Martin-Marietta Co.

National Labor Relations Board - Board Decisions

Apr 26, 1962

136 N.L.R.B. 1530 (N.L.R.B. 1962)

1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner is convinced that they are potentially related to other unfair labor
practices proscribed by the Act that the danger of their commission in the future is
to be anticipated from the Respondents' conduct in the past. The preventive pur-
poses of the Act will be thwarted unless the remedy is coextensive with the threat.
Accordingly, in order to make effective the independent guarantees of Section 7 and
thus effectuate the policies of the Act, it will be recommended that the Respondents
cease and desist from in any manner infringing upon the rights of employees guaran-
teed in the Act.
It has been found that the Respondent Employer unlawfully assisted the Re-
spondent Hod Carriers by executing and maintaining the 1961 contract. It will, there-
fore, in accordance with the Board's established policy in such cases, be recommended
that further recognition of the Respondent Union and performance of the agreement
shall be conditioned upon demonstration by the Respondent Union of its exclusive
representative status in a Board-conducted election.
The "closed shop" practices herein revealed fully warrant the remedial provision,
recommended below, that the Respondents jointly and severally make all employees
and former employees whole for moneys unlawfully deducted from their pay since
January 6, 1961, the date 6 months before charges against each were filed.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Hod Carriers', Building and Common Laborers' Union of America,
Local No. 430, AFL-CIO, and Industrial Union of Marine & Shipbuilding Workers
of America, Local No. 18, are labor organizations within the meaning of Section
2(5) of the Act.
2. By executing and maintaining the contract of 1961 the Respondent Ship-
building has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a)(1), (2), and (3) of the Act, and the Respondent Hod Carriers has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act.
3. By requiring, as a condition of obtaining employment, applicants and em-
ployees to join the Respondent Union, the Respondents have engaged in and are
engaging in unfair labor practices within the meaning of Section 8(a)(1), (2), and
(3) and Section 8(b) (1) (A) and (2) of the Act.
4. By discriminating against employee Nelson because he failed to obtain with-
drawal of charges filed under the Act, the Respondent Shipwrecking his engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (4) and
(1) of the Act.
5. By restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act, the Respondent Hod Carriers has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(b)(1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Marietta Paint and Color Company , a Division of Martin-
Marietta Company i and Local Union No. 13589 , District 50,
United Mine Workers of America . Case No. 9-CA-2145. April
26, 1962
DECISION AND ORDER
On April 18, 1961, Trial Examiner Earl S. Bellman issued his
Intermediate Report in the above-entitled proceeding, finding that
'After the issuance of the Intermediate Report herein, the Respondent named in the
complaint, American Marietta Company merged with the Martin Company Marietta
Paint and Color Company, a division of American Marietta Company, was included in
this merger The Respondent's motion for substitution of Martin-Marietta Company as
the successor to American Marietta Company in this matter is hereby granted
136 NLRB No 130.
MARIETTA PAINT AND COLOR COMPANY, ETC. 1531
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 Intermediate Report attached here-
to. Thereafter, the General Counsel and the Charging Union filed
exceptions to the Intermediate Report. A supporting brief was also
filed by the General Counsel.
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 Inter-
mediate Report, the exceptions and brief, and the entire record in this
proceeding, and, finding merit in the exceptions, hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
only insofar as they are consistent with our Decision and Order.
The complaint alleged that Respondent had violated Section 8(a)
(1), (3), and (5) by refusing to bargain with the Charging Union,
the incumbent representative of its production and maintenance em-
ployees, on behalf of Herman McKenna, and by discharging Mc-
Kenna because of membership in the Union. The Trial Examiner
held that, even if he were to assume that McKerina was an employee
of the Respondent, and not an independent contractor as the Re-
spondent contends, McKenna's termination was for sound economic
reasons and not in violation of Section 8(a) (3). He also held that
Respondent's refusal to bargain with the Union with respect to Mc-
Kenna was not a violation of Section 8(a) (5) because McKenna's
duties and terms and conditions of employment were significantly
different from those of employees included in the production and
maintenance unit.
Since we regard the central issue to be whether McKenna was an
employee or an independent contractor, an issue which the Trial
Examiner believed it unnecessary to resolve, we briefly summarize
the salient facts which are set out in full detail in the Intermediate
Report based mainly on undisputed testimony.
McKenna was an experienced truck mechanic who, before begin-
ning his relationship with Respondent in 1950, had worked for an
automobile repair shop where much of his work had been in repairing
Respondent's trucks. Respondent's general manager at that time,
Dr. Davis, arranged with McKenna to leave his employment in order
to work exclusively on its trucks at Respondent's premises for $120
for each semimonthly period.' Over the years, this was raised to
$152. McKenna was guaranteed 40 hours work per week, but was also
required to be available at all times for emergency work on Respond-
ent's vehicles, without additional compensation. He was authorized
to buy automotive parts and accessories for the account of Respond-
"Although McKenna's starting rate was stated to he $1 50 an hour, it actually amounted
to less since he was paid semimonthly for an amount computed on a biweekly basis
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent or, in the case of small purchases, to pay for them himself and to
be reimbursed the actual amount expended. McKenna supplied his
own hand tools. Certain small items such as bolts, screws, etc., and the
use of heavy tools, were furnished to him by the Respondent's main-
tenance department without charge.
Twice a month he would submit an invoice for the amount agreed
upon with a breakdown of his time distributed among individual
vehicles, but never exceeding 40 hours and never exceeding the guar-
anteed lump sum even when the hours actually worked were in excess
of 40 per week.
McKenna was paid semimonthly while all other employees were
paid weekly. When he was hired in 1950, he was not required to fill
out an employment application form or to take the physical examina-
tion required of employees. He was not covered by the Respondent's
group insurance or pension plan, and no deductions were made from
his remuneration for taxes or social security contributions. McKenna
worked in a garage partitioned off from one end of a shed on the plant
grounds, near the maintenance department. In the case of emergency
breakdowns of Respondent's vehicles on the road, he was required to
travel to the scene and would then be reimbursed for all his expenses
on such trips. While Dr. Davis was general manager of the plant,
McKenna also did some miscellaneous work for him but after his death,
2 years before the hearing, the amount of time spent by McKenna in
other than truck repair work was reduced to a minimum.
In 1951 the Union became the exclusive bargaining representative
for a unit consisting of all production and maintenance employees in-
cluding the Respondent's truckdrivers. No job rate for auto mechanic
was included in bargaining agreement thereafter, and the Union and
Respondent considered him to be outside the unit. This state of events
continued until 1960, when the Union obtained a wage increase for
the employees whom it represented. Early in June, McKenna asked
General Manager Weber for an increase from $1.90, the rate he was
getting, to $2.25 an hour. Weber told McKenna that he would take the
matter up with his superior in Chicago. A few days later Weber told
McKenna that the Chicago office had refused to grant his request for
an increase because the sales and earning capacity of the plant would
not allow it at that time. In the meantime, McKenna applied for
membership in the Union. About 2 weeks thereafter, on June 28, 19601
at a meeting attended by the plant superintendent and the purchasing
agent acting for the Respondent, and the Union represented by its
business agent, the latter stated that McKenna wanted to be repre-
sented by the Union and requested negotiations for a classification
and wage rate for him. Respondent's representatives at once stated
that McKenna was not an employee but an independent contractor.
The Union took issue with that and the parties agreed to take a short
MARIETTA PAINT AND COLOR COMPANY, ETC. 1533
recess so that the superintendent could check the matter with General
Manager Weber. Weber then called the Chicago office to obtain ad-
vice and immediately thereafter decided to terminate McKenna's re-
lationship. When the meeting resumed, the Respondent's representa-
tives informed the union business agent that they would not discuss
bargaining with respect to McKenna since he was a contractor. About
3:30 that afternoon, McKenna was called to Weber's office to be told
that their working arrangement was terminated. The next day Re-
spondent started having its automotive equipment repaired by a com-
mercial garage.
The Trial Examiner decided this case without actually determining
McKenna's status, but gave it as his opinion that if the "right to con-
trol" test were accorded predominant weight in this matter, he would
consider McKenna to be an independent contractor. He came to this
conclusion apparently only because McKenna's work was skilled and
was performed without close supervision. We believe that the Trial
Examiner erred in attaching decisive importance to these factors and'
failing to give adequate consideration to other significant elements in
the relationship of McKenna and the Respondent. Among these are
the Respondent's absolute control over McKenna's livelihood, inherent
in the fact that McKenna's investment was limited to his labor, with
no opportunity to risk capital or exercise business judgment. He
earned a fixed unvarying amount, related to hours worked rather than
to a risk undertaken. He could not hire assistants or substitutes. In
short, although no one stood at his side and told him how to do his
work, the Respondent in fact controlled his activities in the same ex-
tent and by the same means which it exercised over admitted
employees.'
We do not believe that this conclusion requires any qualification
or change because McKenna's pay was computed on a basis different
from that of other employees, that he was paid at other times or did
not share their fringe benefits. Nor can Respondent's good-faith be-
lief that McKenna was not an employee excuse its refusal to bargain
with the Union on his behalf once it is determined that McKenna is in
an employee status .4
In view of our conclusion that McKenna was not an independent
contractor but an employee, it is necessary to pass on the validity of
the Trial Examiner's rationale for not finding the violations alleged
in the complaint. The Trial Examiner's first reason is that the Re-
spondent acted in good faith in terminating McKenna and refusing
to bargain with the Union, as indicated by the fact that no independent
violations of Section 8 (a) (1) are alleged, nor did the Respondent
3 US v Silk, doing business as Albert Silk Coal Co, 311 U.S. 704.
4-Cf United Butchers Abattoir, Inc, 123 NLRB 946, and Tom Thumb Stores, Inc,
123 NLRB 833
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
show any animus against the Union. Although we accept his premises,
we do not consider them sufficient to require the conclusion he reached.
The chronology of events, particularly the fact that Respondent de-
cided to terminate McKenna inmmediately after it became aware that
he had asked the Union to represent him, is proof of Respondent's
intention to discriminate against him because he had joined the Union
and to refuse to bargain with the Union as to his conditions of
employment.
Secondly, the Trial Examiner relied for his conclusion on the
assumption that Respondent was under no obligation to bargain with
respect to McKenna because he was not properly part of the appro-
priate unit. We find no merit in this. McKenna"s work was that of
a truck mechanic and, under established Board precedent, such a
classification is properly includable in a production and maintenance
unit.' Neither his work, nor his terms and conditions of employment,
different though they may have been from that of other maintenance
employees, require his exclusion from the plant-wide unit.
Finally, the Trial Examiner found that Respondent had sound
economic reasons for terminating McKenna at the time it did. We do
not believe that Respondent made out a credible case for its assertion
that it had for some time been considering a change in its truck repair
work. Apparently, this is based on nothing more than a generalized
concern with cutting costs. But even if we were to assume validity in
Respondent's argument, which the Trial Examiner accepted, the pre-
cipitateness of McKenna's discharge as soon as Respondent learned
that McKenna had joined the Union would be sufficient to convince
us that the Respondent 's reliance on an economic justification for the
discharge is merely an afterthought.
