(dissenting):
I dissent. From a review of the record, it is clear that the decision of the referee was unsupported by substantial evidence. In fact, the evidence clearly supports the conclusion that the (C) test had been met and that the installers were customarily engaged in an independently established trade as that term has been defined by this Court.
New Sleep is engaged in the retail sale of water beds. When a sale is made, New Sleep offers to arrange delivery and installation for an additional charge. If the customer desires this service, New Sleep contacts a “waterbed installer” from a list kept by plaintiffs warehouse manager.1 New Sleep utilized eleven installers in 1980, twelve in 1981, and nine in 1982, the years covered by this appeal. Most of the installers were students, who installed water beds part-time. New Sleep contacted the installers on a job-by-job basis. The pay arrangements were informal. The rate of compensation was determined between the warehouse manager and the installer and was based on a “flat rate” (fixed price per job), hourly rate, or a combination of the two, depending upon the circumstances of the individual job. New Sleep paid the installer upon completion of the job; there was no mechanism to hold back payment pending customer approval. If the installation was defective, the installer was responsible for correcting the problem. New Sleep passed on to the installer the entire installation fee collected from a customer, without retaining any profit.
The installers worked on their .own without any direct supervision by New Sleep, although New Sleep preferred to use a few “good installers” more often than the others. The installers generally used their own vehicles, and all of them provided their own tools. They were free to bring along additional help of their own choosing, and they determined what compensation to pay their help.
The installers had no set working hours; they determined when and if they would work. New Sleep did not require them to be available for any minimum number of hours or to work on specific days. The installers did similar work for New Sleep’s competitors. They also installed water beds for individuals who purchased water beds either from New Sleep or its competitors and who later decided to hire someone to install them. In these cases, the installer negotiated directly with and collected directly from the customer.
*294The installers did no work for New Sleep in any other function; they were neither warehousemen nor salesmen. There was testimony that one or two of them helped infrequently with rearranging the showroom floor, although the record does not reflect whether or under what terms they received compensation. The installers did not consider themselves employees, and some signed statements to that effect. They never requested days off or insurance coverage, and, as of the time of the hearing before the appeal referee, none had ever filed for unemployment compensation. New Sleep provided tax form 1099 (income for self-employed) to each installer who earned more than $600 in a given year.
Based on the facts above, the appeal referee found that the installers were under a “contract of hire” with New Sleep and that since the installers did not fit within the exclusion of section 35-4-22(j)(5)(A)-(C), the so-called “ABC test,” New Sleep was liable for contributions to the unemployment compensation fund.
The ABC test is in the conjunctive: once a contract of hire exists, the hirees must meet all three parts of the test before they are excluded from coverage. The referee concluded that there was a contract of hire and that the installers qualified under subsection (A) (free from control over performance), but that they failed to meet the tests in subsections (B) and (C). The referee found that the installers did not meet test (B) because New Sleep “is in the business of selling and installing water beds, and therefore the services of the installers were within [New Sleep’s] course of business.” Regarding test (C), the referee concluded:
Test C requires that the individuals performing services be independently established in a similar trade or business. There is no substantial evidence to indicate that any of the installers were established in any business. They were part-time workers who may have also worked part-time for others, but were not self-employed. They did not advertise or solicit for business, or if they did there is no evidence of such. They received their pay from the appellant in practically all cases and, under the circumstances, it is held that Test C is not met. •
New Sleep does not contest the existence of a contract for hire. It contends that the referee improperly applied the facts to the law when it determined that the installers failed to meet tests (B) and (C).
On review, we apply an “intermediate standard” to determine “whether the facts support the conclusion of law_” Barney v. Department of Employment Security, Utah, 681 P.2d 1273, 1275 (1984).
A decision of the Board of Review of the Department of Employment Security, such as the one before us, is entitled to weight, but is subject to judicial review to assure that it falls within the limits of reasonableness or rationality. Issues governed by this “intermediate” standard, this Court stated, include “what has been described as ‘mixed questions of law and fact’ or the ‘application’ of the findings of basic facts ... to the legal rules governing the case.”
Id., quoting Utah Department of Administrative Services v. Public Service Commission, Utah, 658 P.2d 601, 610 (1983).
The referee failed to recognize that (B) provides two alternatives: either the service is performed outside of the usual course of business or the service is performed outside of all places of business of the hiring party. See Blamires v. Board of Review, Utah, 584 P.2d 889, 891 (1978). The referee misapplied the facts to the legal rules. There is no dispute that the installers performed their services at the customers’ homes, not at New Sleep’s place of business. Further, the installation of the water bed was left entirely to the customer’s discretion and was the subject of an additional charge which was paid in total to the installer. Thus, installation of the beds was outside the usual course of business of the seller. Test (B), therefore, was clearly met in this case.
The referee also incorrectly applied test (C) to the facts. The Court has rejected findings similar to those of the referee *295twice before. See Barney v. Department of Employment Security, 681 P.2d at 1275, and North American Builders, Inc. v. Unemployment Compensation Division, 22 Utah 2d 338, 342, 453 P.2d 142, 145 (1969). In North American, the finding of “employment” under (C) was reversed, notwithstanding the fact that the aluminum siding installers in that case received their compensation from the hiring party for every job and notwithstanding the fact that the installers did not advertise. Advertising was unnecessary because in that case the two groups were known to each other. 22 Utah 2d at 340, 453 P.2d at 143. In Barney, the Court reversed the finding of “employment,” even though the. referee found that the dry wall installers were “employed” by more than one employer and not self-employed. These facts were not, and are not, dispositive. Finally, the referee's finding that the installers did not solicit for business is without any eviden-tiary basis in the record. The evidence indicated that the installers did solicit business from time to time by calling New Sleep when they wanted work. There was no evidence to the contrary.
The facts upon which the referee based his finding do not support the conclusion he reached. The installers worked if, when, and for whom they desired, used their own tools and vehicles, and hired their own helpers. The fact that many of the installers were also students is irrelevant in this case. The facts of the instant case go beyond North American, where the installation service came automatically with the purchase of aluminum siding, and Barney, where there was no evidence that the drywall installers performed their service for anyone other than contractors. When New Sleep sold a water bed, installation was optional. The water bed installers at issue here performed their services for New Sleep, for its competitors, and directly for the individual customers of either. On the facts of this case, test (C) was also met; the installers were engaged in the independently established trade of water bed installation.
I would reverse the decision of the Board of Review that tests (B)and (C) were not met.
HALL, C.J., concurs in the dissenting opinion of DEAN E. CONDER, District Judge. ZIMMERMAN, J., does not participate herein.DEAN E. CONDER, District Judge, sat.
. On some occasions, the installers would call New Sleep to inquire if work was available.