                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     519965
________________________________

In the Matter of the Claim of
   BARBARA B. INGLE,
                    Respondent.

THE MECHANICAL SECRETARY,
   INC.,
                    Appellant.              MEMORANDUM AND ORDER

COMMISSIONER OF LABOR,
                    Respondent.
________________________________


Calendar Date:   June 2, 2015

Before:   Peters, P.J., Lahtinen, Garry and Lynch, JJ.

                             __________


      Roy Jacobs & Associates, New York City (Roy L. Jacobs of
counsel), for appellant.

      Cynthia Feathers, Glens Falls, for Barbara B. Ingle,
respondent.

                             __________


Lynch, J.

      Appeal from a decision of the Unemployment Insurance Appeal
Board, filed January 10, 2014, which ruled, among other things,
that The Mechanical Secretary, Inc. was liable for unemployment
insurance contributions based on remuneration paid to claimant
and others similarly situated.

      Claimant was a transcriber of administrative hearing tapes
for The Mechanical Secretary, Inc., a company that provides
various transcription services for its clients. By initial
determination, the Department of Labor granted claimant's
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application for unemployment insurance benefits. Following a
hearing, an Administrative Law Judge found claimant to be an
independent contractor and overruled the initial determination.
Ultimately, the Unemployment Insurance Appeal Board ruled, among
other things, that an employer-employee relationship existed
between The Mechanical Secretary and claimant and those similarly
situated and that The Mechanical Secretary was liable for
additional unemployment contributions based upon remuneration
paid to those transcribers. This appeal ensued.

      "Whether 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
[Board], 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 NY2d 734, 736 [1983] [citation omitted]). "An employer-
employee relationship exists when the evidence shows that the
employer exercises control over the results produced or the means
used to achieve the results" (Matter of Empire State Towing &
Recovery Assn., Inc. [Commissioner of Labor], 15 NY3d 433, 437
[2010] [citation omitted]). Here, the record establishes that
The Mechanical Secretary advertised for transcriber positions.
The president would interview the applicants and assess the
quality of their work. The transcriber was required to have
certain equipment, but The Mechanical Secretary would loan the
transcriber a transcription machine if needed. The Mechanical
Secretary arranged to have the work delivered to and picked up
from the transcribers within a certain area. In claimant's case,
however, because she did not live in close proximity to the
company, she was required to pick her work up at its office and
to return the completed work to that office by 9:00 a.m.
Claimant was occasionally reimbursed for her travel expenses.
Significantly, The Mechanical Secretary set the nonnegotiable pay
rate, supplied all the paper needed by the transcribers, and
reviewed the final product for mistakes and would correct any
minor mistakes or, where the mistakes were significant, send it
back to be corrected by the transcriber. Furthermore, The
Mechanical Secretary had to be notified if a transcriber was
going to take any vacation. Given the evidence produced, we find
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that there is substantial evidence to support the Board's finding
that The Mechanical Secretary exercised a sufficient degree of
control over claimant's work to establish an employment
relationship (see Matter of Amoroso [Laraine T. Carmichael Ltd.-
Commissioner of Labor], 22 AD3d 940, 942 [2005]; Matter of
Medical Transcription Plus [Commissioner of Labor], 302 AD2d 689,
690 [2003]; Matter of Bailey [Remee Prods. Corp.-Roberts], 132
AD2d 820, 821 [1987].

      We are unpersuaded by The Mechanical Secretary's contention
that the Board was bound by a prior unappealed Administrative Law
Judge decision that found medical transcribers that it had used
to be independent contractors. Claimant, who is not a medical
transcriber, was not involved in that prior proceeding such that
there was a full and fair opportunity for her to contest the
decision, nor is the Board "required to conform to the precedent
established in the prior unappealed decision or offer a rational
explanation for not doing so" (Matter of Bull [Yansick Lbr. Co.-
Sweeney], 235 AD2d 722, 723 [1997], lv dismissed 90 NY2d 913
[1997]). In any event, the record before us discloses that The
Mechanical Secretary exercised additional indicia of control over
claimant's work not found with regard to the medical
transcribers.

     Peters, P.J., Lahtinen and Garry, JJ., concur.



     ORDERED that the decision is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
