Clark Oil & Refining Corp.

National Labor Relations Board - Board Decisions

Nov 25, 1960

129 N.L.R.B. 750 (N.L.R.B. 1960)

750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clark Oil & Refining Corporation and General Teamsters Union,.
Local #406, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, Ind. Case No.
7-CA-2568. November 25, 1960
DECISION AND ORDER
On July 18, 1960, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above -entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety , as set forth in the copy of the Intermediate Report at-
tached hereto . Thereafter, the General Counsel filed exceptions to the-
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three -member-
panel [Chairman Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed . The Board has considered the Intermedi-
ate Report , the exceptions and brief , and the entire record in this case,
and hereby adopts the findings, conclusions , and recommendations of
the Trial Examiner.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed November 13, 1959, by General Teamsters Union, Local
#406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Ind., herein called the Union, against Clark Oil & Refining
Corporation, Milwaukee, Wisconsin , herein called the Respondent, the General
Counsel of the Board issued a complaint dated January 27, 1960, alleging violation
of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (61
Stat. 136). On February 4, 1960, the Respondent filed its answer admitting certain
jurisdictional and other allegations in the complaint but denying the commission of
unfair labor practices. Thereafter the Intervenors , dealer-operators of the gasoline
stations involved, filed their petitions to intervene in the proceeding as interested
parties.
With respect to the unfair labor practices the complaint alleged, in substance, that
since about November 6, 1959, the Respondent has refused to bargain collectively
with the Union as the collective- bargaining representative of the Respondent's gaso-
line service station employees in the Grand Rapids, Michigan, area, although the
Union was and is such representative within the meaning of the Act.
Upon due notice, hearing was held at Grand Rapids, Michigan , on April 12 and
13, 1960, before the duly designated Trial Examiner. The General Counsel, the
Respondent, the Intervenors , and the Union appeared , were represented by Counsel,
participated in the hearing, and were afforded full opportunity to present and to meet
evidence, to engage in oral argument, and to file briefs and proposed findings. On
June 10, 1960, the General Counsel, the Respondent , and the Intervenors filed briefs
which have been considered.
On June 8, 1960, in accordance with prior agreement of counsel , counsel for the
Intervenors filed a list containing the names of employees working for the Re-
129 NLRB No. 91.
CLARK OIL & REFINING CORPORATION 751
spondent 's dealers during October 1959, and other data respecting them. This
list is hereby directed to be made a part of the record.
Upon the basis of the entire record in the case, and after consideration of all the
relevant evidence and contentions , including observation of the witnesses and their
demeanor , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Clark Oil & Refining Corporation is a Wisconsin corporation with its principal
business office located at Milwaukee , Wisconsin . Respondent is engaged in the
transportation and marketing of petroleum products of all kinds through retail gas
stations , directly or wholesale , in various States of the United States including the
State of Michigan.
In the calendar year 1958 Respondent sold finished petroleum products valued in
excess of $75,000,000 of which amount approximately $ 3,463,800 was sold within
the State of Michigan . For the same period total purchases were approximately
$58,900,000 , of which in excess of $1,000,000 was purchased outside the State of
Michigan and shipped to points within the State of Michigan.
It is admitted that at all times material herein the Respondent has been engaged
in commerce within the meaning of Section 2(6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters Union , Local #406, is a labor organization affiliated with
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, Ind., and admitting to membership employees of the Respondent.
III THE UNFAIR LABOR PRACTICES
A. The issue
The dispositive issue is whether the dealer-operators of gasoline stations owned
by the Respondent in the Grand Rapids , Michigan , area are employees of the Re-
spondent , or are instead independent contractors.
B. The collective-bargaining contracts
The Respondent owns a number of gasoline stations in the State of Michigan and
other States at which gasoline is sold at retail . In acquiring these stations the Re-
spondent 's policy is to operate them until the stations become established, at which
point they are leased out to individual operators or dealers . Approximately 60 per-
cent of all the Respondent's stations are thus leased.