The Remedy
Having found that Respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. As
we find merit in the General Counsel's exceptions to the failure of the
Trial Examiner to hold that Respondent refused to bargain with the
Union for an employee who was properly in the unit represented by
the Union, we shall order the Respondent, upon request, to bargain col-
lectively with the Union with respect to the wages, hours, and other
terms and conditions of employment of its truck mechanics. We shall
also provide that Respondent offer Herman McKenna immediate and
full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority and other rights and privileges,
resuming its truck maintenance and repair work to the extent necessary
Foremost Dai es, Inc, 118 NLRB 1424
MARIETTA PAINT AND COLOR COMPANY, ETC. 1535
to afford him such reinstatement.' We shall also provide that
McKenna is to be made whole for any loss of pay he may have suf-
fered by reason of Respondent's discrimination against him, by pay-
ment to him of a sum of money equal to that which he would normally
have earned as compensation during the period from his discrimina-
tory discharge to the date of the Intermediate Report herein, and from
the date of this Decision and Order to the date of Respondent's offer
of reinstatement, less his net earnings, to be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289.
Because the conduct of the Respondent evinces a purpose to thwart
the right of its employees freely to select their collective-bargaining
representative, it is likely that such purpose will be effectuated in the
future by the continuance of the unfair labor practices found herein
or by the commission of other unfair labor practices. We shall there-
fore order the Respondent to cease and desist from violating the Act
with respect to the specific violations found as well as in any other
manner.
Upon the basis of the foregoing, and upon the entire record in this
case, the National Labor Relations Board hereby makes the following :
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. By discharging Herman McKenna on June 28, 1960, the Re-
spondent, Marietta Paint and Color Company, a Division of Martin-
Marietta Company, has discriminated in regard to his hire and tenure
of employment, thereby discouraging membership in Local Union No.
13589, District 50, United Mine Workers of America, in violation of
Section 8(a) (3) of the Act.
4. By refusing to bargain with the above-named labor organization
on behalf of Herman McKenna, while engaged as an employee in
work within the unit for which the Union is exclusive bargaining
representative, the Respondent has acted in violation of Section
8(a) (5) of the Act.
5. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Marietta Paint
OE S Kingsford, doing busaness as Kingsford Motor Car Company, 135 NLRE 711,
footnote 1.
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Color Company, a Division of Martin-Marietta Company,
Marietta, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Local Union No. 13589,
District 50, United Mine Workers of America, as the exclusive repre-
sentative of its employees engaged in truck maintenance and repair
work, as part of the unit of all production and maintenance employees
which the Union presently represents.
(b) Discouraging membership in Local Union No. 13589, District
50, United Mine Workers of America, or in any other labor organiza-
tion of its employees, by discharging, laying off, or in any other
manner discriminating in regard to their hire or tenure of employ-
ment or any term or condition of employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in any other concerted activity for
the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities, except to the extent that
such rights may be affected by an agreement requiring membership in
the labor organization as a condition of employment, as authorized
by Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Herman McKenna immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority and other rights and privileges, resuming its truck main-
tenance and repair operations to the extent necessary to afford him
such reinstatement, and make him whole for any loss of pay which he
may have suffered, in the manner set forth above in the section en-
titled "The Remedy."
(b) Upon request, bargain collectively with the above-named labor
organization as the exclusive representative of the employees in the
unit which its presently represents, including therein employees en-
gaged in truck maintenance and repair work and, if an understanding
is reached, embody such understanding in a signed agreement.
(c) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay
due and the rights of employment under the terms of this Order.
(d) Post at its plant at Marietta, Ohio, copies of the notice at-
MARIETTA PAINT AND COLOR COMPANY, ETC. 1537
tached hereto marked "Appendix." ° Copies of said notice, to be fur-
nished by the Regional Director for the Ninth Region, shall, after
being duly signed by the Respondent, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps it has taken to comply
herewith.
MEMBER RODGERS dissenting :
I disagree with my colleagues' unfair labor practice findings here-
in. In my view, the record fully supports the Trial Examiner's find-
ings, conclusions, and recommendations. Accordingly, like the Trial
Examiner, I would dismiss the complaint in its entirety.
MEMBER FANNING took no part in the consideration of the above
Decision and Order.
' In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Oider."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby inform you that :
WE WILL NOT discharge any of our employees or in any other
manner discriminate in regard to their hire or tenure of employ-
ment or any term or condition of employment in order to dis-
courage membership in Local Union No. 13589, District 50, United
Mine Workers of America, or in any other labor organization of
our employees.
WE WILL NOT refuse to bargain collectively with Local Union
No. 13589, District 50, United Mine Workers of America, as the
exclusive representative of the employees in the appropriate unit,
including therein employees engaged in truck maintenance and
repair work.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights guaranteed by
the Act.
WE WILL offer to Herman McKenna immediate and full rein-
statement to his former or substantially equivalent position, with-
1538 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
out prejudice to his seniority and other rights and privileges, and
will resume our truck maintenance and repair operations to the
extent necessary to afford him such reinstatement, and make him
whole for any loss of pay suffered as a result of the discrimination
against him.
MARIETTA PAINT AND COLOR COMPANY, A DIVISON
OT MARTIN-MARIETTA COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Transit Building, 4th & Vine Streets, Cincinnati, Ohio, Tele-
phone Number, Dunbar 1-1420, if they have any question concerning
this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, in which all parties were represented and were afforded full
opportunity to participate, to argue orally, and to file briefs, was heard before Earl
S. Bellman, the duly designated Trial Examiner, in Marietta, Ohio, on October 5, 6,
and 7, 1960, upon a complaint involving Section 8(a)(1), (3), and (5) of the Act,
duly issued by the General Counsel on August 25,1 and a duly filed answer of
Marietta Paint and Color Company, a Division of American-Marietta Company,
the Respondent herein.
With respect to the unfair labor practices, the complaint, as amended at the hear-
ing, alleged, in substance, that: (1) at all times since June 1951, the Charging
Party in the instant matter, Local Union No. 13589, District 50, United Mine
Workers of America, herein called the Union, has been the exclusive collective-
bargaining agent of the Respondent's employees in a specified production and mainte-
nance unit, and has been recognized as such by the Respondent; (2) about May 11,
1959, a 2-year agreement covering the employees in said unit was executed by the
Union and the Respondent; (3) about June 28, 1960, the Respondent "discharged
H. F. McKenna, a truck mechanic employed by it in said unit," and has since re-
fused McKenna reinstatement, "all because of his membership in, sympathies for
and activities on behalf of the Union"; and (4) the Respondent, since about June 28,
"has refused to bargain with the Union with respect to the wages, hours and other
terms and conditions of employment and to the discharge of" McKenna.
With respect to the foregoing allegations, the Respondent, in its answer: (1) denied
the allegation as to its discharge of McKenna; (2) asserted rather that McKenna
"was at no time an employee of Respondent but was at all times an independent
contractor" and that the Respondent had no knowledge of McKenna's union mem,
bership or sympathies; (3) admitted entering into a 2-year agreement with the
Union as the exclusive bargaining agent of the Respondent's employees in the
appropriate unit; and (4) denied the alleged refusal to bargain with respect to
McKenna, essentially on the grounds that McKenna has never been an employee
and has never been included in the unit covered by its contract with the Union.
During the presentation of the General Counsel's case, much of the testimony of
Herman F. McKenna, who entered into the sharply disputed relationship with the
Respondent in 1950, concerning its inception and about the first 8 years of said
approximately 10-year relationship, was taken over a continuing objection on the
part of the Respondent, stemming from the fact that the two agents of the Respond-
ent principally involved in said relationship had both died more than 2 years before
the termination of that relationship in 1960. My standing ruling on such testimony
was made "without prejudice to reconsideration of the whole matter in the light of
' Wben the year is omitted hereinaftei , it will be understood to be 1960
MARIETTA PAINT AND COLOR COMPANY, ETC. 1539
the entire record." Further consideration of the interrelated legal and evidentiary
problems involved will be found hereinbelow.
After the General Counsel and the Union had rested, the Respondent moved to
dismiss the complaint on several grounds stated on the record.2 Following the oral
argument on the record on said motion, it was denied without prejudice to its re-
newal. At the conclusion of the evidence, the Respondent renewed its motion to
dismiss on the above grounds, and ruling was reserved. Said motion is disposed of
in accordance with findings, conclusions, and recommendations which follow. Be-
fore the hearing closed, the General Counsel and the Respondent argued orally on
the record.
Pursuant to extensions of time for filing to December 5, 1960, the Respondent has
duly filed an able and detailed brief, which has been carefully considered. The
General Counsel did not file a brief, but by letter, dated December 5, 1960, set forth,
with respect to six of the cases cited during oral argument, "the correct name and
citation" of each case. The transcript is hereby corrected, in accordance with the
aforesaid letter, which is also made a part of the record.3
Upon the basis of the entire record in this case, and after considering all relevant
contentions, and evidence, including my observation of the demeanor of the wit-
nesses at the hearing, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent herein maintains a plant and office at Marietta, Ohio, and is a
division of American-Marietta Company, which has offices in Chicago, Illinois. The
Respondent is engaged in the manufacture of paints and allied products at its
Marietta plant. During the 12-month period preceding August 25, 1960, which is
a representative period, the Respondent had a direct outflow, valued in excess of
$50,000, of its products in interstate commerce from its Marietta plant to points
outside of the State of Ohio. The Respondent's answer admits that it is engaged
in commerce within the meaning of the Act, and I find that it will effectuate the
policies of the Act to assert jurisdiction.
If. THE LABOR ORGANIZATION INVOLVED
Local Union No. 13589, District 50, United Mine Workers of America, herein
called the Union, is admittedly a labor organization within the meaning of Section
2(5) of the Act. The Union, which filed the charge in the instant matter of July
7, 1960, has a current 2-year contract with the Respondent covering employees
in an admittedly appropriate unit. For some years, all of the employees in said
unit, except for McKenna, whose inclusion in said unit is one of the issues in the
instant matter, have been members of the Union.
III. THE ALLEGED UNFAIR LABOR PRACTICES 4
A. The setting and background developments
As earlier indicated, the relationship of primary concern herein, that between
Herman McKenna and the Respondent, which admittedly was terminated on
2 Essentially involved were contentions that the complaint was "a mere subterfuge,"
violative of the Respondent's rights under the contract, because there had been "no com-
pliance with the grievance procedure that was called for under the contract, ' and also
that, for various other reasons, the General Counsel had failed "to make a case "
3 There are numerous others errors in the transcript which might well be corrected,
but I deem most of them not sufficiently material to warrant doing so. However, a few
corrections are made hereinafter, at points where they relate to findings In addition,
the following corrections are hereby made
Page 47, line 3, the citation is corrected to read, "Chun King Sales, Iiac, 126
NLRB 851."
Page 331, lines 4 through 7, are corrected to show a question, rather than a state-
ment, and to begin with the words, "Is the General Counsel contending."
Page 331, line 24, "different ones in" is corrected to read "differences between
Page 341, line 17, "proper" is corrected to read "improper "
Page 509, line 6, "Response" is corrected to read "reasons "
Page 511, line 1, is corrected to read "that all watchmen are guards, within the
meaning of the Act, and hence can."
4 Evidence relied on in making findings in this section often will not be identified when
essentially no material conflicts or inconsistencies are involved Further, variations and
641795-63-vol. 136-98
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
June 28, 1960 , covered a period of approximately 10 years. It had its inception in
mid-1950, a year before the Union entered the picture at the Marietta plant, when
Dr. L. E. Davis, the deceased general manager , entered into an oral understanding
with McKenna concerning the maintenance of company vehicles. We have only
McKenna's version of that understanding , which was admitted over earlier-noted
objections of the Respondent , and which will now be summarized.
