Dennis J. and Carol R. Kraus - Page 12

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          provides petitioner with pension and health benefits, paid sick             
          leave, paid funeral leave, paid holidays and vacations, and                 
          severance pay benefits.  Finally, respondent points out that IBC            
          provides petitioner with a Form W-2 (as opposed to a Form 1099-             
          NEC) and that IBC pays petitioner’s Social Security and                     
          unemployment taxes.                                                         
               Petitioner counters that he is an agent, as opposed to an              
          employee, because he must work as many hours as it takes to                 
          finish the job.  He also points out that he is paid a base salary           
          and commissions on sales, as opposed to an hourly rate.  Finally,           
          he argues that IBC’s issuance of a Form W-2 is not dispositive of           
          the characterization of his relationship with IBC.                          
               On the basis of the terms of the union agreement between IBC           
          and Local 952 and the other aspects of petitioner’s relationship            
          with IBC, the control factor indicates an employer-employee                 
               Next we consider respondent’s contention that IBC had the              
          right to discharge petitioner for certain specified infractions.            
          We do not find this aspect to be significant because IBC and/or             
          petitioner would each have the option to terminate their                    
          relationship irrespective of whether it was one of employment or            
          agency.  Under the union agreement, petitioner could be                     
          discharged by IBC if:  (1) He worked on his route after his daily           
          checkout, on holidays or Sundays, or on his day off; (2) he split           

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