In or shortly before the fall of 1957, the Respondent opened or acquired eight
retail gasoline stations in the Grand Rapids, Michigan , area. In the fall of that year
the Union, claiming to represent a majority of the employees in the said stations,
was accorded recognition by the company as such representative without formal
proceedings or controversy , and the parties thereupon entered into a union-shop
contract.
At the commencement of negotiations for that contract , the Union presented
the Respondent with the Union's proposed form of agreement . This proposal con-
tained an article II entitled "Transfer of Company Title." Article II provided, in
substance , that the contract should be binding upon any successors or assigns of the
Respondent in the event of transfer of any portion of the operations . Specifically
the article stated:
ARTICLE II
TRANSFER OF COMPANY TITLE OR INTEREST
This agreement shall be binding upon the parties hereto , their successors,
administrators , executors , and assigns . In the event an entire operation or any
part thereof is sold, leased , transferred, or taken over by sale, transfer, lease,
assignment , receivership , or bankruptcy proceeding , such operation shall con-
tinue to be subject to the terms and conditions of this Agreement for the life
thereof. It is understood by this section that the parties hereto shall not use
any leasing device to a third party to evade this contract . The Employer shall
give notice of the existence of this Agreement to any purchaser , transferee,
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lessee, assignee, etc., of the operation covered by the Agreement or any part
thereof. Such notice shall be in writing with a copy to the Union not later
than the effective date of sale.
Because of its leasing policy, the Respondent objected to article II. It explained
that policy to the Union and refused to accept the article as proposed on the ground
that it might deter leasing. Ultimately article II was modified to provide for 60 days'
notice to the Union of any transfer, with further stipulation that the economic pro-
visions of the contract should be binding upon the Respondent's successors in in-
terest. Thus, as contained in article II of the 1957 contract, the section read as
follows:
TRANSFER OF COMPANY TITLE OR INTEREST
In the event of an entire operation or any part thereof is sold, leased, trans-
ferred, or taken over by sale, transfer, lease, assignment, receivership, or bank-
ruptcy proceeding, the Union shall be given 60 days' advance written notice
thereof, and it is agreed that the economic provision of this contract as set
forth in schedule "A" shall continue to be binding upon the successors, ad-
ministrators and assigns until the expiration of the term hereof.'
No stations were leased during the first year of the contract.
In late 1958 the agreement was opened for renegotiation. At that time the Re-
spondent was preparing to begin leasing the stations, and it notified the Union to that
effect. As a consequence, the provisions of article 11 again became a subject of
negotiation. The Union, concerned as to how its bargaining status would be affected
by leasing, inquired of the Respondent as to how the problem had been handled in
other areas under union contract. In Chicago, Local No. 705 of the Teamsters had
a service station agreement with the Gasoline Retailers Association of Chicago, to
which the Respondent was a party. The contract contained the following clause
relating to the sale of physical assets:
ARTICLE XXIII
Sale of Physical Assets:
Any Employer who during the contract years sells or leases his business shall
inform the purchaser or the lessee of the exact terms of the Union Agreement
and shall make the sale or lease conditional on the new purchaser or new lessee
assuming all the economic obligations of the Umon contract until its expiration
date, at which time it will be negotiated between the Union and the new Em-
ployer.
The Respondent provided the Union with a copy of that contract. It further
informed the Umon that the practice in Chicago was for the Union there to contact
the new employer upon the execution of the lease and to sign him up to a contract.
The problem was resolved by replacing article II of the 1957 contract with article
XXIII of the Chicago contract, which became article II of the 1958 contract at Grand
Rapids. As modified the contract was renewed.