McKenna, an experienced automotive mechanic ,5 had been working at Hopkins
Pontiac, a garage in Marietta which was then repairing motor vehicles for the Re-
spondent, for about 1ih years before June 1, 1950, the date upon which McKenna's
direct association with the Respondent commenced. In fact, McKenna was the me-
chanic who was doing almost all of the work on the Respondent 's trucks and
equipment ,6 and it was through that work on the Respondent 's vehicles , to which
McKenna was devoting "probably half" of his time , that McKenna met General
Manager Davis, whom he had, by June 1950 , known for "probably a year," and
whom he considered a "pretty good man" with whom he developed "a personal
relation ." McKenna, who was then not "getting too good " hours at Hopkins Pontiac,
and Davis , who knew that McKenna "was working on their trucks ," talked over the
situation . Davis asked McKenna "to take care of his fleet of trucks" for more com-
pensation , figured at $1.50 an hour on a guaranteed 40-hour week, than McKenna
was then making at Hopkins Pontiac .? All work in maintaining the "fleet of trucks"
was to come within the guaranteed 40-hour week , "regardless of when [ McKenna]
worked , nights, Saturdays , or Sunday"; McKenna was to be available at "all times,
24 hours a day, if necessary ," for emergency work on the Respondent 's vehicles; 8
McKenna was to "buy parts at the best discount that [he] could get and turn the
sales slips in to the purchasing agent ," who would then "pay these bills"; and the
Respondent was "supposed to build [McKenna] a garage on the Company grounds."
According to McKenna , who testified that no kind of written agreement was entered
into at any time, the promised garage "never did get built ," but, as McKenna put it,
"They did fix me a place where I could run the trucks in out of the weather and work
on them."
Whatever actually may have been the intention and understanding of Davis and
McKenna upon entering into their relationship , a problem to which we subsequently
will return , it is clear that Davis did not , as the General Counsel concedes , follow
inconsistencies as to what impress me as minor matters are not discussed when the weight
of the credible evidence seems reasonably clear. Also , factual details of relatively minor
significance are often omitted However , what seem to be material conflicts and in-
consistencies will be discussed , and the parties may be assured that all of the details and
variations in the record have carefully been considered In reaching the findings and con-
clusions which follow
5 McKenna , who is 55 years old , testified, when asked about his "training and experience
prior to 1950 In automotive repair," that he "went through Carter Carburetor School at
St Louis, Missouri ," and that he had "done practical mechanical work for 25 years "
6I am convinced , from the record as a whole, that while most of the automotive equip-
ment involved consisted of various trucks and trailers, there were also included , during
some of the 10-year period involved, company passenger automobiles , one of which was
used by General Manager Davis . It is not clear whether or not such passenger auto-
mobiles were included in automotive work being done by Hopkins Pontiac for the Respond-
ent at the time McKenna agreed to take over that work
7 McKenna admitted that he could not remember "what term was used" by Davis to
characterize the "dollar and a half an hour at that time" which he said Davis offered
Throughout the record , such terms as "wages," "salary," "rate," "remuneration ," "pay,"
"lump sum," and "compensation" are used to characterize what McKenna received from
the Respondent . In view of the uncertainty as to the term originally used and the inter-
changeable way in which such terms as the foregoing were used throughout the hearing,
I believe no significance can fairly be attached to the use at any time of any particular
term Accordingly , I will use the term "compensation " in this report in a neutral way,
as far as the basic employee-contractor problem is concerned Further, I am satisfied,
from records and testimony which will subsequently be discussed , that the arrangement
worked out was actually on a semimonthly basis, rather than on an hourly or a weekly
basis.
8 As to the total amount of work to be thus performed , it must be remembered that while
McKenna had been doing almost all of the work on the Respondent ' s vehicles at Hopkins
Pontiac, he had been devoting "probably half" of his time to said work
MARIETTA PAINT AND COLOR COMPANY, ETC. 1541
the "formal procedure " used by the Respondent in hiring employees .9 In fact,
the evidence is consistent in showing that McKenna went through none of the steps
of the hiring procedure . All applicants for employment are required initially to
file a written application and to pass a thorough physical examination . McKenna
admitted that he did not , either at the time he "first went out to the plant" or at any
time thereafter , fill out an application for employment or take a physical examina-
tion. McKenna also admitted that he did not , at any time , fill out "an income tax
deduction form," or "any form in conjunction with group insurance ," or "a form with
reference to pension plan." Such forms are among those which employees are
required to have on file. In addition , the present general manager , Clyde R. Weber,
who succeeded to that position shortly after the death of Dr. Davis,10 convincingly
testified that none of the various enumerated forms which employees are required
to have on file is on file for McKenna.
The evidence consistently shows that throughout his 10-year connection with the
Respondent , McKenna's compensation has been computed and remitted on a basis
quite different from that of any of the employees in the plant, not only hourly
employees in the unit for which the Union is now recognized , but salaried employees
outside of it, including managerial employees . Thus all employees appear on the
Respondent 's payroll , the hourly employees in the unit being paid once a week. They
all receive regular payroll checks, issued through the Chicago office of American-
Marietta Company, with deductions being withheld for such things as income taxes,
social security , and group insurance . McKenna only received checks, without any
such deductions , which were issued locally at Marietta . His checks were issued twice
a month, on or about the 15th and the last day of each month . ll This distinctly
different practice with respect to McKenna , who never punched the timeclock, as is
required of all of the employees in the unit, was instituted by General Manager
Davis. It was followed at all times , without any modification , both before and after
his death . Under said practice , McKenna was not required to write out and submit
his own invoices . Rather he took figures , which he kept in notebooks of his own,
to Marie Bierschwal , an employee in the accounting department in Marietta . 12 These
figures were distributed , by hours worked and amounts due, to each of the company
vehicles being maintained at the time, and only to such vehicles. Bierschwal
checked McKenna's figures only to the extent of determining that the amounts of
money allocated to the respective vehicles totaled up to the lump sum being paid
McKenna at any given time. When McKenna started , this semimonthly sum was
$120. It eventually increased to $152 per half-monthly period , McKenna's remuner-
ation at the time of his separation . The increase from $ 120 to $ 152 every half
month , regardless of how few or how many hours McKenna actually may have
worked , took place in steps, the last of which occurred prior to Davis' death. And
no matter what else McKenna may have done during any period , all of his time was
listed as spent on vehicles, and was so charged.
Each of the semimonthly checks "on the general fund" which Bierschwal prepared
for signature locally was accompanied by an invoice, based on the amount McKenna
charged in his notebook to each company vehicle then being maintained . There are
25 such invoices , with their accompanying checks, in evidence , which are agreed to
be representative . They are about equally divided among the years of 1957, 1958,
9In his closing remarks , the General Counsel , after stating that Davis "never fully in-
formed [McKenna ] of his terms of employment," and that it Is "not clear" what McKenna's
relationship was "because of the fact that Dr. Davis, who hired Mr . McKenna, is not pres-
ent to testify," also stated•
We can only leave to conjecture why Dr. Davis decided that he didn't want to put
Mr McKenna all through the red tape . Maybe he thought that the home office would
refuse him the privilege of hiring this man.
Be that as It may, Davis was not, in any event, attempting "to keep his truck mechanic
out of the bargaining unit," because no such unit was at that time In existence
10 Weber, the principal witness for the Respondent , has worked at the Marietta plant
since 1926 , and was assistant general manager from 1941 until the death of Dr. Davis
in February 1958 . Weber then became acting general manager , succeeding to the posi-
tion of general manager in June 1958.
"A few of the later discussed checks and Invoices In evidence bear dates 1 or 2 days
earlier, apparently because the final day of the semimonthly period fell on a nonworking
day.
12 Bierschwal , whose duties since 1936 have included "writing checks , paying the bills
that are paid locally, and doing the accounts receivable ," impressed me as a forthright
and accurate witness To the extent that McKenna's testimony Is Inconsistent with hers,
Bierschwal 's testimony is credited , rather than that of McKenna.
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1959, and 1960, and are comparable periods of each year, being for the months of
March, April, and May. There are seven vehicles listed on each of the invoices for
1959 and 1960. For the earlier years, 1957 and 1958, the number listed ranges
from 9 to 11.
All 25 of these invoices are in the form of bills to the Respondent from "H F.
McKenna" $152 for "Repair of company trucks." There then follows on each
invoice a breakdown of that lump sum, distributed to individually identified vehicles
for varying amounts, which always add up to $152, without including on any invoice
anything other than repair of vehicles. While most of the items listed under vehicles
are for repair of trucks, several invoices include other types of vehicles, particularly
one listed as "Dr. Davis' Olds." 13
Other aspects of the involved and closely litigated relationship between McKenna
and the Respondent will be reserved for a subsequent section of this report, dealing
with the difficult question of whether McKenna was actually an employee of the
Respondent, regardless of what he may have been intended and considered to be.
But before proceeding with our chronology, it should be noted that early during
this relationship, McKenna admittedly inquired to find out if he could be covered
by the Respondent's group insurance and hospitalization plan for its employees and
could come under the employee pension program. McKenna testified that he made
that inquiry of Davis; that he never received any answer to his inquiry; and that he
never again raised the question. However, I credit the more plausible version of
Bierschwal, which was convincingly given, that right after McKenna started, she
"wrote to Chicago, to the Insurance Department," about McKenna's inquiry as to
whether "he could be covered on the same insurance plan as our employees"; that
in reply "they said he was not an employee and could not be covered"; and that
McKenna was so informed and said, "Well, that is that."
The Union entered the picture at the Marietta plant in June 1951, but McKenna,
who had by then been at the plant maintaining vehicles for a year, admittedly was
not contacted by any union organizer, and admittedly did not make any effort to
contact one. As established by an admitted allegation of the complaint, the Union
has been, since June 1951, "the duly selected and designated exclusive collective
bargaining representative," in the following admittedly appropriate unit, which does
not list garage or auto mechanic among either the inclusions or the exclusions:
All production, maintenance, production checkers, truckdrivers, firemen, shift
leaders, employees of the Company [the Respondent herein], and shall exclude
designated foremen and superintendents, laboratory employees, and office cleri-
cal employees.
The Union's exclusive bargaining status in the above unit was established after an
election "upon appropriate certification by the Impartial Judge of the Election,
jointly selected by the parties." 14 McKenna admittedly did not vote in that election.
The evidence as a whole indicates that, since June 1951, the employees in the
above unit have been covered by a series of written agreements between the Union
and the Respondent, to which have been attached schedules, giving job classifications,
the employees occupying each classification, and the rates pertaining thereto. The
only copy of such an agreement which is in evidence is the current 2-year agreement,
entered into on May 11, 1959, a 10-page document which covers the usual subject
matter of labor contracts, was duly executed by representatives of the Respondent
and the Union, and to which is attached a 2-page schedule of job classifications,
names of employees, and wage rates. But there is also in evidence an earlier schedule
which was attached to the agreement for 1952. That 2-page schedule sets out, among
other things, the rate "effective 6-16-52" for each classification. With respect to
whether or not the Union has simply been bargaining for employees and their classi-
fications of work as employees have chosen to join it, it is significant to note that
the names and rates of 56 employees are given on this earlier schedule, and that
there are 3 classifications for which no employees' names appear but for which there
are rates to apply "after W. S. B. approval "
By contrast, in the schedule attached to the current agreement, there are no job
classifications shown without employees listed after them, and the current listing,
which admittedly contains all of the employees in the unit, except the disputed
is Each of the six semimonthly invoices for 1957, the only invoices in the record for
any period prior to the death of Dr Davis, contains an item, ranging from $3 80 to $9 50,
for the care of the company "Olds" assigned to him, thus indicating that said passenger
car was then being regularly serviced by McKenna as one of the company vehicles.
