manner he chose and from whatever customers he selected, and respondent did not direct or control petitioner in regard to what customers he should solicit, or as to the time, place or manner of such solicitation. Petitioner determined his own hours and plan of work, his own schedules, sales routes and itineraries. Orders were solicited on open account and were subject to refusal by respondent. Petitioner was not required to, nor did he, spend full time or any particular time in the sale work of respondent's products covered by the two contracts, and petitioner determined the amount of time he would spend on such work, and the amount of time he would spend on the work of the other manufacturers which he then represented.
14. Respondent's office was not petitioner's headquarters, and he visited respondent's office whenever it was convenient for him to do so, and such visits as were made were on a voluntary basis and not at the request of the respondent. Petitioner was not required to attend any regular or schedules sales meetings of respondent, and no sales quota was imposed upon him by respondent.
15. Commencing in the spring of 1942, the respondent became engaged in war work and during July, August, and September, 1942, cancelled all agency because of the scarcity or non-availability of materials, particularly windows.
16. In 1943 respondent had formulated a post war planning program, having for its object, after the end of hostilities, increased tonnage and the streamlining of sales and changes in methods of selling; that such program included the establishment of a branch office in Washington, D.C. This branch office covers the same territory as that previously covered by the contracts with petitioner, with the exception of the state of Tennessee. In addition, the territory of such branch office also embraces the states of Maryland, all of Virginia, Delaware and the District of Columbia. Such office was established in 1943, and the branch manager thereof operated for a time from a local hotel due to the inability of respondent to locate an office in the District of Columbia; that respondent eventually located offices and signed a lease therefor for three years with an option for two additional years and moved into and occupied said premises on or about December 20, 1945, where it conducts its business in the territory aforesaid. That said office is in charge of a branch sales manager who is paid on a salary basis by respondent, and all of the expenses of such office, including the rents, supplies, telephone, salaries of employees, are paid by respondent and all of the activities thereof and the employees therein, including the manager, are under the direction and control of respondent; that such branch office handles all of the products of respondent as contrasted to the limited number covered by the contracts with petitioner; that all sales in the territory are under the supervision and control of the branch manager in the Washington office, and said manager is charged with the duty and responsibility of promoting the sale of all of respondent's products in said territory; that when petitioner was sales agent for respondent, the estimates were sent to respondent's home office in Chicago, where such estimates were priced and sent back to the agent. If respondent were the successful bidder, plans would be obtained by the agent and sent to Chicago, where the respondent's engineers analyzed and checked said plans, and all bills were sent from Chicago. Under respondent's present operations, the pricing of estimates, the checking of plans by engineers, and all correspondence are carried on by employees in the Washington branch office, and all bills are sent from that office.
17. Respondent operates in 26 states of the Union, and in its entire organization it did not have, nor does it now have, any contracts similar to the contracts which it had with petitioner, and respondent does not now have available in its organization any position similar to the one occupied by petitioner herein. The court furthermore finds that it would not be possible, under respondent's present organizational set-up, to have t,e petitioner act as sales representative, handling only a comparatively few of respondent's products on a part time basis, when it has an office with its own employees who are subject to its direction and control, handling all of the respondent's products and doing all of the work previously performed by petitioner in the territory specified in petitioner's contracts, and that it would be unreasonable to require respondent to restore petitioner as prayed in his complaint.
Based upon the foregoing findings of fact, the Court makes the following conclusions of law:
Conclusions of Law.
1. The Court has jurisdiction of the subject matter of this suit under Sec. 8(e) of the Selective Service and Training Act of 1940, as amended, 50 U.S.C.Appendix, § 308(e).
2. The contractual status of petitioner was that of an independent contractor and as such, petitioner is outside the scope of the provisions of Sec. 308 of the Selective Training and Service Act of 1940, as amended. Petitioner has failed to show that prior to his induction in the United States Army, he held a position in the employ of the respondent company, and therefore, his petition must be denied.
3. That even if petitioner were to be treated as an employee of respondent, the circumstances of respondent have so changed since July 20, 1942, and prior to December 31, 1945, as to make it unreasonable for respondent company to reinstate petitioner, and respondent was and is now fully justified in refusing to reinstate petitioner.
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