Hammond v. James W. Griffin Co., Inc.

• Decision Date: 17 August 1981
• Docket Number: Civ. A. No. C77-1947A.
• Citation: 520 F. Supp. 162
• Parties: Reese HAMMOND, et al. v. JAMES W. GRIFFIN COMPANY, INC. and James W. Griffin.
• Court: U.S. District Court — Northern District of Georgia

520 F. Supp. 162

Reese HAMMOND, et al. v. JAMES W. GRIFFIN COMPANY, INC. and James W. Griffin.

Civ. A. No. C77-1947A.

United States District Court, N. D. Georgia, Atlanta Division.

August 17, 1981.

Bernard M. Baum and Louis E. Sigman, Chicago, Ill., James T. Langford of Jacobs & Langford, Atlanta, Ga., for plaintiff.

Victor A. Cavanaugh and Mary E. Mann, of Swift, Currie, McGhee & Hiers, Atlanta, Ga., for defendants.

ORDER

NEWELL EDENFIELD, District Judge.

This action under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and the Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. § 1132, is before the court on the special master's report and on plaintiffs' motion to adopt that report.

The facts in this case are set out extensively in the special master's report. Since no party objects to those findings,¹ and since after examination of the record, the report, and the briefs the court concludes that the findings are not clearly erroneous, the court ADOPTS the master's findings of fact. Rule 53(e)(2), Fed.R.Civ.P.; NLRB v. Bancroft Mfg. Co., 635 F.2d 492, 494 (5th Cir. 1981), cert. denied sub nom. Craft Metals, Inc. v. NLRB, ___ U.S. ___, 101 S.Ct. 3053, 69 L.Ed.2d 421, 107 LRRM 2632 (1981); NLRB v. J. P. Stevens & Co., 538 F.2d 1152, 1160 (5th Cir. 1976).

Defendants object to three of the special master's conclusions of law:

1. The special master's conclusion of law that Melvin Verdis Atkinson is an employee of defendants, rather than an independent contractor;

2. The special master's conclusion of law that plaintiffs are entitled to liquidated damages and interest; and

3. The special master's conclusion of law that plaintiffs are entitled to an award of attorney's fees.

Employee/Independent Contractor

James W. Griffin and James W. Griffin Company, Inc. (Griffin) entered into a collective bargaining agreement with Local 926, International Union of Operating Engineers. A part of that collective bargaining agreement bound Griffin to make contributions to plaintiff trustees on behalf of all operating engineers Griffin employed for all hours they worked that were covered by the agreement. Special Master's Report, pp. 1-2 (hereinafter designated as SMR).

Defendants' first objection centers on the special master's determination that Atkinson was an employee of defendants at all times relevant to this action, and not an independent contractor. Based upon that determination, the master concluded that defendants are liable for contributions to the fringe benefit trusts at the prevailing rate for all hours Atkinson worked (SMR 9). Because defendants considered Atkinson an independent contractor not covered by the collective bargaining agreement, defendants had made no contributions on his behalf.

The special master relied upon common-law agency principles in making his determination on this issue. Defendants agree with that reliance, but disagree with the special master's ultimate conclusion that Atkinson was an employee. The court also agrees that the common law of agency must determine this issue. See NLRB v. United Insurance Co. of America, 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); Ward v. Atlantic Coast Line R. R., 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960) (relying on the Restatement of Agency 2d); SMR 10 n.3.

As the Supreme Court has stated:

There are innumerable situations which arise in the common law where it is difficult to say whether a particular individual is an employee or an independent contractor .... In such a situation as this there is no shorthand formula or magic phrase that can be applied to find the answer, but all of the incidents of the relationship must be assessed and weighed with no one factor being decisive. What is important is that the total factual context is assessed in light of the pertinent common-law agency principles.

NLRB v. United Insurance Co. of America, 390 U.S. at 258, 88 S.Ct. at 990-91.

After examining the factors the special master relied upon, the facts defendants offer in opposition to his finding, and pertinent authority, the court is convinced that the special master's conclusion that Atkinson was an employee is correct.

In reaching that conclusion, the special master relied upon the following:

1. Defendants "had almost sole discretion over the jobs on which Atkinson worked."

2. "Atkinson was not in a separate business or occupation but instead was engaged in the performance of the principal business activity of his employer."