14 It will be recalled that certain filing requirements of the Act, since repealed, were at
that time in effect
MARIETTA PAINT AND COLOR COMPANY, ETC. 1543
McKenna, contains only 47 names of employees. It is thus clear that the attached
current schedule of classifications lists nine employees less than that of some 9 years
earlier, a decrease in line with figures and contentions of the Respondent elsewhere
discussed about decreasing employment and loss of business. Moreover , this clear
decrease in the number of employees shown on the current schedule , along with the
presence of job classifications on the earlier schedule for which no employees are
listed , casts suspicion on testimony to the effect that the Union has been dealing for
employees only as they have joined it, and hence did not try to represent McKenna
until after he joined the Union in June 1960 . Admittedly , the Union 's recognition
was as exclusive bargaining agent, and I am convinced and find, on all of the evi-
dence, that throughout the Union has bargained , as it was obviously its responsibility
to do , for all of the classifications it believed to be within the unit, regardless of
whether or not some of the employees occupying them were members at the time.
Neither the earlier schedule , nor the current schedule, contains the name of
McKenna, and neither schedule contains any such classification as garage mechanic
or auto mechanic . Both the earlier and the current schedules contain, however, the
classification of "Master Mechanic" and the classification of "Mechanic A," and
the names of employees filling such positions . On both schedules , Everett Swaney,
currently the vice president of the Union , is shown as filling the position of master
mechanic . Swaney, a witness called by the General Counsel , is the working foreman
of the maintenance department , and receives 15 cents extra per hour because of that
fact. Swaney rate, with this extra 15 cents included , was $1.46 an hour as of June 16,
1952. Swaney 's rate, in effect as of May 11 , 1959, was $2.26 , and his current rate,
which went into effect on May 11, 1960 , upon the conclusion of the first year of
the current agreement , is $2 32 per hour. On both the earlier and the current sched-
ules, two individuals are listed as "Mechanic A," Decker and Ritchie.15 Effective
June 16, 1952, Ritchie 's rate was $ 1.22 per hour and that of Decker was $1.34. The
rate in effect on May 11, 1959 , for both Decker and Ritchie, was $ 2.06. Their cur-
rent rate , which went into effect on May 11, 1960, is $2.12 an hour. As will presently
appear more fully, there were frequent contacts between McKenna and the fore-
going three individuals , Swaney, Ritchie , and Decker ; there were some occasions
when McKenna worked along with them ; the General Counsel contends that
Swaney is one of McKenna 's supervisors ; and it was Ritchie who eventually persuaded
McKenna to join the Union . It is noteworthy that, calculated on the basis which
McKenna used , his initial rate of $1.50 an hour was quite favorable , in comparison
with the 1952 rates of all three of those individuals , whose work in the maintenance
department seems to be , more nearly than that of any other employees in the unit,
related to that of McKenna . It is also equally evident that the rates under the current
agreement of all three have now advanced to a point well in excess of the $1 90 an
hour which McKenna, on the basis of his way of calculating his remuneration, was
receiving in June 1960 , and it is obvious from documents in evidence that his semi-
monthly check of $152 had not increased since at least as long ago as March 1957.16
Before proceeding to recent developments , certain additional individuals should
be identified . Just as Weber became general manager in 1958 after Davis' death,
so Edward J. Maas, the present plant superintendent , entered the Respondent's
employ in that capacity in June 1958 , sometime after the death of John Landsittel,
the plant manager during most of McKenna 's tenure, who died sometime before
Davis. As plant manager , Maas is "in charge of the complete production outlay,
shipping , purchasing , stock controls ," and has supervision , through various foremen,
including Working Foreman Swaney, of all of the hourly paid production and main-
tenance employees in the appropriate unit, including truckdrivers , as well as some
excluded laboratory employees . Also involved in relevant management activity is
Forrest G . Conrath , who has been the Respondent 's purchasing agent and traffic
manager since July 1956 , and who has prepared later-discussed reports, with some
assistance from McKenna , pertaining to truck and garage costs and operation.
B. Events surrounding McKenna's termination
On Thursday, June 9, 1960, not quite a month after the effective date of the
above-mentioned midterm increases provided in the agreement for the employees
represented by the Union, Herman McKenna, who had been urged from time to time
to join the Union by its president, Leroy Ritchie, had a conversation in the garage
19 Leroy Ritchie is currently president of the Union He entered the Respondent's em-
ploy in 1951, the year after McKenna started maintaining its trucks
1° It should be borne in mind that, according to Bierschwal's credibly given testimony
with respect to DleXenna, the Respondent "never figured him on an hourly basis," as
McKenna "was to get a set amount" twice each month
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with General Manager Weber about his compensation. McKenna, who took this
matter up directly with Weber, the Respondent's top agent at the Marietta plant,17
told Weber that living costs had gone up so much that he wanted an increase from
$1.90 to $2.25 an hour.18 Weber told McKenna that he was not empowered to
grant any change but that he would take the matter up with his superior in Chicago.
Before the conversation ended, McKenna told Weber that he would like to have
an answer by 9 o'clock the following Monday morning. Weber thereafter tried on
Friday to contact his superior in Chicago, a Mr. Knochel; was unable to locate him;
and informed McKenna of that fact.
The record contains a union "Membership Application and Checkoff Authoriza-
tion" form which bears the signature of McKenna and is dated June 11, 1960.19
McKenna testified that he signed said form when Ritchie, who "had been after [him]
to join the Union" for about 21/2 or 3 years "at different times," came to his home
one afternoon. Ritchie, a welder and maintenance man, has been president of the
Union since June 1959, is a member of its negotiating committee, and formerly was
its vice president. He testified that he secured the signed form from McKenna on
June 14; that he had "started working on him hardest" to get McKenna to join when
he had become vice president in 1957 or 1958; and that after McKenna had signed,
he delivered the authorization form to Samuel Burns, the Union's field representative,
although the usual procedure would have been to "turn it over to our secretary and
he, in turn, would give it to Marie Bierschwal," the above-identified employee in the
accounting department. President Ritchie further testified that he had never, prior
to a meeting some 21/2 weeks later, to which we presently turn, attempted to nego-
tiate with the Respondent for McKenna and that he had never raised any objection
to the fact that McKenna's name had never been placed on seniority lists which have
been posted every 3 months, because he knew that McKenna "wasn't in the bar-
gaining unit." 20
It was apparently Tuesday, June 14, before Weber finally discussed McKenna's
desire for increased remuneration with Knochel, the "Vice President in Charge of
all Paint Division of the American-Marietta Company." Knochel informed Weber
during their telephone conversation that it was "impossible to grant the request"
because the "sales and earning capacity" of the Marietta plant "would not allow
anything at that time." 21 Immediately following the foregoing conversation with
his Chicago superior, Weber reported to McKenna what Knochel had said 22
We come now to a series of crucial events which transpired during about 2i/2 hours
on the afternoon of June 28. These events began around 1 o'clock with a meeting
between the Respondent and the Union, during which a recess of some 20 or 30
minutes occurred around 2 o'clock, and ended about 3:30, with the termination by
the Respondent of its relationship with McKenna.
Of the various individuals involved in the foregoing events, seven, all of whom
have previously been identified, Burns, McKenna, Ritchie, Swaney, Weber, Conrath,
and Maas, were called as witnesses. Their testimony concerning what happened
17 There is nothing to indicate that McKenna broached this subject with either Foreman
Swaney or Superintendent Maas.
is Such an increase in compensation would have increased McKenna's semimonthly
check from $152 to $190. Weber testified that McKenna's requested increase "on an
annualized basis" would have amounted to $700 a year, at a time when the Respondent
was trying to cut costs.
1e This is a standard form, requesting an accepting membership in the Union and
authorizing it to act as bargaining representative It also provides for checking off of
"the amounts provided in the applicable agreement," and the agreement provides for
checking off of monthly dues and initiation fees
20 One of the provisions of the agreement is that the Respondent will "have on file at
all times, a seniority list of all employees and will post such list in a proper place in the
plant" for inspection by union members, and that the Respondent will keep such list re-
vised on a quarterly basis A copy of the seniority list, as of June 1960, containing
names, addresses, and dates of hiring for the 41 employees then in the unit, is in evidence.
Said list does not contain McKenna's name, and I am satisfied, from all of the evidence,
that his name has never appeared on any such seniority list
21I am satisfied, from credibly given testimony of Weber, which is consistent with other
evidence in the record, that the Marietta plant had for some time been experiencing a
decrease in business, which was also reflected in decreasing employment, and that Weber
had been devoting considerable study and effort, with advice and assistance from experts
on the Chicago staff, to trying to reduce costs and increase revenues
22 The evidence is consistent as to the explanation given, McKenna testifying that
Weber informed him that "they were running in the red "
MARIETTA PAINT AND COLOR COMPANY, ETC. 1545
during the progressive stages of the 21/2 hours involved is fairly extensive, and has
been painstakingly analyzed. While as to some phases there are variations and flat
contradictions, it is my considered judgment that they mostly pertain to details which
lend color and context but are not indispensable to determination of the issues, and
that on most crucial matters the substance of the testimony is essentially consistent.
Since to set out the various versions of these successive phases would too greatly
protract this report, I will rather identify the participants involved at each stage and
set out my conclusions as to essentially what happened, with only occasional refer-
ences to the testimony.
The meeting around 1 o'clock on the afternoon of June 28 took place in the recrea-
tion room at the plant. The Respondent was represented by Plant Superintendent
Maas and Purchasing Agent Conrath. The Union, during what was ostensibly a
grievance meeting, was represented by a committee of five, which included Field
Representative Burns, President Ritchie, and Vice President Swaney, with Burns
acting as its spokesman. Some matters of the type usually disposed of during
grievance meetings, which need not concern us, were initially taken up, apparently
with satisfactory progress. When such matters had been completed, Burns told the
representatives of the Respondent that "McKenna would like to be represented by
the Union"; that the Union wanted to "negotiate a classification and wage rate for
McKenna"; and that the Union wanted to "bring him under the terms" of the
agreement, in order to provide the "fringe benefits" thereof for McKenna. At this
point, Burns "laid on the table" the card which McKenna had signed, but it was not
handed to either Maas or Conrath, and neither one of them realized what it was, if
he actually even saw it. Maas at once stated that "McKenna was a contractor"
and that he "was not an employee of the Company." Conrath made essentially the
same assertion as to McKenna's status. Burns expressed the "opinion" that McKenna
was "an employee, the same as the other workers at the plant," and that he was
"eligible to be brought under the terms of the current contract." 23 When Maas
indicated that he did not know about McKenna coming under the terms of the agree-
ment because he was a contractor, Burns requested Maas and Conrath to "get in
contact with someone in authority who could say whether or not Mr. McKenna
was a contractor." They agreed to do so. About this point, President Ritchie asked
if McKenna's work was satisfactory and both Maas and Conrath indicated that it
was. It was by then about time for the employees to use the room for their
"smoke break," and Ritchie called a recess.
