is whether the distributors and their employees were employees of the plaintiff from January 1, 1936 to December 31, 1939, inclusive, under the Acts aforesaid. The plaintiff contends that they were not such employees; the defendant contends that they were.
The regulations duly made under the Social Security Act cover the subject of employment and are to be found in regulations 90 and 91. In regulation 91 it is provided:
"Every individual is an employee within the meaning of Title VIII of the Act if he performs services in an employment as defined in section 811(b) (see article 2).
"However, the relationship between the person for whom such services are performed and the individual who performs such services must as to those services be the legal relationship of employer and employee. Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished.That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important fact indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishings of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor."
All of the adjudicated cases which involve the same question, or substantially the same, have been decided in favor of plaintiff's contention. See American Oil Co. v. Fly, 5 Cir., 135 F.2d 491, 147 A.L.R. 824; Indian Refg. Co. v. Dallman, D.C.Ill., 31 F.Supp. 455; Id., 7 Cir., 119 F.2d 417; Orange State Oil Co. v. Fahs, D.C.Fla., 52 F.Supp. 509; Id., 5 Cir., 138 F.2d 743; Standard Oil Co. v. Glenn, D.C.Ky., 52 F.Supp. 755; Texas Co. v. Higgins, D.C.N.Y., 32 F.Supp. 428; Id., 2 Cir., 118 F.2d 636; American Oil Co. v. Wheeless, 185 Miss. 521, 187 So. 889; Barnes v. Indian Refining Co., 280 Ky. 811, 134 S.W.2d 620; Texas Co. v. Bryant, 178 Tenn. 1, 152 S.W.2d 627; Texas Co. v. Wheeless, 185 Miss. 799, 187 So. 880; Williams v. United States, 7 Cir., 126 F.2d 129; Anglim v. Empire Star Mines Co., 9 Cir., 129 F.2d 914; United States v. Mutual Trucking Co., D.C., 51 F.Supp. 114; Id., 6 Cir., 141 F.2d 655.
The distributors in this action were men of good financial standing. Many of them were engaged in other lines of business. They had a substantial financial investment under their contracts with plaintiff. They had complete control of the sale of petroleum products under their contracts with the plaintiff. They had the right to employ and discharge such employees as they desired to employ. They, in other words, were in control of the distribution of petroleum products, by wholesale, in the territory described in their contracts. These and the other facts before recited, make such distributors and their employees independent of the plaintiff and not employees thereof.
Defendant argues that this action is ruled in principle by the decision in National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 64 S. Ct. 851, and other similar cases. In that case, the meaning of the term "employee" in the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., was held to be determined, not exclusively by reference to common law standards, local law or legal classifications made for other purposes, but with regard also to the history, context and purposes of the Act and to the economic facts of the particular relationship. The facts of that case and the law involved therein are substantially different from the facts of the present action and the law applicable thereto. I am of the opinion that this action is covered by the aforesaid regulations and by the principles of law laid down in the aforesaid cases.
Let an order for judgment be prepared in accordance with the foregoing findings of fact, conclusions of law and this opinion.
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