C. The leasing
During the 1958 negotiations the Union asked that it be given written notification
of the leasing of any station. Accordingly on November 13, 1958, the Respondent
gave the Union written confirmation of previous oral notice that it intended to lease
three stations and on December 5, 1958, it identified the three. At the same time
the Respondent gave notice of intention to lease the remainder of the stations. Thus
in its December 5, 1958, letterit said:
It was also decided at our marketing meeting this morning that the remainder of
the stations had now been established long enough for leasing and in accordance
with our general company policy they also would be leased as soon as we can
make arrangements with the lessees. At this writing, I do not know who the
lessees will be but expect they will be determined shortly and will, of course,
advise you immediately.
The 1958 contract, effective December 5, 1958, was signed about December 16,
1958. On December 6, 9, and 10, 1958, leases were executed for the three stations
referred to above. The remainder of the stations were leased at various times in
1959, the last about August. The first stations leased in the Michigan district were
1 Schedule "A" provided for wage scales, hours, work guarantees, holidays, vacations,
fringe benefits , and miscellaneous provisions.
CLARK OIL & REFINING CORPORATION 753
located in Muskegon , Grand Haven , and Kalamazoo , none of which had been
organized by the Union . In most cases the lessees were former station managers or
attendants for the Respondent.
As each station was leased , the Respondent's employees at such location were
given the option of transferring to other stations operated by the Respondent, or of
remaining at the old station as employees of the lessee or dealer . Most chose to
remain , although some transferred.
D. The checkoff procedure
The 1957 and 1958 contracts contained a union -shop clause , and also a clause pro-
viding for the checkoff of union dues upon authorization by the employee . Appar-
ently all the Respondent 's employees covered by the agreement signed such authoriza-
tions. Prior to the leasing of the stations the collection procedure was as follows.
Each month the Union sent a list to the Respondent containing the names of persons
employed at the stations during the preceding month and required to pay dues, along
with a statement of the amount owed by each person . The Respondent then made
appropriate deductions from wages and forwarded the amount to the Union.
However, as the stations were leased , the Union ceased to send monthly dues state-
ments to the Respondent , and commenced to send them instead to the dealers, or
lessees, who operated the stations . In addition the Union attempted to secure dues
deduction authorizations from new employees as they were hired by the dealers, and
new authorizations from those formerly employed by the Respondent who continued
to work at the stations , under the dealers , after the transfers . As these authorizations
were secured the Union sent them to the particular dealer, and not to the Respondent.
The Union's efforts to have the dealers continue the dues checkoff met with varying
degrees of success; some dealers cooperated , some declined to. However the Union
made no attempt to have any employee discharged for nonpayment of dues.
E. The refusals to bargain
The 1958 contract was for 1 year with a termination date of December 5, 1959, and
with provision that it should continue from year to year thereafter unless written
notice of desire to cancel or terminate was given by either party at least 60 days prior
to expiration. It further provided that the contract might be reopened at any anni-
versary period for renegotiation , without termination.
On October 2, 1959, the Union wrote identical letters to the Respondent and to
each of the dealers notifying them that the Union desired to continue the agreement
but wished to negotiate changes or revisions . Each dealer answered , refusing to
recognize the Union or to negotiate with it. The Respondent did likewise. In due
course, the Union filed the present charge alleging that the Respondent had failed to
bargain . No charge was filed against the dealers.
F. The leases
Insofar as pertinent the leases provide as follows.
They are on a standard printed form, and ai e tor a period of 1 year , and from year
to year thereafter ; terminable , however , by either party upon 30 days' written notice.