During the recess, Maas and Conrath, who had never previously had any intima-
tion that the Union was interested in McKenna, discussed the matter. Maas was
"of the opinion that [McKenna] was a member" of the Union, but Conrath was
not "clear on whether he was or wasn't." 24 Maas and Conrath went then to General
Manager Weber's office and reported to him what had just transpired during their
meeting with the Union. Among other things, they told Weber, as Weber testified,
that Burns "had informed them that Mr. McKenna had asked to be represented
by the union."
Weber, Maas, and Conrath discussed the situation and Weber made a telephone
call to Chicago to consult "with parties who were prepared to advise" him, includ-
ing the Respondent's labor relations consultant. Weber then told Maas and Conrath
that McKenna was "not an employee," that he had never before "claimed union
affiliations," and that as a self-employed individual the Company had no responsi-
bility for bargaining with the Union in regard to McKenna. About halfway through
their discussion, Conrath left. Weber then decided, for what he characterized as
"sound business economic reasons," to terminate McKenna's relationship to the
Respondent. Maas was informed of that decision before he returned to the meet-
ing with the Union.
23 Except for the first quotation, which is from Swaney's testimony, all of the quotations
in the above paragraph are from the testimony of Burns His testimony as to this first
phase is essentially consistent with that of Maas and Conrath, both of whom impressed
me as forthright witnesses. They both convincingly denied having been handed or hav-
ing seen McKenna's authorization card It should be noted that Burns considered
.McKenna a mechanic, within the meaning of either the "Master Mechanic" or the
"Mechanic A" classification of the agreement, and that Burns, who has been servicing the
Union for 3 years, testified that all of the employees in the unit, with the exception of
McKenna, have been members of the Union for all 3 of those years, and that this was
"the first situation that ever came up" during his experience where theie has been "an
employee working at the plant for ten years that never belonged to the organization
24 The above quotations are from credited testimony of Conrath.
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime after 2 o'clock, the recessed meeting between the Respondent and the
Union resumed for a brief period Essentially the Respondent's representatives in-
formed the Union's representatives that they were "no longer willing to discuss"
matters raised with respect to McKenna because "he was a contractor with the
Company," and therefore the Respondent "did not have a right to bargain" with the
Union in respect to him.25 The meeting ended shortly thereafter. I deem it less
likely that it did so with Burns telling Maas and Conrath, as he testified, that "the
Company was in violation of the contract as well as in violation of Federal law,"
than that Burns was evidencing lack of certainty about the situation, as Maas and
Conrath essentially testified.26 In any event, it is clear that the Union, which did
not file its charge until July 7, never thereafter again sought in any manner to
consider directly with the Respondent any aspect of McKenna's case, including his
termination shortly thereafter, a subsequent development which, had the Union
actually considered McKenna an employee within its unit, could have been ap-
proached directly with the Respondent, by insisting on using the grievance machinery
provided in the agreement for the protection of employees within the unit.27
The series of events of June 28 ended about 3 p in., in Weber's office, when
the Respondent terminated its relationship with McKenna. Present were Weber,
Maas, Conrath, and McKenna, who shortly before had been asked by Maas to
come to Weber's office. When the group had assembled, Weber told McKenna that
he had called him in to tell him that "the working arrangement that we had is now
terminated." 28 McKenna asked Weber what "working arrangement" he was talking
about and Weber repeated his original statement. After "this went back and forth
three or four times," as Maas expressed it, McKenna finally asked if what Weber
was telling him was that he was "fired." Weber informed McKenna that he had
not said that he was fired and again stated that "the working arrangement" was
terminated. During this discussion, the Union was not mentioned, and McKenna,
who testified that he "didn't have any reason" in his own mind for what was being
done, did not ask for and was not given any reason for his being terminated. As
credibly testified by Conrath, Weber at one point said to McKenna, "I have never
told you what to do," and McKenna replied, "I didn't expect you to "
The day following McKenna's termination, the Respondent started having its
automotive equipment "handled by a commercial garage at a lesser cost," as Weber
credibly testified, and as is shown by hereinafter-discussed figures in the record for
ensuing months.
C. Contentions and problems; some preliminary conclusions
Initially this case appeared to involve primarily whether Herman McKenna was
an employee in the unit for which the Union was recognized, and, if so, whether
the Union was first obligated to exhaust contract procedures pertaining to him, and
whether the Respondent, in any event, knew of McKenna's union affiliation. But
as the hearing progressed and alternative theories and defenses were advanced,
including the defense that McKenna was terminated for economic reasons, the
picture became more complicated It is the purpose of this section of the report to
summarize the basic contentions and problems eventually presented for considera-
tion, and to state some preliminary conclusions.
Concededly, if McKenna was an independent contractor, rather than an employee,
when the evidence is measured against applicable criteria, there are no remaining
issues and the complaint must be dismissed. But for reasons which subsequently
appear, no such resolution is made. Further, the parties are in agreement that
25 The above quotations are from testimony of Vice President Swaney Maas similarly
testified that the Company 's stated position was that it "would not negotiate his case"
because McKenna was no "a company employee."
-6 The garbled last half of line 6 of Conrath 's testimony at page 458, following his
statement that Burns said that he had "never run into a situation like this ," is corrected
to lead , "He didn ' t know how it would come out."
r The grievance procedure in article V, cited in the Respondent ' s motion to dismiss,
mentioned above, provides for ultimate determination of disputed matters by "an umpire
to be mutually agreed upon ," and that the " decision of the umpire shall be final "
^a The above quotation is from testimony of Maas which is fully corroborated by that of
Weber and Conrath McKenna testified that Weber said that " our contract has terminated
as of now" There was actually no written contract . In my opinion , the foregoing in-
consistency in the testimony is not too significant because it is clear , from all four versions,
that while McKenna ' s relationship was terminated , he was not told that lie was being
discharged
MARIETTA PAINT AND COLOR COMPANY, ETC. 1547
whatever the relationship of McKenna to the Respondent, there has not been suffi-
cient change in its basic nature throughout its 10-year period to have material bearing
on the employee-contractor problem
The General Counsel sees but "one real issue" with which I "must wrestle,"
whether McKenna is an independent contractor or an employee. With that question
settled by finding McKenna an employee, the General Counsel views the remainder
of the case as involving a clear refusal by the Respondent to bargain with the Union
for him, and his discriminatory discharge almost immediately upon the Respondent's
learning of his union affiliation.
Since my ultimate disposition of the issues herein will not turn on the independent-
contractor defense, we will at this point proceed to consider two other defenses,
either of which, if established, would substantially affect other issues. We start
with the question of the Respondent's knowledge of McKenna's union affiliation. It
is true, as earlier found, that McKenna's checkoff authorization was not submitted
through regular channels, and that Maas and Conrath were not handed McKenna's
authorization, but rather were told orally by Burns at the June 28 meeting that
McKenna wanted to be represented by the Union. But they, in turn, conveyed that
information to Weber during the recess called in the meeting. Hence the Respond-
ent had said information, both before it reached its decision to terminate McKenna,
and before it refused to deal with the Union for McKenna at the resumed session.
Moreover, the Respondent did not question Burns' claim of authorization to represent
McKenna, a claim backed by a signed authorization card which Burns had readily
available, if either Maas or Conrath had questioned it. In view of the fact that
McKenna had signed that authorization, it is immaterial whether or not McKenna
thereafter ever actually became a member of the Union. I am satisfied and find
that Burns' oral statement must be considered adequate notice, in the absence of any
challenge thereof, of designation by McKenna, with respect to the 8(a)(5) allega-
tion, and sufficient proof of knowledge on the Respondent's part, with respect to the
8(a) (3) allegation, of McKenna's union affiliation.
We turn next to the defense based upon the admitted lack of compliance by the
Union in McKenna's case with the grievance procedure in the agreement, the bases
of the above-noted motion to dismiss, upon which ruling has been reserved In my
opinion, we do not need to reach certain legal aspects of this problem because the
answer turns on the fact that, whatever McKenna's status as contractor or employee,
he has never been included in the unit for which the Union has been recognized.
Whether or not he could be so included is another problem, which we reserve until
after the nature of McKenna's relationship has been more fully explored. What is
being now found is only that McKenna actually was never in the unit, a fact which
the evidence overwhelmingly establishes, contrary to the allegation of the compliant
that McKenna was "a truck mechanic employed by [Respondent] in said unit."
Among other things, McKenna did not vote in the election in 1951; he and his work
have not appeared on the schedules of positions and employees occupying them,
which have been attached to the successive contracts; his name has never been
listed on the quarterly posted seniority lists; and the Union's president, who finally
persuaded McKenna to join the Union, testified that he knew that McKenna was not
in the bargaining unit.29 Since McKenna never was in the unit and was not covered
by the agreement, facts of which I am satisfied the Union was aware, the Union was
under no obligation to try to use, and naturally did not try to use, the grievance
procedure in its agreement with respect to McKenna. In view of the foregoing, the
Respondent's motion to dismiss on such grounds is without merit, and is hereby
denied.
Let us turn now to alternative positions of the parties about bargaining, since the
original theory of the complaint that McKenna was in the unit is contrary to above-
found facts The General Counsel asserts that the Union's bargaining request with
respect to McKenna "was not a request that the company bargain for a one-man
unit," and he seems to concede also that the Respondent would not be required to
bargain on such a basis; I am convinced that the Respondent would not be.30 The
Similarly Vice President Swaney, the working foreman whom the General Counsel
considers McKenna's supervisor, testified, with respect to McKenna being a member of
the Respondent's "Fire Brigade," an organization adverted to later, of which Swaney is
the chief, that employees outside of the unit, as well as those within the unit, are mem-
bers of said brigade, and that he had assumed, before McKenna "signed up for the Union,"
that McKenna was not in the unit
30 The General Counsel. however, cites cases to show that the fact that the Board "will
not certify it one-man unit" does not mean that such a unit "is inherently inappropriate
under Section 9(a) of the Act" In my opinion, cases recently decided establish con-
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alternative position of the General Counsel, which I am treating, despite some
doubts, as sufficiently litigated to warrant decision thereon, is that if McKenna was
not, as already found, in the bargaining unit, what the Union was trying to do
was to add McKenna to that unit, a position which seems to me compatible with
the above-found facts as to what Burns actually said at the meeting of June 28
However, whether the Respondent was required, under Board holdings with re-
spect to appropriate units, to add McKenna to the existing unit, presents some
problems The Respondent strongly contends it would not be appropriate to add
McKenna to the admittedly appropriate unit of hourly paid production and mainte-
nance employees as the General Counsel would do. But problems related to this
issue can better be understood after we have made a fuller canvass of the ramifica-
tions of McKenna's status. In doing this in the next section of this report, it will
be desirable to keep in mind not only the above-noted employee-contractor dilemma
and the foregoing appropriate unit issue, but also the necessity to determine what
General Manager Weber could reasonably have believed when making his crucial
decisions about McKenna. This is so because, in reaching our ultimate conclusions
in this perplexing case, we must ultimately evaluate the Respondent's motives, in a
situation devoid of any indication of antiunion bias on its part toward a labor
organization with which it has been in contractual relations for some 9 years.
