Taylor v. Local No. 7, Inter. U. of Journeymen Horseshoers, 9310.

• Decision Date: 05 November 1965
• Docket Number: No. 9310.,9310.
• Citation: 353 F.2d 593
• Parties: A. Irwin TAYLOR, Carl F. Chapman, William Edmiston, James P. Simpson, Glenn C. Smith, and Harry S. Eklof, Appellants, v. LOCAL NO. 7, INTERNATIONAL UNION OF JOURNEYMEN HORSESHOERS OF the UNITED STATES AND CANADA (AFL-CIO), an unincorporated association, Raymond P. Benton, John J. Meehan, John H. Bosley and Robert E. Wheeler, and International Union of Journeymen Horseshoers of the United States and Canada (AFL-CIO), an unincorporated association, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

353 F.2d 593 (1965)

A. Irwin TAYLOR, Carl F. Chapman, William Edmiston, James P. Simpson, Glenn C. Smith, and Harry S. Eklof, Appellants, v. LOCAL NO. 7, INTERNATIONAL UNION OF JOURNEYMEN HORSESHOERS OF the UNITED STATES AND CANADA (AFL-CIO), an unincorporated association, Raymond P. Benton, John J. Meehan, John H. Bosley and Robert E. Wheeler, and International Union of Journeymen Horseshoers of the United States and Canada (AFL-CIO), an unincorporated association, Appellees.

No. 9310.

United States Court of Appeals Fourth Circuit.

Argued April 5, 1965.

Decided November 5, 1965.

H. Raymond Cluster, Baltimore, Md. (Cook & Cluster, Baltimore, Md., on brief), for appellants.

Bernard W. Rubenstein (Jacob J. Edelman and Marshall A. Levin, Baltimore, Md., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.

BOREMAN, Circuit Judge:

These two cases were consolidated for disposition below and on this appeal. Plaintiffs are six trainers or owners of thoroughbred race horses who race their horses at Pimlico, Bowie and Laurel flat tracks in Maryland and elsewhere in the United States and Canada. Three of the plaintiffs are residents of Canada.

The first action was instituted against Local No. 7, International Union of Journeymen Horseshoers of the United States and Canada (AFL-CIO) and certain of its individual members. The second action was instituted against the International Union of Journeymen Horseshoers of the United States and Canada (AFL-CIO). In both complaints the plaintiffs alleged that the defendants were engaged in a group boycott and price fixing in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1 and 2, and sections 4 and 16 of the Clayton Act, 15 U.S.C.A. §§ 15 and 26. Plaintiffs sought relief by way of permanent injunction, declaratory judgment and money damages.

In November 1963 the District Court, after taking evidence and after considering briefs and oral argument, entered a final order dismissing the complaints.¹ The court found that the alleged boycott and price fixing were per se violations of the Sherman Act, but held that the defendants were exempt from federal antitrust laws under sections 6 and 20 of the Clayton Act, 15 U.S.C.A. §§ 17 and 29 U.S.C.A. § 52, respectively, and that it lacked jurisdiction to grant the relief requested under provisions of the Norris-LaGuardia Act, 29 U.S.C.A. §§ 101 and 113, as the case involved a "labor dispute." In determining that the cases involved a "labor dispute" within the meaning of the Norris-LaGuardia Act, the court concluded as a matter of law that the horseshoers (hereinafter sometimes referred to as "farriers") who performed services for the plaintiffs were "employees" and not independent contractors.

Plaintiffs contend that the evidence did not support the District Court's conclusion but showed that the farriers were independent contractors and, as such, were not exempt from antitrust laws. Defendants on the other hand argue that the District Court was correct in its findings and conclusions; further, even if the farriers were independent contractors rather than employees, the cases still involve a "labor dispute" within the meaning of section 13 of the Norris-LaGuardia Act, 29 U.S.C.A. § 113. The latter question was not decided by the District Court in view of its determination that the farriers were "employees."

As trainers or owners of race horses the plaintiffs travel the racing circuit, going from track to track. Defendants, as horseshoers of thoroughbred race horses, often follow the same circuit. Consequently, the owners and trainers avail themselves of the services of several members of the defendant union.

