Senftner Volkswagen, Porsche-Audi, Mazda

National Labor Relations Board - Board Decisions

Dec 10, 1984

273 N.L.R.B. 166 (N.L.R.B. 1984)

166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Senftner Volkswagen, - POrsche-Audi, Mazda and
Local Lodge 1426; International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 18-CA-7666
10 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 September 1983 Administrative Law
Judge James L. Rose issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed limited cross-
exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that employee Rudolph
DeLeon held a bargaining unit position in his day-
time job as automobile preparer and reconditioner,
and treated him as an independent contractor with
respect to his "after hours" contract for janitorial
services at the Respondent's automobile dealer-
ship: 1 He found that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by virtue of Sales
Manager Glaza's termination of DeLeon's janitorial
duties on 12 February 1982 because the bargaining
unit majority voted that day for union representa-
tion in a Board-conducted election.2
We affirm the judge's finding of an 8(a)(3) viola-
tion. 3 Here, the same individual worked for his em-
ployer in a dual capacity as an employee and inde-
pendent contractor. Because it is impossible to sep-
arate DeLeon's employee status from his independ-
It is unclear whether the Judge actually made a finding that De-
Leon's Janitorial work was performed as an Independent contractor The
Judge, however, did analyze the case as if he had Independent contractor
status Of course, if DeLeon's Janitorial work was part of his employee
duties, the 8(a)(1) and (3) violation is obvious
2 DeLeon testified that Glaza explained to him 12 February that Mrs
Senftner "didn't want anyone who was a nonmanagement employee to
have keys to the place" and that "you guys voting for the union, that
was the clincher" Glaza testified that he said, "Rudy, this isn't because
of the election, this is just the straw that broke the camel's back" The
Judge concluded that both Glaza's and DeLeon's versions of their con-
versation reveal that the employees' vote was the determinative reason
for the Respondent's decision to eliminate DeLeon's independent con-
tractor services
3 , In light of this finding, Member Hunter finds it unnecessary to pass
on the question of whether the termination of DeLeon's Janitorial work
also was violative of Sec 8(a)(1) of the Act Member Zimmerman would,
however, also affirm the Judge's finding of an 8(a)(1) violation because
the Respondent's termination of DeLeon's contract work was in retalia-
tion for, and designed to interfere with, the bargaining unit employees'
exercise of their Sec 7 rights to engage in union and concerted activities
ent contractor status in these circumstances, we
disagree with our dissenting colleague that termina-
tion of the janitorial duties could not have had an
impact on DeLeon and Other unit employees. 4 In-
asmuch as DeLeon's position as an independent
contractor was related to his status as an employee,
we find that the ,Respondent violated Section
8(a)(3) by terminating DeLeon's services as an in-
dependent contractor in retaliation for the employ-
ees' union activities.5
ORDER
The National Labor Relations Board orders that
the Respondent,. Senftner Volkswagen, Porshe-
Audi, Mazda, Sioux City, Iowa, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Terminating an independent contractor in
order to penalize employees for engaging in union
or concerted activities protected by Section 7 of
the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Rudolph DeLeon reinstatement of his
janitorial contract and make him whole for any
loss of contractual revenue he may have incurred
as a result of his contract being terminated, in ac-
cordance with the formula set forth in the section
of the judge's decision entitled "The Remedy."
(b) Post at its Sioux City, Iowa facility, copies of
the attached notice marked "Appendix." Copies
of the notice, on forms provided by the Regional
Director for Region 18, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
4 Contrary to our dissenting colleague's misconception, the impact to
which we refer is on employees' exercise of their Sec 7 rights to support
a labor organization, not on their terms and conditions of employment
5 We shall substitute a narrow cease-and-desist order for the Judge's
broad injunctive language See Hickman Foods, 242 NLRB 1357 (1979)
If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
273 NLRB No. 24
SENFTNER VOLKSWAGEN .167
.•
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting.
I dissent from my colleagues' finding that the
Respondent's termination of DeLeon's independent
contractor services violated the Act.
DeLeon in his role as independent contractor is
expressly excluded * from the Act's definition of
"employee" and consequently not entitled to the
protections of Section 8(a)(1) and (3). 1 His inde-
pendent contractor duties and interest are so differ-
ent and far removed from those of the unit employ-
ees that I am unable to conclude that the elimina-
tion of his independent contractor status "inter-
fered with the right of employees to exercise their
Section 7 rights or that his reinstatement is neces-
sary to convey to employees the extent to which
the Act protects these rights."2
It is important to note that DeLeon's termination
as an independent contractor is the only unfair
labor practice charged to the Respondent, notwith-
standing the fact that DeLeon was also employed
as a unit employee. It stretches the imagination to
conclude that DeLeon's termination impacted on
bargaining • unit employees when the evidence
shows that the Respondent did not act unlawfully
toward any bargaining unit employee.3
Accordingly, I would dismiss the complaint in its
entirety.