But before turning to the above-stated task, some problems raised in the Respond-
ent's brief, with respect to any remedy which might accompany an order reinstating
McKenna, are too cogent to ignore. Thus the brief asserts that McKenna, who
patently has never been included in any regular employee program or procedure.
"would have to pass a physical examination, fill out insurance and pension forms
and at age 55 his physical condition and coverage under insurance and pension pro-
grams may present problems." In addition, the brief asserts that a "major problem"
which would attend the reinstatement of McKenna "is what seniority would be
assigned him." Thus if McKenna were assigned to the unit, with seniority as of
June 1, 1950, and were classified as a mechanic, he would have 1 year more
seniority than Leroy Ritchie, but less seniority than Decker and Swaney. Hence if
it were found, despite the strongly urged alternative position of the Respondent that
McKenna was terminated for economic reasons, that he should be reinstated, and if
the record would not warrant requiring the Respondent to resume maintaining its
own trucks, an operation which it is now having performed outside at considerable
savings, McKenna's reinstatement could mean the loss of employment to the only
man junior to him in the maintenance department, the Union's president How-
ever, whatever complications such problems might present, either in framing an
appropriate remedy, or at the compliance stage, such problems will not be reached
if my subsequent disposition of the remaining issues proves correct.
D. Further facets of McKenna's relationship to the Respondent
The earlier presented background shows that none of the regular employee pro-
cedures and requirements was followed in bringing McKenna to the plant to repair
vehicles; that he did not put in his time on a clocked basis, like all hourly employees
in the unit; and that his method of remuneration was distinctly different from that
of any employee. Moreover, McKenna never shared such employee benefits as
group insurance or pay for overtime, vacations, or holidays. Nor did McKenna
receive the separation pay given employees, "two weeks pay in lieu of notice."
Throughout the 10-year period under consideration, McKenna did his work on
vehicles in a garage which was made by partitioning off one end of a shed, located
in a corner of the plant grounds, inside of the fence, and near the maintenance
department. This garage was McKenna's own "bailiwick," and he worked there by
himself, except when he received an occasional assist from one of the maintenance
department employees on work too heavy for one man, such as removing a radiator
from a truck, or straightening a truck tailgate. McKenna paid no rent for this
garage, which was furnished free by the Respondent, as were such materials neces-
sary to maintain it as paint. Eventually McKenna was also assigned an adjoining
area large enough to park three trucks, which was marked off and posted to keep it
restricted to trucks to be worked on in the garage. It was up to McKenna to police
that area to see that such things as empty oil drums were not cluttering up the
area intended only for trucks.
elusively that, whatever the parties may have a right to decide to do voluntarily with
respect to McKenna, the Board's interpretation of lie Act does not require that the Re-
spondent bargain for him in a one-man unit See Foreign Car Center, Inc, fornicily
Bob Snead, Inc, 129 NLRB 319: and Al d Dick's Steal, House, Inc, 129 NLRB t207
MARIETTA PAINT AND COLOR COMPANY, ETC. 1549
For the most part, McKenna furnished his own tools and equipment , which in-
cluded his workbench and his vise and numerous small tools. He kept most of his
tools in his own tool chest in his garage , under his own lock and key. No one else
in the plant had access to McKenna 's tools, which he bought and paid for himself.
and which he took home with him after his termination While McKenna had
"most of his own tools, " as Maintenance Foreman Swaney , who has "all the Com-
pany tools under my control ," put it, McKenna "borrowed sledge hammers" and
such other heavy equipment as "a big wrecking bar to straighten truck bumpers,"
and also got "bolts, supplies , screws, nails , and all of those things from us in the
maintenance supply room ." In fact, McKenna carried his own key to the plant
maintenance room, which had been furnished to him by Swaney at the request of
Dr. Davis. McKenna also had his own key to the plant gate nearest to his garage
Thus McKenna , who controlled his own working hours, and might work as little
as 1 hour or as much as 13 hours on a given day , including Saturdays , Sundays, or
holidays, was enabled to enter and to leave the plant at any time and to get supplies
and to borrow tools when he needed them.
Leaving for the moment certain miscellaneous jobs, which McKenna performed
during a minor portion of his time, particularly when Davis was alive , the record
as a whole convinces me that throughout all 10 years , McKenna's primary work,
which consumed a substantial majority of his time , consisted of the general assign-
ment of keeping the Respondent 's vehicles , particularly its trucks, in operating
order "to comply with ICC regulations ." McKenna, who undoubtedly is an expert
auto mechanic , did this work mostly in his garage, and there was no one else in
the Respondent 's employ who had McKenna 's type of specialized mechanical
knowledge . Admittedly neither Manager Weber nor Superintendent Maas, when
they respectively succeeded Davis and Landsittel, had any discussion with McKenna
about how he was to perform his work. Having evaluated numerous bits of evidence
with which this report need not be burdened , it is my considered judgment that no
one in the Respondent 's hierarchy actually exercised any control over the manner
and means by which McKenna accomplished his primary assignment , except that
where required repairs were of a type which McKenna could not make with his
own equipment in his garage , or parts required were particularly expensive, he
would consult management.
The routine way in which McKenna learned what repairs were needed on each
truck was through the regular filing by each truckdriver with him at the end of
each trip of a checklist , upon which each driver indicated what particular repairs
and services he believed were needed. This same procedure has since been fol-
lowed with the commercial garage which has taken over the repairing of those
trucks. It further appears that McKenna would set his own order and time for
repairing trucks, except when he was informed by management that a certain truck
would be needed at a certain time for a certain run, a procedure consistent with an
independent -contractor relationship.
In addition to working in his garage , McKenna went out from time to time to
take care of repairs when trucks would break down out on the road. Some of
such trips entailed considerable time and travel , or work under difficult circum-
stances. But one trip of several days, which McKenna made with Davis to re-
possess a salesman 's car, apparently involved little more than an all-expenses-paid
trip with the head of the plant to Philadelphia to drive the car back to Marietta, all
of McKenna 's time being charged to repairing trucks.
During field trips, all of McKenna 's expenses were reimbursed to him , both living
expenses and expenses involved in making repairs. In fact, McKenna carried one
of the Respondent's regular gasoline credit cards for use on such trips , and he also
was permitted to keep his own car filled with gasoline at all times from the pump
which was a part of his garage setup for servicing vehicles. That such field trips
by McKenna were part of an established operating routine is shown by an inter-
office memorandum , issued by Plant Superintendent Landsittel in 1955, and cap-
tioned "Truck Operating Rules." This one-page memo, of which McKenna received
a copy, sets out seven rules , of which the following involve McKenna. The third
rule requires that the driver "check with McKenna to find out what trucks are in
running order and are okay for use." The fourth rule provides that drivers call
McKenna at the plant or at his home in "the event of breakdown or mechanical
trouble of any kind ," and that they call Landsittel , or in his absence , Weber, to re-
port any other cause for delay. The sixth rule provides that upon "returning from
road trips" drivers report to McKenna "any known truck troubles or troubles that
may be developing with the truck ." McKenna 's testimony shows that when he
received calls from drivers about breakdowns , he would inform someone else at
the plant if the matter was serious , but that he would decide how to handle the
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter, without asking Davis or Landsittel, or during the later period, Weber or
Maas, anything about it.
Whether working in his garage or on a trip, it was McKenna who made the
decision as to what purchases would be necessary to effectuate the proper repair of
vehicles. McKenna then proceeded to make such purchases, except where substantial
amounts were involved, and he chose where to make the purchases, except when the
Respondent had arrangements established with a regular supplier. For instance,
there is a memo in evidence, in Davis' handwriting, and initialed by him, which
McKenna received about 1952, which reads:
Before the purchase of any tires, batteries, or recaps, let me know what our
cost is.
I feel we have an excellent connection in General Tire and have written
Troxel, accordingly 31
There can be no doubt, in my opinion, that while McKenna usually exercised
his judgment in making purchases, he was under some limitations, and "would
consult with management before going ahead" whenever the costs involved "would
run rather high." McKenna was reimbursed for exactly what he paid out in cash
in making small purchases, and larger purchases were paid for directly by the
Respondent. I am satisfied that in no case did McKenna's exercise of sound judg-
ment result in any profit to him, and after reviewing all of the evidence and all of
the contentions, I am also convinced that McKenna, who worked only for the
Respondent during the 10-year period under review, assumed no monetary risks
in repairing the Respondent's vehicles and had no opportunity to reap any profit
from the exercise of good judgment, factors usually found in independent-contractor
relationships.
There was very little paperwork involved on McKenna's part in running his garage.
As earlier noted, invoices for most purchases were sent directly to the Respondent
for payment, small cash purchases being reimbursed in cash directly to McKenna.
The way in which Marie Bierschwal, in the accounting department, prepared the
invoices for McKenna on a semimonthly basis from figures submitted for each
vehicle has earlier been described. The reports earlier mentioned, which were
turned in by the truckdrivers, were on cardboard forms, some 4 by 8 inches, which
were printed on both sides and entitled "Driver's Inspection Report" McKenna
had no clerical work in connection with them, and after he had used them to guide
him in repairing the trucks, they were turned over to Conrath, the purchasing agent
and traffic manager, who was required to prepare detailed reports for the Chicago
offices on a monthly, and on a 3-month basis. A copy of the "Monthly Truck
Report" is in evidence. This is a one-page form, printed on lettersize paper, which
provides space for many details as to the trucks and their operation for the month.
It is obviously a parent company form, to be submitted to the automotive engineering
department in Chicago, with a copy of the traffic department in Chicago. McKenna
penciled in figures in only three, or about 10 percent of the blanks involved, to show
the number of quarts of oil used for the month for all of the trucks; the "amount
of money spent" for the month for repair parts purchased; and the "cost of operat-
ing" the garage for the month, essentially what McKenna himself was paid. Using
the figures thus supplied by McKenna, as rechecked against invoices, and taking
data from other types of reports which were received, Conrath submitted the reports
used by the home office to study trucking costs. Having examined with care the
forms involved and the testimony with respect to them, I am not persuaded that
anything in these forms, or the way in which they were prepared, necessarily estab-
lishes that McKenna was an employee, as it seems to me that an independent con-
tractor, performing the same functions off the company premises with unquestionably
independent arrangements, would have to secure some reports indicating what kind
of repairs were needed, would submit invoices of expenses involved in making
them, and would supply figures needed by the Respondent to present to the home
office which required certain kinds of information on trucking expenses. But it is
clear much was done to make it convenient for McKenna to submit his part of the
necessary figures with little clerical bother to him.
There are other aspects of the garage setup, such as the fact that McKenna kept
an electric razor there with which he shaved whenever he wanted to, which might
be discussed. But I believe that enough has been said to show the essential pattern,
which is quite different from what usually is involved in the long line of Board de-
cisions concerning whether individuals are employees or independent contractors.