The lease covers the building , fixtures, equipment , machinery , and appliances in the
station. Stipulated rental is $1 per month . The dealer is granted a franchise to use
the Respondent's identification and trade name in connection with the sale of gasoline
and other Clark products , but only so long as those products are supplied exclusively
by the Respondent . The gasoline is sold to the dealer upon consignment . The dealer
agrees to pay the posted destination distributor ( tank truck ) price for gasoline and
to maintain a spread of not less than 3 cents per gallon between the distributor price
and the retail price. The delivered gasoline remains the property of the Respondent
until sold by the dealer at retail. The dealer is required to hold in trust and to
deposit daily in a designated bank to the Respondent 's account a sum equivalent to the
dealer's cost of all gasoline sold on each day. In connection therewith the dealer
must forward to the Respondent a copy of the deposit slip, along with a daily report
as to gallonage disposed of, and its value. The dealer assumes the risk of Tnbbery
and holdup , and (after an allowance for shrinkage ) loss or damage to gasoline con-
signed. The dealer is free to purchase products from any supplier he chooses, but
only upon written authorization of the Respondent . If he elects to obtain products
from sources other than the Respondent and discontinues the franchise privilege re-
ferred to above, the dealer agrees to pay additional rental in an amount equal to 3
cents per gallon per month of average gasoline sales . The lease may not be sublet or
586439-61-vol. 129--49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assigned without consent of the Respondent . The dealer agrees to keep the premises
in good repair, less reasonable wear and tear, and to deliver up all improvements to
the Respondent at the expiration of the lease. The dealer assumes the payment of
all charges for water, electricity, telephone, licenses, personal property taxes, and
other "charges and fees arising from his operation and enjoyment of the leased
premises." The Respondent assumes the payment of real estate taxes. The dealer
agrees to keep the property in safe condition to the reasonable satisfaction of the
Respondent, and further agrees to comply with all laws regarding use, condition, and
operation of the property. A further clause provides for indemnification of the Re-
spondent from liability for injuries or damage on the premises to third persons, the
dealer further to carry public liability insurance against personal injury claims in a
stated amount, the Respondent to be included in the policy as a named insured. The
lease specifically stipulates that control and direction of the business on the premises
shall be in the dealer. Thus the clause,
None of the provisions of this lease of the franchise grants [sic] shall be con-
strued as reserving to the LESSOR any right to exercise any control over the
business or operations of the LESSEE conducted upon the leased premises, or
to direct in any respect the manner in which any such business and operations
shall be conducted, it being understood and agreed that so long as the LESSEE
shall use said premises in a lawful manner as herein provided and complies with
the full terms and conditions of the lease and franchise agreement, the entire
control and direction of the activities of the business carried on in said premises
shall be and remain with the LESSEE.
The lease also provides that the dealer has no authority to employ persons on
behalf of the Respondent and, further, that anyone working on the premises at the
request of the dealer shall not be deemed to be an employee or agent of the
Respondent. The dealer shall exhibit signs on the premises stating that the business
is owned, operated, and maintained solely by the dealer. The Respondent reserves
the right of access to the station to examine its condition and to make such changes
or repairs as its judgment dictates, without unreasonable interference with the
dealer's business. Provision is made for a lien in favor of the Respondent upon all
goods and property on the premises to secure performance of the agreement. In
the event of breech of any duty by the dealer or failure to pay the prescribed rent
or for merchandise supplied by the Respondent, the Respondent has the right of
reentry upon, and repossession of, the premises without notice. Finally in the event
of dealer bankruptcy, assignment for creditors, levy, judgment execution, or receiver-
ship, or eminent domain proceedings, or a transfer of the dealer's interest by opera-
tion of law, the Respondent reserves the right to terminate the lease without notice
by entry.
G. The operations under the leases
The operations of the dealers are consistent with the lease arrangements.
Most of the dealers to whom the stations were leased had been employees of the
Respondent prior to the leasing. Capital of various amounts was required of the
dealer to purchase the equipment in the station and inventory, and to provide work-
ing capital. From the instances in the record these amounts apparently varied from
$800 to $1,400. In all but one instance the money was secured by and at the initia-
tive and expense of the dealer. The single exception cited was the case of Lucy
Meade, a former station attendant for the Respondent. Don Dunkin, the Respond-
ent's supervisor, offered Meade and another employee a lease and partnership ar-
rangement at one of the stations, and secured the capital for the two employees by
loan from other dealers located outside Grand Rapids. Meade, however, declined
the offer.
