customers would only have
resulted in a smaller commission as calculated by a set
percentage. The company also asserts that the remuneration
earned by claimant was not a "commission" as
defined in Labor Law § 191-a (a), but overlooks that
said definition is limited to issues relating to the payment
of wages under Labor Law article 6 (see Klepner v Codata
Corp., 139 Misc.2d 382, 385 , affd 150
A.D.2d 994 ). In view of the foregoing, substantial
evidence supports the Board's finding that claimant
earned a commission and qualified as an employee under Labor
Law § 511 (1) (b).
we find that substantial evidence supports the Board's
finding that the company exercised sufficient supervision,
direction and control over claimant to establish an
employer-employee relationship under common-law principles.
The company retained numerous rights under the distribution
agreement, including the right to set the price of the
products sold to claimant and the right to negotiate with
chain outlets to determine price and terms of sale, and it
retained the authority to sell distribution rights purchased
by claimant or perform his delivery obligations under certain
circumstances. Claimant was further required to deliver fresh
products and remove stale products in a defined area, sell
any additional products provided by the company, cooperate
with its marketing programs, remit settlement information to
it each week, maintain certain chain outlet customers even if
not profitable to him and not engage in any business activity
that directly competed with the company or interfered with
his obligations under the distribution agreement. In
addition, claimant was interviewed by the company, relied on
certain equipment and supplies provided by it, was paid on a
weekly basis and was trained, instructed, supervised and
monitored by a company manager regarding his deliveries.
Considering the foregoing, we find no reason to disturb the
Board's finding that the company exercised sufficient
control over claimant and those similarly situated to
establish an employer-employee relationship, despite evidence
in the record that could support a contrary conclusion
(see Matter of Mastroianni Bros., Inc. [Commissioner of
Labor], 130 A.D.3d 1117, 1119 ; Matter of
Francis [West Sanitation Servs.-Sweeney], 246 A.D.2d
751, 752 , lvs dismissed 92 N.Y.2d 886');">92 N.Y.2d 886 ,
93 N.Y.2d 833');">93 N.Y.2d 833 ; Matter of Pepsi Cola Buffalo
Bottling Corp. [Hartnett], 144 A.D.2d 220, 222 ;
Matter of Oakes [Stroehman Bakeries-Roberts], 137
A.D.2d 927, 928 ).
P.J., Mulvey and Aarons, JJ., concur.
that the decisions are ...