3' Apparently Troxel was the head of the engineering department in Chicago The
above memorandum is the only document in evidence issued by Davis and the earlier
quoted 1955 memorandum of Landsittel is the only one issued by him
MARIETTA PAINT AND COLOR COMPANY, ETC. 1551
However, the picture is further complicated by a variety of activities, some of them
of a handyman type, which we will call McKenna's miscellaneous activities McKen-
na's testimony is replete with instances of such activities, most of which occurred
in the period before the death of Davis and Landsittel, and with references to what
Davis in particular directed, instructed, ordered, or told him to do. No purpose
would be served by attempting an exhaustive presentation of the extensive testimony
about such activities, which I am convinced occupied only a minor portion of
McKenna's time prior to Davis' death, and even a considerably lesser portion after
Weber became general manager.32 So what follows will be merely illustrative of
such miscellaneous activities, for which the record usually provides, primarily in the
testimony of Swaney and Ritchie, corroboration of McKenna's testimony as to the
types of things which he did.
A number of McKenna's miscellaneous activities took place at the Davis home,
during normal working hours, and sometimes in association with employees of the
maintenance department, usually Ritchie. Thus McKenna mowed lawns on various
occasions over a number of years. He also trimmed hedges, repaired the lawn-
mower, erected a birdhouse, and "put a snowplow on the head of his little garden
tractor so they could scrape the snow off of their driveway." In addition, McKenna at
one time hung a large mirror, at Mrs. Davis' request. On a number of occasions,
McKenna went out to the Davis home to start various automobiles, including Mrs.
Davis' car and that of their son, as well as the company car which was assigned to
Dr. Davis.
On an occasion about 4 years before his death, Davis told McKenna that he
wanted a little car built for his son and that Ritchie was to help with the welding.
With the wheels and axles which Davis supplied, and Ritchie's help, the car
was built in the garage . Working as they "had an opportunity when he didn't
have anything else to do," as Ritchie explained it, they built what Swaney charac-
terized as a "little scooter type" car which had a gasoline motor "with a chain drive."
In addition, at Christmas time in 1955 and in 1956, McKenna played Santa Claus
for Davis, delivering Christmas presents to "different folks" around town who
were on lists, which Dr. Davis gave him.33
There are a number of additional miscellaneous activities, which the General
Counsel views as contributing to spelling out employee status for McKenna, but are
viewed by the Respondent as neighborly exchanges of assistance, sometimes in
emergencies, or as groupprotection activities, not incompatible with independent-
contractor status.
For instance, Maintenance Foreman Swaney, who had, upon instructions from
Manager Weber, used ties in laying out the earlier-mentioned parking area for three
trucks next to McKenna's garage, an area which McKenna was thereafter expected
to police, and who had "several times" instructed Ritchie to help McKenna "remove
radiators from trucks" because one man cannot "lift them out of there by himself,"
testified credibly that they would ask McKenna "to give us a hand" by holding
"parts in place" while welding or work on them, or in emergencies , such as the time
McKenna "helped save a tank of fluid" by putting friction tape around a pipeline
which had broken during freezing weather.
Swaney also testified about an occasion in April or May 1960, when Weber in-
structed him to assist McKenna in repairing the bed of a truck in order to get it
back into operation. As Swaney credibly testified, having first secured "an okay from
Mr. Maas to buy the lumber for the truck bed," Swaney and "the maintenance boys"
and McKenna worked along together to get the truck bed repaired. Swaney further
testified that one time when they needed help in pouring a slab of concrete in the
storage yard of the plant, McKenna helped them when "he had free time" and
could "get away" from his work in the garage. The evidence also shows that
McKenna was a member of the fire brigade, of which Swaney was the chief, and
. McKenna, who testified that "at times" he had worked less than 40 hours a week and
at other times he "may have worked 60 hours a week," also testified that, in the average
week before Davis' death, he spent 5 to 10 hours a week in such miscellaneous work, but
that since Davis "has been gone, it has been different," and that he has not "had that
much work to do"
as The Respondent's brief refers to the above type of activities as "personal favors done
Dr Davis prior to his death" ; points out that McKenna "never complained or objected to
such tasks for his friend, Dr Davis" ; and asserts that such activities "were not a part of
his contractual agreement" because they ceased upon the death of Davis While it is clear
that no extra compensation was received for any such activities, McKenna got paid for
such work because he distributed all time in the performance of such activities to the
various vehicles being maintained, thus including it in the total of 80 hours which he
showed in his notebook for each of the semimonthly periods
1552 DECISIONS OF NATIONAL LABOR E LATIONS BOARD
that he was regularly assigned to watch gate No. 5, the gate near his garage, when-
ever there were fire drills or they were burning out the varnish stacks, as occurred
from time to time.34 During the period when there was a "truck under a civil de-
fense organization" which the "Government itself owned" and which was stationed
at the plant, McKenna was responsible for keeping that truck, which was used
in connection with the fire brigade, in shape, and Swaney, as he testified, helped
McKenna "at different times warm it up."
Having examined with particular care the relationship between McKenna and
Swaney, I am convinced that Swaney was not, and did not consider himself,
McKenna's supervisor, even assuming that Swaney actually was a supervisor within
the meaning of the Act, a question which is not conclusively settled by the evidence.
In any event, Swaney, the highest-paid hourly employee in the unit, who did not
consider McKenna even within the unit until after he had signed up with the Union,
who did not testify about ordering or directing McKenna to do anything, but
referred rather to asking him "to lend a hand," and who even talked about McKenna
borrowing tools from the maintenance department, cannot be held to have been
McKenna's supervisor. Nor does the evidence warrant such a finding as to Super-
intendent Maas. All angles duly considered, I am of the opinion that the relation-
ship between McKenna and the Respondent has stemmed rather from contact be-
tween McKenna and the general manager, an extensive, friendly, and personal
relationship with Davis, albeit a more formal and less frequent one with Weber. But
it will be remembered that it was to Weber directly that McKenna went when he
sought an increase in his remuneration, shortly before joining the Union.
One further fact about McKenna's miscellaneous activity is worthy of note. How-
ever prevalent his handyman relationship to Dr. Davis may have been, during the
approximately 2 years after Weber became general manager, that aspect of McKenna's
activity was reduced almost to the vanishing point.35 Aside from a few occasions
upon which McKenna worked on the company passenger automobile being used by
Weber, including starting it on a Sunday morning, McKenna repaired the blade of
Weber's power lawnmower once in 1959. On the occasion of that personal service
to the new general manager, Weber brought his lownmower to McKenna at the
garage and also may "have handed him a carton of cigarettes." In any event, I am
satisfied that handy work for the general manager became largely a thing of the past
after Weber succeeded to that position. And granting that while Davis was alive,
McKenna devoted considerable time to such activities, I believe both ,Davis and
McKenna treated such activities as an acceptable way of stepping up McKenna's
maintenance of the Respondent's vehicles, which at Hopkins Pontiac had been con-
siderably less than a full-time job, to something approximating 40 hours a week, the
amount of time for which McKenna testified that Davis guaranteed he would be paid.
E. The employee or independent contractor issue
Painstaking comparison of the various facets of McKenna's relationship, with fac-
tors considered in the long line of Board decisions on such cases, shows that a novel
combination of factors are here in issue. I asked the parties, who evidenced aware-
ness that this case is an unusual one, to try to cite decisions as nearly in point as pos-
sible. But no decisions have been cited or found which I feel are controlling, or are
even nearly enough in point to offer substantial guidance.
In general, it appears, particularly in recent Board decisions involving such mat-
ters, that while factors like risk taken and opportunity to realize a profit are still to be
considered, the primary test is that of "right of control"; that where "the right to
control the manner and means by which the result is to be accomplished" are reserved
to the person for whom the services are performed, the relationship is one of employ-
ment; that where the control reserved is only "as to the result sought," the relationship
is that of independent contractor; but that decision always "depends on the facts of
each case, and that no one factor is determinative." 36
34 This is the fire brigade mentioned earlier herein, of which plant employees, regardless
of whether or not they were in the unit, were members The record contains two docu-
ments which set forth the names and assignments of the members of said brigade Each
shows McKenna as the gateman for gate No 5 The more recent list, for September
1959, contains 56 names , in contrast to the 47 names on the schedule attached to the
Union's agreement, signed a few months earlier.
35 We are here considering only the services performed for the general manager, not
other miscellaneous activities which have been discussed
30 See Lindsay Newspapers, Inc, 130 NLRB 680, from which the above quotations are
taken ; also see San Antonio Light Division, Hearst Consolidated Publications , Inc, 130
NLRB 619, and Clark Oil it Refining Corporation, 129 NLRB 750.
MARIETTA PAINT AND COLOR COMPANY, ETC. 1553
If the foregoing right to control test were accorded predominant weight in the
instant matter, and McKenna 's primary work, that of maintaining the Respondent's
vehicles, were his only work , I am of the opinion that, despite McKenna 's lack of
risk taking, opportunity to make a profit, and written contract, the troublesome rela-
tionship herein would turn out to be that of an independent contractor . This is so
because I am satisfied that, all ramifications of the relationship fairly evaluated, there
actually has been essentially no supervision or control of the "manner and means" by
which McKenna has accomplished "the result sought," that of keeping the Respond-
ent's vehicles in satisfactory operating order, and that the evidence fails to establish
that any material right to control manner or means was reserved by the Respondent.
But apparently because this primary assignment , for which McKenna agreed to
leave Hopkins Pontiac, was consuming substantially less than full time there, Davis
agreed to guarantee McKenna a semimonthly payment of $152, which McKenna
indicated was arrived at by considering his time as a guaranteed 40-hour week at
$1.50 an hour. However, just what the understanding which was entered into more
than 10 years ago between Davis and McKenna really was, and how it actually func-
tioned during the first 8 years, particularly with respect to some of McKenna's
miscellaneous activities , the record leaves in a state of uncertainty.
The foregoing is so not only because death has denied us the testimony of both
Davis and Lindsittel , but because I am satisfied , both by his demeanor on certain
occasions and for reasons shown by the record , which I will not belabor , that Mc-
Kenna was less than candid several times during his testimony . 37 Thus while I am
satisfied , on the basis of a line of Board decisions , of which Chun King Sales, Inc.,
126 NLRB 851, and cases cited therein, are sufficiently illustrative, that it was
proper to receive McKenna's testimony on such matters, despite the Respondent's
earlier-noted objections , I am particularly mindful that such testimony must be
subjected to "the closest scrutiny ," especially where a witness is highly interested
in the result . Upon such close scrutiny , and especially in the light of McKenna's
lack of complete candor, I find it impossible to determine with any degree of pre-
cision, on McKenna's testimony alone, what was the orally expressed intent of the
parties in entering into their relationship in 1950. And the Board has held that the
intent of the parties to create an independent contractor relationship is "a persuasive
reason for resolving a close case " in favor of such intent.38
Moreover , I am unable to accept at face value McKenna's testimony about Davis
directing, instructing, or ordering him -to do certain things with respect to handyman
activities. For since McKenna's truck repair work, which was not itself a full-time
activity, actually decreased over the period of his relationship, as McKenna himself
testified , it is reasonable to infer that McKenna himself may have courted oppor-
tunities to assist the head of the plant, with whom he undoubtedly enjoyed a personal
relationship, in order to reach something approximating 40 hours of work a week.
In any event as I view the total picture , McKenna's problem throughout has been
not one of being engaged in actual work for excessively long hours , but rather one
of rounding out something approximating a 40-hour week , in a situation where
business and employment have been decreasing , with an accompanying decrease in
the necessity for vehicle maintenance. In short, I infer from all of the evidence that
it was really McKenna who had a good thing going , rather than the Respondent, and
that he may well have been doing favors for Davis , and such other miscellaneous
work as was afforded at the plant, in order to keep what must have been a fairly
agreeable situation , where he was essentially his own boss, without any risk being
involved, and without any supervision or clock-punching obligations. I also believe
that McKenna became unsatisfied only after Dr. Davis' death had brought an end
to stepups in his remuneration , with the result that cost -of-living increases and ad-
vances in the pay of plant employees rendered his position less favorable.