Each dealer hires and discharges his own employees, withholds income and social
security taxes from their wages, and files appropriate returns and makes payment
thereon to the Federal Government. Each dealer maintains his own bank account
in his own name. Each dealer provides his own insurance: liability, fire, and theft;
provides and pays workman's compensation insurance, State unemployment com-
pensation insurance, and, generally, all required State taxes upon sales or business
operations. However, none of the dealers has filed certificates required under the
Michigan Assumed Names statute; some because they were not aware of the require-
ment, others because they assertedly were advised that such filing was unnecessary;
as to the remainder the record does not indicate the situation. All inventories and
supplies needed for the operation of the stations are provided and paid for by the
dealer. In accordance with the provisions of the lease all utility bills are paid by the
dealer, and at each station a sign is maintained identifying the dealer as the owner
and operator of the business Some of the dealers do minor advertising on their
CLARK OIL & REFINING CORPORATION 755
own account. Some give discounts, either in the form of cash allowances or re-
deemable stamps (paid for up to a certain amount by the Respondent), and extend
personal credit. Some carry certain accessories or other motor devices which are
not purchased from the Respondent. In certain instances the Respondent has sought,
with varying degrees of success, to persuade or otherwise influence dealers to curtail
the extent or nature of engagement in the sale of these side-items. Although the
dealers pay the utility bills the utilities are carried in the name of the Respondent.
This is to avoid the necessity of each dealer having to deposit approximately $250
with the utility companies.
Prior to the leasing the stations were supervised for the Respondent by the station
managers and by representatives of the Respondent known as supervisors. These
supervisors made periodic visits to the stations to check upon their operation. Since
the leasing the same individual, Don Dunkin, continued to visit the stations, inspects
them and their operations, and makes whatever suggestions or criticisms he con-
sidered appropriate. These suggestions and criticisms are generally followed, al-
though occasionally they are not. In the case of one station Dunkin takes a more
active role. Here he oversees the operation, and sometimes directs it. This is at the
station operated by Dealer Lester Smith, who holds a full-time job elsewhere. Dun-
kin's intervention at this location is at the specific request of Smith. To the extent
that Dunkin oversees or supervises the operations there it is as the agent of Smith
and not as the agent of the Respondent.
We turn now to the conclusions to be drawn from these facts.
H. Concluding findings
There is no persuasive evidence of animus by the Respondent toward the Union.
The Respondent recognized the Union upon demand, without evidence reluctance,
and without insistence upon formal procedures. Testimony introduced by the Gen-
eral Counsel to the effect that two supervisors of the Respondent (Dunkin and
Eggleston) indicated opposition to the Union, does not establish an antiunion policy
of the Respondent, in the face of the contrary evidence more reflective of the Re-
spondent's neutrality.
As we have seen , the Respondent's policy, of which the Union was made aware
from the beginning , is to lease out its stations as soon as they are satisfactorily
established. The evidence is clear that this was fully and frankly explained to the
Union at the outset of the negotiations for the first contract, and the contract drafted
in accordance therewith. The leases on their face purport to establish the dealers
as independent entrepreneurs. The practices under the leases are consistent with
such a status. Hence it would seem that the dealers and the attendants at the leased
stations are not employees of the Respondent. However, the General Counsel
contends the contrary. His contentions in this regard are as follows . The burden
is of course upon the General Counsel to establish the violations by a preponderance
of the evidence.
First, the General Counsel asserts that the 1958 contract was automatically re-
newed by reason of the failure of the Respondent to serve notice on the Union, in
accordance with the requirements of the contract, 60 days before the termination
date of December 5, 1959, of the Respondent's desire to cancel or terminate the
contract. (Deluxe Metal Furniture Company, 121 NLRB 995). Assuming that this
is so, it does not dispose of the problem. The primary question is whether the
Respondent refused to bargain concerning employees. If the station personnel were
not employees, it was not an unfair labor practice for the Respondent to refuse to
bargain respecting them-whatever may have been the effect upon the contract of
the Respondent's failure to give timely notice of termination.