Cf Parker-Robb Chevrolet, 262 NLRB 402 (1982), Firmat Mfg Corp,
255 NLRB 1213 fn 9 (1981)
2 Parker Robb, above at 404
2 My colleagues have engaged in speculation and gross overstatement
by asserting that DeLeon's employee and indepetident contractor status
are so merged that It is impossible that the Respondent's action against
him as an independent contractor could not have had an Impact on his
employee status or on other unit employees In fact the contrary is
shown by the record in this case The record evidence reveals' that
DeLeon continued in his unit position without any changes' to his em-
ployment terms or conditions for approximately 8 months after his Janito-
rial contract services were terminated Similarly, there is no evidence of
any changes with respect to the other unit employees
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the 'United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT terminate an independent contrac-
tor in order to penalize employees for engaging in
union or concerted. activities _protected by Section
7 of the National Labor Relations Act.
- WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by, Section 7 of
the Act.
WE WILL 'offer Rudolph DeLeon reinstatement
of his janitorial contract, and WE WILL make him
whole, with interest, for any loss of contractual
revenue he may have incurred as a result of his
contract being terminated.
SENFTNER VOLKSWAGEN, PORSCHE-
AUDI, MAZDA
DECISION
STATEMENT OF THE CASE
JAMES L ROSE, Administrative Law Ridge. This
matter was tried before me on August 2, 1983, at Sioux
City, Iowa, on the General Counsel's 'complaint which
alleged that on February 12, 1982, the Respondent re-
lieved Rudolph DeLeon of certain duties that he had
been performing in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act, 29 U.S.0 § 151 et
seq.'
The Respondent generally denied that it committed
any unfair labor practices, and affirmatively contends
that the work from which 'DeLeon was terminated was
providing janitorial services as an independent contrac-
tor. Thus, even- though he also worked as an employee,
and only his independent contractor status was altered,
no term or condition of "employment" was affected.
Hence the Respondent can- not be held to have violated
Section 8(a)(3) of the Act.
On the record as a whole, including my observation of
the witnesses, briefs, 2 and arguments of counsel, I make
the following
, FINDINGS OF FACT AND CONCLUSIONS OF LAW
, I JURISDICTION
The Respondent is an Iowa corporation with an office
and place of business in Sioux City, Iowa, engaged in the
retail sale and service of new and used automobiles. It is
one of four automobile dealerships owned and managed
by Gloria Senftner and her husband. In connection with
this business, the Respondent derives gross revenues in
excess of $500,000 and annually receives goods, prod-
ucts, and materials directly from points outside the State
of Iowa valued in excess of '$50,000. The Respondent
admits, and I find, that it is an employer engaged in com-
merce _within the meaning of Section 2(2), (6), and (7) of
the Act.
Certain other allegations relating to violations of Sec 8(a)(5) of the
Act set forth in the complaint were, by order of the Acting Regional Di-
rector, withdrawn
2. The Respondent submitted a reply brief While the Board's Rules and
Regulations do not provide for reply briefs, the Respondent's has been
duly considered in reaching the decision
168 DECISIONS of NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATION INVOLVED
Local Lodge 1426, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO (the Union)
is admitted to be, and I find is, a labor Organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR 'PRACTICE
A. The Undisputed Facts
Rudolph DeLeon was hired by the Respondent on
July 27, 1981, to recondition cars—wash, ,clean,- wax and
the like. He was interviewed and hired by Dennis
Senftner (the' nephew of the owners) WhO at that time
was the general manager and John Glaza; who was then
the new-car sales manager.
About 2 months later, DeLeon was Interviewed by
Senftner and Glaza to see if he would be interested in'
doing night cleanup work" in the office and showroom
areas, for which he would be paid a flat rate of $50 per
week. The Respondent had been using a , janitorial serv-
ice for this work but was dissatisfied with the cost and
quality of the work being done.
Gloria Senftner testified that when she was ,ap,-
proached concerning this, she was advised that it would
be an "independent deal." Thus, the Respondent would
not be liable to pay DeLeon 1-1/2 times his hourly rate
should his janitorial work along with his hours as an em-
ployee exceed 40 per week.3,
DeLeon agreed and sometime in the fall ,of 1981 he
began- doing janitorial work for the Respondent for
which he was paid $50 a week. The checks were made
out- to "Rudy DeLeon Maintenance." The Respondent
made no payroll deductions, or otherwise include
DeLeon with employees when he did the, janitorial
work.