In any event, with so many elements of novelty and with so much uncertainty
involved, I have, after much analysis and weighing of alternatives , reached the
decision that it would be better to avoid a definite determination of the close question
now under consideration , if this case can be decided on other grounds , as I believe
that it can , even assuming that McKenna was an employee . Such an approach will
avoid, on the one hand , dismissing the complaint on the ground that McKenna was
an independent contractor , a result which I feel, in view of some aspects of McKenna's
"I One record illustration will suffice . McKenna at first testified that the above - discussed
notebook which he kept contained very accurate records of the time spent on various
vehicles on various days. But McKenna subsequently admitted several times that no
matter what sort of other work he was engaged in, he always charged his time on other
work to one of the vehicles
38 See Eldon Miller, Inc, 107 NLRB 557, 559.
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relationship which point toward employee status, would constitute unfortunate
precedent in an already highly complicated field. On the other hand, it would also
avoid a definitive conclusion at variance with interpretations apparently accepted by
other governmental agencies which have, at least through the time of the hearing,
evidently treated McKenna as not being an employee of the Respondent. Accord-
ingly, without finding whether McKenna was actually an employee or an independent
contractor, and reserving certain other earlier-mentioned questions with respect to
said relationship for subsequent discussion, it will be assumed, in deciding the unfair
labor practice allegations to which we now turn, that McKenna, throughout the
entire 10-year relationship, was an employee of the Respondent, a procedure which I
believe, in the long run and under all of the circumstances, will be fairest to all
concerned.
F. Conclusions as to the alleged unfair labor practices
We come now to what remains of the earlier-stated alternative theories as to the
discharge and the refusal to bargain. It should be remembered that there is no
independent 8(a)(1) allegation in the complaint, and that there is nothing in the
record showing any antiunion attitude on the part of the Respondent, which entered
into its 9-year bargaining relationship without the Union having a Board certification.
Moreover, I believe that the above-found facts, both as to the relationship itself,
especially during the 2 years after Weber became general manager, and as to what
the representatives of the Respondent said and did during the crucial developments
in June 1960, taken as a whole, compel the conclusion that, even though we are
now assuming that McKenna was actually an employee, the Respondent's decisions
and actions here in issue were guided by an honest and reasonable belief that
McKenna was an independent contractor.
Having previously determined that McKenna was not in the established bargaining
unit and that alleged refusal to bargain on that ground must fail, we will consider
next whether the Respondent was under any obligation to add McKenna to the
appropriate unit, as essentially sought by the Union on June 28, 1960. I am con-
vinced that our answer to that question must be a negative one. In the first place,
even granting that McKenna's miscellaneous activities were such as are performed
by employees in the unit, and ignoring for the moment all differences in his conditions
of employment, it is my considered judgment that such activities, especially during
his last 2 years at the plant, constituted entirely too small a proportion of his work
to warrant adding McKenna to the unit as a part-time employee on the basis of
such activities. But even if, contrary to my opinion, a case could be made for
McKenna's inclusion on such a basis under some earlier Board decisions, the Board
decided, on January 5, 1961, in Denver-Colorado Springs-Pueblo Motor Way, 129
NLRB 1184, in which previous decisions to the contrary were overruled, that it will:
. . . henceforth apply for purposes of unit placement and voting eligibility only
one test, namely whether an employee sought to be included in a proposed unit
is primarily engaged in, and spends the major portion of his time, i.e., more
than 50 percent of his time, performing tasks or duties alike or similar to the
ones performed by the other employees in the requested unit.
In the light of the foregoing, the Respondent is presently under no obligation to
add McKenna to the appropriate unit on the basis of his miscellaneous activities,
which clearly took up a minor portion of his time, and no remedy could not issue
requiring that it do so.
Directing our attention to McKenna's major type of activity, repairing motor
vehicles, I am convinced that, under all of the circumstances of this case, this major
activity does not afford a basis for requiring that the Respondent add McKenna to
the appropriate unit, whatever may have been permissible had the Respondent and
the Union chosen to agree on such a procedure. Clearly there are no employees
in the unit who perform duties which are essentially like or similar to those per-
formed by McKenna in his garage , particularly when all of his conditions are
taken into consideration. Hence, even though under appropriate circumstances
automobile mechanics may be included in units of production and maintenence
employees, the totality of circumstances earlier described pertaining to McKenna
sets him too completely apart from the supervised, hourly paid, clock-punching
employees in the appropriate unit for any such inclusion . And this wide gap be-
tween McKenna and the employees in the unit as to essentially all conditions of
employment had prevailed throughout some 9 years of bargaining history when
the Union, shortly after mid-term of its current 2-year agreement, sought to add
McKenna to the unit covered therein and to extend its terms to him. In my judgment,
the Respondent was under no obligation to add McKenna to the unit on June 28,
1960. Accordingly, I find that its refusal to discuss doing so, even for an erroneous
MARIETTA PAINT AND COLOR COMPANY, ETC . 1555
reason, did not constitute refusal to bargain. Hence it will be recommended that
such allegation of the complaint be dismissed.
Remaining for determination is whether McKenna was terminated because of his
union affiliation, as the General Counsel contends, or for "sound business economic
reasons," as General Manager Weber testified and as the Respondent contends.
While this issue is not free from elements of doubt, it is my carefully considered
opinion that the weight of the credible evidence preponderates in favor of the
Respondent's position.
As already noted, McKenna's vehicle maintenance has never constituted a full-time
job, but has been pieced out with miscellaneous activities, which have nevertheless
been charged to automotive maintenance. Whatever reasons Davis may have had
for setting up what must be viewed, on a record made without the possibility of
getting any explanation from Davis, as an inherently deceptive procedure from a
cost-accounting standpoint, the fact remains that the arrangement which Davis en-
tered into with McKenna was honored by Weber, when he became general manager,
even though the Respondent was in a period of declining business and employ-
ment,39 and even though Weber was exerting himself to reduce costs, with the as-
sistance and advice of experts in the Chicago office.
Weber testified that along with its study of cost factors, the Respondent had
been studying the possibility of terminating McKenna's relationship "for some time,"
possibly for "even a year." Since the Respondent's cost studies must have raised
questions about that relationship, which not only involved deceptive accounting but
was, I am persuaded, not an economically sound one, as subsequent costs of having
She work done outside have demonstrated,40 I find no difficulty in crediting the
above-noted testimony of Weber. In fact, the part of Weber's testimony about
McKenna's termination which I cannot accept is that essentially denying Weber's
realization that McKenna was securing the same amount every half month, charged
to automotive repairs, regardless of what McKenna did or how much or how little
work he performed. But this goes to the same question of deceptive bookkeeping,
about which, as above noted, McKenna also was lacking in candor, and about
which I believe Bierschwal was forthright. However, the fact that Weber, possibly
because of loyalty to his predecessor with whom he had been associated for so
many years, did not admit what I feel confident he must have known, along
with Bierschwal, Conrath, and Maas, that the method which Davis apparently
had instituted for calculating McKenna's remuneration was deceptive, does not
mean that I should ignore aspects of Weber's testimony which were convincing.
In any event, I believe that Weber had had McKenna's working arrangement
under scrutiny for some time before McKenna asked for increased remuneration
in June 1960. But Weber, with many problems on his hands, had not got around
to making up his mind whether or not to do anything about it. Moreover, even
after consultation with his superior in Chicago about the middle of June concerning
McKenna's request, when McKenna at first seemed to accept the decision that it was
impossible to grant any increased remuneration because of the Respondent's financial
condition, Weber evidently was still not ready to disturb what he honestly believed
was an independent contractor relationship established some 10 years earlier by
Davis. But when, on June 28, it became quite apparent that McKenna himself
was not satisfied to continue that relationship unchanged, Weber decided, after con-
sultation with Chicago personnel, including the Respondent's labor relations con-
sultant, to terminate it. And I am satisfied that he believed he had every legal right
to do so.
It is my considered judgment that it was merely a coincidence that McKenna's
unwillingness to continue to accept his long-established relationship was made
29 In 1957, total employment ran about 85 to 88, with some 44 or 45 employees in the
unit. But by 1960, total employment at the Marietta plant bad dropped to about 79 or
80, with only about 39 production and maintenance employees. Moreover, no new em-
ployee has been hired since 1957.
40 Figures in evidence show that truck maintenance for June 1960, McKenna's last
month at such work, amounted to $322 15 ; that for the following month of July, Stowe
Truck & Equipment Co., a commercial concern in Marietta now being used for essentially
comparable truck maintenance, was paid $245 86, of which $103 18 was for a non-
recurring" item, "a new clutch and transmission overhaul" ; and that the bills rendered
by the foregoing concern for truck repair work during August and September 1960, when
one or two less trucks were being serviced, respectively were $124 81 and $121 03 It will
be remembered that the two semimonthly payments to McKenna alone came to $304, and
that all parts and any large repair work which had to be done outside his garage con-
stituted additional costs
641795-63-vol. 136-99
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manifest to Weber through the Union 's attempt of June 28 to represent McKenna.
For I am persuaded that had McKenna himself sought directly to change that re-
lationship , after the Respondent's decision of some 2 weeks earlier had been con-
veyed to him by Weber, reluctance to discontinue what Davis had initiated would
just as readily have been dissipated , without the presence of any union in the
picture at all.
In short, since there is not a scintilla of evidence as to any antiunion sentiment
on the part of any representative of the Respondent 's management , and since there
is nothing in the record to indicate that Weber would have had any reason for trying
to discourage membership in labor organization of which all of the employees in
the admitted appropriate unit covered by the current agreement had for years been
members, I do not see how the coincidence of timing alone can justify holding that
the Respondent was motivated in terminating McKenna by his union affiliation. This
is especially so since I am convinced that Weber honestly believed that McKenna
was not an employee , and that the Union's request merely served to demonstrate
McKenna's unwillingness to continue a relationship which the Respondent itself had
for some time been considering discontinuing for "sound business economic reasons."
In any event , I am not satisfied that the General Counsel has sustained his burden
of proving that McKenna 's discharge was caused by his union affiliation .41 Accord-
ingly , it will be recommended below that the allegations of the complaint as to
McKenna's discharge 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 engaged in unfair labor practices within the meaning
of Section 8(a)(I), (3 ), and (5 ) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the complaint herein be dismissed in its entirety.
-Compare Community Shops, Inc ., 130 NLRB 1522, and cases cited therein. In the
instant matter there are no such surrounding circumstances as would render the Respond-
ent's action illegal because an illegal result must be assumed to have been intended.
Local 69, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL-CIO and Robert Levine and Plumbing
and Heating Employers Association of Hudson and Bergen
Counties, N.J., Parties to the Contract . Case No. 22-CB-417.
Api'il 26, 1962
DECISION AND ORDER
On December 29, 1961, Trial Examiner Lloyd R. Fraker issued his
Intermediate Report herein, finding that the Respondent had engaged
in unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs.
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 McCulloch and Members Rodgers and Leedom.]
136 NLRB No. 141.