Secondly, the General Counsel urges that the Respondent's obligations under the
statute could not be extinguished by the leasing arrangement, for the reason that
none of the lessees signed the collective-bargaining contract; hence there were no
legal means by which the Union could enforce the contract terms against the lessees.
However, inability to enforce the contract terms directly against the lessees would
not prevent termination of the contractual obligations if the agreement authorized
it, or of statutory obligations if the statute permits it. But, as we have seen, the
contract specifically required the Respondent to assure compliance by the lessees
with the economic provisions of the contract in connection with any stations leased
during the contract term. In at least one case where the dealer apparently departed
therefrom, the Respondent, upon complaint by the Union, saw to it that the matter
was properly adjusted. That the Union could not directly enforce as against the
dealers-if correct-does not illegalize the leasing.
Third, the General Counsel contends that the dealership arrangement was a
"scheme whereby the Union would lose its representative status." Insofar as this
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement constitutes an assertion that the leasing was a fictitious or malevolent
program conceived to defeat the Union, it is rejected. In the light of the evidence,
I think such a conclusion untenable. Attacks upon the legality of the leases on
the ground that the copies in the possession of the Respondent are not signed by
representatives of the Respondents are found not sustained as a matter of law.
There is no substantial reason to doubt that the Respondent and the dealers entered
into the leases at the times indicated. Nor is it material that the lessees may not have
filed under the Michigan Assumed Name statute. If, as the General Counsel con-
tends, such failure voids the leases under Michigan law (citing Maurer v. Greening
Nursery Co., 199 Mich. 522; and Furstman V. Frank, 206 Mich. 619), that is a
circumstance to be dealt with by the Michigan authorities. It cannot prevent the
severance of an employment relationship within the meaning of this statute.
Fourthly, the General Counsel contends that the Respondent has not relinquished
control of the property and the operations. Thus, the General Counsel say, the
rental is $1 per month; the gasoline remains the property of the Respondent until
sold at retail; the resale price is regulated; the right to deal in products other than
the Respondent's is conditioned; utilities are in the name of the Respondent; and the
Respondent furnishes some trading stamps at no cost to the dealer, handles credit
card transactions, does advertising, and determines the amount of gasoline to be
delivered. Also the General Counsel considers the dealer's capital investment in-
adequate. These factors are not dispositive.
The $1 per month is not, realistically, the true rental. A portion of the cost price
of the gasoline and other products must be deemed part of the consideration. The
other facts referred to do not negate the essential aspects of the entrepreneur status
of the dealer. His compensation is wholly from his sales, he enjoys none of the
benefits ordinarily associated with employee status, he hires, pays, and is responsible
for the station attendants under him-none of whom are employees of the Re-
spondent. He assumes the risk of loss, whether by loss of business or by casualty.
He has, and exercises, the right to reject suggestions by the Repondent as to the
proper operation of the business.
It is true that there is a residual authority in the Respondent , upon 30 days'
notice , to terminate the dealership of anyone whom it considers to be conducting
an unsatisfactory operation. And it is to be assumed that such authority would be
exercised without hesitation if the Respondent felt it necessary . Such conditions,
however, neither create nor preserve an employee status. The most that can be
said is that they establish a month -to-month tenancy-a not-insubstantial tenure-
and one not ordinarily associated with master-servant relationships . Under the
circumstances here such a condition does not negate the existence of an independent
contractor status. The dealer 's capital investment of up to $1,400 cannot be char-
acterized as minimal . It is found that the factors referred to do not establish or
preserve an employer -employee relationship between the Respondent and the dealers
or the station attendants . The provision for repossession by the Respondent in the
event of breach of contract by the dealer , or his loss of control of the business, is not
inconsistent with independent contractor status.
Fifth , the General Counsel urges that the Respondent exercises actual control
over the operation of the stations . In this connection the General Counsel refers
principally to the actions of Dunkin, the Respondent's supervisor , in overseeing the
operation of Lester Smith's station. As we have been , Dunkin acts in that regard
at the request of, and as the agent of, Smith and not the Respondent.