3. Defendants supply the tools, office and supporting business structure for Atkinson, and the only place of business for defendants and Atkinson is Griffin's home.

4. The relationship between Atkinson and defendants is of long duration, and virtually exclusive of other employment by Atkinson.

5. Even though Atkinson's work requires a great deal of skill, and the level at which he is working within his craft indicates that he might be expected to work with a minimum degree of supervision, Griffin did exercise some supervision over Atkinson's work within his craft. Furthermore, "there is no evidence that Atkinson possessed the additional skills necessary to operate the business of providing tractor operators for the construction trades."

6. Atkinson was "totally dependent upon Griffin" in regard to such concerns as bookkeeping, billing, tax returns, unemployment and worker's compensation and work scheduling.

7. Atkinson's pay was computed based on hours of labor, "and, unlike the true independent contractor which Griffin occasionally utilized, Atkinson did not have to bear any risk of collection from the customer."

(SMR 10-11.)

Under formulations set out by both the federal and Georgia courts, the court has no difficulty characterizing Atkinson as an employee. In Hayes v. Morse, 474 F.2d 1265, 1266 (8th Cir. 1973), the court stated: "The essential characteristics of master and servant relation is the retention by the employer of the right to direct and control the manner in which the work shall be performed." (Emphasis in original.) The Georgia Supreme Court has held that:

The test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.

Fidelity & Casualty Co. of New York v. Windham, 209 Ga. 592, 593, 74 S.E.2d 835 (1953). The facts found by the special master certainly place Atkinson's employment within the scope of that test.

An examination of factors relied upon in similar cases supports this court's acceptance of the special master's conclusion. In NLRB v. United Insurance, 390 U.S. at 258-59, 88 S.Ct. at 990-91, some of the "decisive factors" the Supreme Court used to find the company's "debit agents" to be employees were:

The agents do not operate their own independent businesses, but perform functions that are an essential part of the company's normal operations; ... they do business in the company's name with considerable assistance and guidance from the company and its managerial personnel ... and the agents have a permanent working arrangement with the company under which they may continue as long as their performance is satisfactory.

The recent case of Richardson v. Central States, Southeast & Southwest Areas Pension Fund, 645 F.2d 660 (8th Cir. 1981) —also an ERISA case — held a truck driver an employee rather than an independent contractor of a van company for the purpose of determining his eligibility for pension benefits. The court relied, inter alia, on the following: "While Richardson owned the tractor unit, it was licensed to the Company and bore the Company's colors ... and the company controlled assignments, booked shipments and collected payments" for Richardson. Id. at 662.

In contrast, in Wardle v. Central States, Southeast & Southwest Areas Pension Fund, 627 F.2d 820 (7th Cir. 1980), cert. den. 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981), another ERISA case, the court held that a pension fund's finding that Wardle was an independent contractor "was not arbitrary or capricious or erroneous as a matter of law," id. at 826, based on the following factors:

1. "Wardle purchased his tractor without any assistance from one of the purported employers in the case."² Id. (emphasis added).

2. "Wardle was paid on the basis not of time worked but of mileage and revenue." Id.

3. "Lovelace did not withhold Federal income tax or Social Security taxes on Wardle's behalf." Id. at 826-27.

4. "Wardle made worker's compensation and unemployment contributions himself." Id. at 827.

Comparing the facts of Wardle with those here supports the special master's conclusion on this point. The special master found (Finding of Fact XIV), that "Griffin deducts withholding tax and Social Security from Atkinson's wages as though he were an employee," that he "pays the workmen's compensation on Atkinson and also carries the liability insurance," and that he "also pays in on the unemployment compensation." (SMR 6.)

Defendants' argument contesting the special master's conclusion merely offers other facts that defendants believe justify characterizing Atkinson as an independent contractor. Although the court notes that many of these elements are relevant to the master's conclusion, the court finds that, on balance, these factors do not tip the scales in defendants' favor. These factors may well show that Atkinson's position "falls between pure employee and pure independent contractor status," Wardle v. Central States, Southeast & Southwest Areas Pension Fund, 627 F.2d at 826. They do not, however, persuade the court that the special master's finding "is not the truth and right of the case." General Plywood Corp....