                         State of New York
                  Supreme Court, Appellate Division
                     Third Judicial Department
Decided and Entered:   November 20, 2014              517770
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________________________________

In the Matter of the Claim of
   SAMANTHA M. ARMISON,
                    Respondent.

GANNETT COMPANY, INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 1.)
________________________________

In the Matter of the Claim of
   TIMOTHY P. MILLER,
                    Respondent.            MEMORANDUM AND ORDER

GANNETT COMPANY, INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 2.)
________________________________

In the Matter of the Claim of
   LESLIE S. LUTHER,
                    Respondent.

GANNETT COMPANY, INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 3.)
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________________________________

In the Matter of the Claim of
   THERON V. WIGGINS,
                    Respondent.

GANNETT COMPANY, INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 4.)
________________________________

In the Matter of the Claim of
   MARTIN J. REDDER,
                    Respondent.

GANNETT COMPANY, INC., on
   Behalf of GANNETT
   SATELLITE INFORMATION
   NETWORK, INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 5.)
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_______________________________

In the Matter of the Claim of
   JONATHAN R. MORRIS,
                    Respondent.

GANNETT COMPANY, INC.,
                    Appellant.

COMMISSIONER OF LABOR,
                    Respondent.

(Claim No. 6.)
________________________________


Calendar Date:   October 9, 2014

Before:   Stein, J.P., Garry, Rose, Lynch and Devine, JJ.

                            __________


      Zinser Law Firm, Nashville, Tennessee (L. Michael Zinser,
pro hac vice) and Woods, Oviatt, Gillman, LLP, Rochester (Andrew
A. Ryan of counsel), for appellant.

      James W. Cooper, Warrensburg, for Samantha M. Armison and
others, respondents.

      Eric T. Schneiderman, Attorney General, New York City (Mary
Hughes of counsel), for Commissioner of Labor, respondent.

      Satterlee Stephens Burke & Burke, LLP, New York City (Mark
A. Fowler of counsel), for New York News Publishers Association,
amicus curiae.

                            __________
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Devine, J.

      Appeals from 12 decisions of the Unemployment Insurance
Appeal Board, filed January 4, 2013, which ruled that claimants
were entitled to receive unemployment insurance benefits.

      These six claimants contracted with Gannett Company, Inc.
and Gannett Satellite Information Network, Inc. (hereinafter
collectively referred to as Gannett) to deliver newspapers and
other publications. After the Commissioner of Labor deemed
claimants to be employees and therefore eligible to receive
unemployment insurance benefits, Gannett objected and requested a
hearing on the determination. The Administrative Law Judge held
a combined hearing and, as is pertinent here, sustained the
initial determination as to four of the claimants, continued in
effect the initial determination as to another claimant and
overruled the initial determination as to the final claimant.
Upon appeals by Gannett and the Commissioner of Labor, the
Unemployment Insurance Appeal Board, following a combined
hearing, found claimants and all similarly situated persons to be
employees. Gannett now appeals to this Court.

      Gannett insists that claimants were independent contractors
and that the Board's decision was not supported by substantial
evidence and was arbitrary and capricious. Whether an employer-
employee relationship exists "is a factual determination for the
Board, and its decision will be upheld if supported by
substantial evidence" (Matter of John Lack Assoc., LLC
[Commissioner of Labor], 112 AD3d 1042, 1043 [2013]; see Matter
of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734, 736
[1983]; Matter of Wright [Central Transp., Inc.—Commissioner of
Labor, 58 AD3d 988, 989 [2009], lv dismissed 12 NY3d 843 [2009]).
"While no single factor is determinative, control over the
results produced or the means used to achieve those results are
pertinent considerations, with the latter being more important"
(Matter of Automotive Serv. Sys., Inc. [Commissioner of Labor],
56 AD3d 854, 855 [2008] [citations omitted]; see Matter of John
Lack Assoc., LLC [Commissioner of Labor], 112 AD3d at 1043).
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Here, while there is evidence to support a contrary outcome (see
Matter of Interlandi [Cremosa Foods Co., LLC – Commissioner of
Labor], 70 AD3d 1150, 1151 [2010]), we find that the record
contains substantial proof to support the Board's finding that
Gannett exercised control over claimants' work. Gannett assigned
claimants specific routes within predetermined delivery areas,
required proof of a driver's license and vehicle insurance where
a vehicle was used to make deliveries and, while claimants were
permitted to use a substitute carrier to fulfill delivery duties,
they were required by contract to provide Gannett with proof that
the substitute had a driver's license and insurance if a vehicle
would be used to complete deliveries. Additional contractual
provisions included, among other things, requirements that
claimants remove unsold publications from newspaper racks, ensure
that racks were properly maintained, reserve publications of
vacationing customers and create and maintain accurate
circulation records that could be turned over, upon notice, to
Gannett. Further, Gannett controlled other aspects of claimants'
activities, including directives to not insert or attach "foreign
matter on, into or with copies of any publication, nor insert
copies of any publication into or with copies of any other
publication" without receiving Gannett's approval.
Notwithstanding the existence of evidence in the record that
could weigh in favor of a finding that claimants were independent
contractors, including that the operating agreements expressly
designated claimants as independent contractors, in light of the
indicia of control that Gannett had over claimants, we find that
substantial evidence supports the Board's decisions in these
matters (see Matter of O'Connor [2020 Powervision, Ltd.–
Commissioner of Labor], 67 AD3d 1302, 1303 [2009]; Matter of
Aubrey [NGT Lib., Inc.–Commissioner of Labor], 8 AD3d 803, 804-
805 [2004]).

      Finally, we consider Gannett's claim that the Board failed
to acknowledge and apply Department of Labor guidelines for
determining the existence of an employer-employee relationship
within the newspaper industry, thereby rendering the underlying
determinations arbitrary and capricious. Although the Board's
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written decisions do not specifically refer to Department
guidelines, we conclude that the instant decisions are wholly
consistent with such guidelines and their express adoption of
well-established "common law tests of master and servant."
Importantly, the guidelines emphasize that an individual is
considered an independent contractor "only when free from control
and direction in the performance of services."1 In its
consideration of the nature of claimants' relationship to
Gannett, the Board's decisions reflect its consideration of the
Department guidelines and employer-employee principles upon which
they were based.

      The remaining contentions not addressed herein have been
considered and found to be unavailing.

        Stein, J.P., Garry, Rose and Lynch, JJ., concur.



        ORDERED that the decisions are affirmed, without costs.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court



    1
        The Department guidelines caution employers to seek a
formal determination of the status of those persons providing
services for purposes of unemployment insurance, which Gannett
failed to do.