It is apparently true that Dunkin, in his visits to stations, has criticized aspects of
operation , has suggested methods of performance , and has requested change or
elimination of conditions which he regarded as unsuitable , or not in the Respondent's
interest. On occasion he has communicated these sentiments directly to attendants
at the stations. For example, he has asked for the removal of parked cars from the
station grounds, has requested attendants to use money changers and stamp buttons,
has questioned the esthetics or propriety of certain signs or displays , and has made
suggestions as to the hours the station should be kept open. These suggestions or
criticisms are not always followed or heeded. To dealers looking for attendants
to hire Dunkin has suggested the names of persons likely to be available or interested.
These various factors, persuasive-perhaps even decisive-in other contexts of a
conclusion of direction by the Respondent are not so here. The Respondent has a
legitimate interest in the proper operation of the stations. It may make known its
concern over particular conditions, suggest, criticize, and request improvement.
What it may not do is exercise supervision or control over performance of the
operation . I do not find permissible limits exceeded here.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. 757
The test of independent contractor status is whether the employer or principal
retains the right of control over the manner of performance of the contractor. Thus
in the case of Golden Age Dayton Corporation , 124 NLRB 916, the Board said,
The Board has frequently held that, in determining the status of persons
alleged to be independent contractors , the Act requires the application of the
"right of control" test . Where the person for whom the services are performed
retains the right to control the manner and means by which the result is to be
accomplished , the relationship is one of employment ; on the other hand, where
control is reserved only as to the result sought , the relationship is that of
independent contractor . The resolution of this question depends on the facts
of each case , and no one factor is determinative.
See also N.L.R.B. V . Nu-Car Carriers, Inc., 189 F . 2d 756 (C.A. 3); N.L.R.B. v.
Phoenix Mutual Life Insurance Company, 167 F. 2d 983 (C.A. 7); Southern
Shellfish Co., Inc., 95 NLRB 957.
In the instant case the facts do not reflect control in the Respondent over the
manner or means of performance by the dealers . Manifestly the Respondent may
not continue to direct the operation of the stations under the guise of "suggestions."
However , neither must it, in order to avoid a conclusion of control , eschew all
manner of suggestive-or even critical-comment . The difference between what
is control and what is not may at times be subtle , but it is nevertheless real. Here
I am persuaded that the Respondent neither exercises nor has the right to control
the manner or means of performance by the dealers.
Cases cited by the General Counsel , such as Shell Oil Company , 90 NLRB 371;
Standard Oil Company (Indiana), 81 NLRB 1381 ; 1. G. Howard Lumber Company,
93 NLRB 1230 ; Southern Shellfish Co., Inc., 95 NLRB 957; H . T. Davenport, d/b/a
Enterprise Lumber & Supply Co., 96 NLRB 784; Ernest Whiting, et al., d/b/a
Whiting Lumber Co ., 97 NLRB 265 , are distinguishable . In each of those cases the
relationship contained substantial elements of employer control , reflecting employer-
employee status.
Upon the basis of the facts in this record , it is found that the dealers are inde-
pendent contractors , and that neither they nor the attendants at the leased stations
are employees of the Respondent . There was therefore no obligation to bargain con-
cerning the conditions of employment of such persons . In such circumstance it is
unnecessary to consider other questions raised , such as whether the Union continued
to represent a majority of the station attendants at the time of the alleged refusal
to bargain , or whether there is an appropriate bargaining unit . It will be recom-
mended that the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Respondent has not committed unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the Act.
[Recommendations omitted from publication.]
The Great Atlantic & Pacific Tea Company, Inc. and John J.
Schobel . Case No. 14-CA-92240. November 25, 1960
DECISION AND ORDER
On April 14,1960, Trial Examiner Arnold Ordman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8(a) (1) and (3) of the Act
and recommending that it cease and desist therefrom, as set forth in
the copy of the Intermediate Report attached hereto. Thereafter, the
129 NLRB No. 88.