The present controversy arose while plaintiffs were racing their horses at Bowie, Maryland. The three Canadian plaintiffs had used a nonunion member to shoe their horses in Canada. When plaintiffs arrived at Bowie, the farriers there refused to shoe any horses for them unless they signed an agreement to use only union members regardless of where the horses raced, either in the United States or Canada. The refusal by Local No. 7 to serve the Canadians was required by the International. The second question as to price fixing affected all the plaintiffs. Local No. 7 charged a minimum fee of $16 at Bowie for shoeing a race horse. This fee was set by the Local and any member who charged less than the minimum was subject to disciplinary action or possible expulsion by the union. The plaintiffs, as a result of the boycott and price fixing, instituted the present actions.

Defendants do not assert here that the boycotting and price fixing were not violations of the Sherman Act. The questions to be resolved by this court are whether there was substantial evidence to support the District Court's determination that the farriers were "employees" rather than independent contractors and whether an employer-employee relationship, as distinguished from that of employer-independent contractor, is necessary to constitute a "labor dispute" within the meaning of section 13 of the Norris-LaGuardia Act, 29 U.S.C.A. § 113.

The usual test employed for determining whether one performing services for another is an independent contractor or an employee is found in the nature and the amount of control reserved by the person for whom the work is done. The rule was clearly enunciated in Singer Manufacturing Co. v. Rahn, 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440 (1889). The Court at page 523, 10 S.Ct. at page 176 stated:

"* * * The relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished. * * *."

Complete control over the result to be accomplished is not enough to make an independent contractor an employee. As stated in National Labor Relations Board v. Steinberg, 182 F.2d 850, 856-857 (5 Cir. 1950):

"* * * an employer has a right to exercise such control over an independent contractor as is necessary to secure the performance of the contract according to its terms, in order to accomplish the results contemplated by the parties in making the contract, without thereby creating such contractor an employee."

Even some reservation of control to supervise the manner in which the work is done, or to inspect the work during its performance does not destroy the independent contractor relationship where the contractor is not deprived of his judgment in the execution of his duties. Conasauga River Lumber Company v. Wade, 221 F.2d 312 (6 Cir. 1955), cert. denied 350 U.S. 949, 76 S.Ct. 324, 100 L.Ed. 827. The determination as to whether or not sufficient control has been retained rests upon the peculiar facts of each case and no one fact is controlling; the "totality of the circumstances must be considered." N. L. R. B. v. A. S. Abell Co., 327 F.2d 1, 5 (4 Cir. 1964).

The District Court recited certain facts upon which it based its conclusions with respect to the relationship between the owners and trainers and the farriers who served them. However, we think it necessary to consider the relevant attendant circumstances in their totality as clearly disclosed by the record. As this court stated in N. L. R. B. v. A. S. Abell Company, supra, 327 F.2d 1, 4 (4 Cir. 1964), a case which arose under the National Labor Relations Act:

"* * * Thus, the critical distinction between an independent contractor and an employee is found in the nature and amount of control reserved by the person for whom the work is done. The test, however, admits much more readily of statement than of application. Resolution of the question must depend largely upon the peculiar facts of each case. Moreover, no single factor is controlling and the totality of the circumstances must be considered." (Emphasis supplied.)

In its opinion (222 F.Supp. 812, at 817-818), the District Court, in considering evidence of the present day relationship between farriers and trainers, deemed it helpful to refer to the original chartering of the defendant International Union in 1874, its growth to peak membership of 2500, the tremendous loss of members as the use of the horse for transportation ceased, the end of the public horseshoeing shop, the growth of racing of thoroughbred horses, the revived demand for farrier services and so on. At page 818 (after pointing out that there has arisen the so-called public trainer who, for a fee, will train and race horses of owners who own a small number of horses) the court below said:

"* * * As a result, there are at the present time only fifteen to twenty horseshoers employed by private stables on a full time salary basis — the remainder, insofar as thoroughbred racing is concerned, perform their services on a piece-work basis for a public trainer for the account of the owners whose horses he is training and racing."

The principal factual grounds relied upon by the court below to support its conclusions are (1) the right of the trainers to control the farriers' working time; (2) the right of the trainers to control each step of the horseshoeing process; (3) the continuing services the farrier is called upon to render between shoeings; and (4) the fact that "the relationship, however denominated, between most trainers or owners and most farriers is a continuing one of indefinite duration and not sporadic and occasional." But we are persuaded from our examination of the testimony and the whole record that the court ignored other factors clearly appearing which are entitled to consideration in determining the employee or independent contractor status of the farriers.

The finding that the trainers control the working time of the farrier is, in our opinion, not supported by the record. The evidence is clear that the farriers do not work regular hours set by the trainers but work at their own convenience. At the start of a race meet, the trainer goes to...