In December 1981 the Union began an organizational
campaign among the Respondent's employees DeLeon
signed an authorization card and testified without contra-
diction that he discussed the Union with Tom Brooks,
the parts manager, Glenn Smith, the service manager,
and Glaza.
A petition for representation was filed and an election
was held on February 12, 1982. The Union received five
votes with four votes _being cast against the Union and
there were two challenged ballots. One challenge was
opened pursuant to 'stipulation and a final tally of ballots
issued showing six votes in favor of the Union and four
against. The other challenge became moot and the Union
was ,certified.
On the day of the election, afterthe 'employees voted
and the preliminary results were 'known, ;Glaza called
DeLeon into his office and told DeLeon' that he had just
finished speaking with Mrs. Senftner. DeLeon testified
that Glaza told him "that she 'didn't want anyone Who
was a nonmanagement employee to have keys to the
_place, which I had. And that he would have to relieve
me of my job because' of that." DeLeon' further testified
3 The validity of the Respondent's position coneerning the legitimacy
of this under the Fair Labor Standards Act is not- before me and I 'need
not pass on it
that Glaza told him that "you guys voting for the union,
that was the clincher." J
On February 22, the Respondent sought _and received
an estimate from Steve Hotvedt, a partner in a cleaning
service, for both a one-time cleanup and a weekly serv-
ice. While Hotvedt's firm was hired for a one-time job,
the daily cleaning work was assigned to employee
Donald Wilmot, a_retired individual who had worked for
the Respondent for a number of years and who had been
rehired in • January 1982 also to work on car preparation.
Wilmot assumed the janitorial duties in March 1982 and
performs them during normal working hours. DeLeon,
as well as the previous janitorial service, had done this
work after nOrmal hours
DeLeon' Continued to Work at his job in car prepara-
tion but in October 1982 resigned his employment for
reasons not in issue here. -
Gloria Senftner testified that the Respondent, had been
losing money throughout 1981 and was continually seek-
ing ways to. cut costs. Thus DeLeon was hired for jani-
tor work in the first instance as a cost-saving measure.
And even then, the Respondent continued to seek ways
of having the work done cheaper. An estimate from a
janiiorial'seiviCe was sought and received in December,
but was never acted on.
She further- testified that sometime in January she and
'her husband made the determination to take the janitor
Work away from DeLeon and give it to Wilinot. Howev-
"er, sinCe the representation petition was pending, they
determined to make no changes until 'after the election.
She further testified, and brought forth documentary evi-
dence, to the effect that employees who had ceased
working for whatever reason in early 1982 were not re-
placed. However, she admitted that ads were placed in
newspapers for replacements.
B. Analysis and Concluding Findings
Given the timifig of relieving DeLeon of his janitorial
duties with the vote of employees in favor of the Union,
the inference is inescapable that there was a connection
between these two events. In addition, DeLeon testified
that, when 'interviewed by Glaza on the day of the elec-
tion Glaza told him, among other things, "and you know
the 'reason [for his termination], you know, you guys
voting for the Union, that was the clincher." Glaza testi-
fied that he said, "Rudy, this isn't because of the elec-
tion; this is just the straw that broke the camel's back."
While the precise words remembered by DeLeon and
Glaza differ, the import is the same—while other factors
may have been involved, the employees' vote was deter-
minative.
DeLeon 'was a 'generally credible witness. The state-
ments-attfibuted by him to Glaza were not denied. Nor
did the Respondent deny knowing of DeLeon's involve-
ment with the_ Union (having discussed, the matter with
management), And whatever their differences now, on
February j2_ Glaza was undisputably in charge of the
Respondent's Sioux City operation. His words, therefore,
stated the Respondent's intent: I therefore conclude that
the General Counsel did establish .prima facie that the
precipitating cause of the Respondent's relieving DeLeon
• SENFTNER VOLKSWAGEN 169
of the janitorial duties was because of his and the other
employees' union activity. Thus the burden shifted to the
Respondent to prove that it would have relieved
DeLeon even absent the union activity. Wright Line, 251
NLRB 1083 (1980). I conclude the Respondent failed to
meet this burden
In defense, the Respondent relies on two factual asser-
tions: first, that Senftner had nothing 'to -do with notify-
ing DeLeon on February 12 that he had been relieved of
the janitorial work; second, that the, decision to relieve
DeLeon and replace him with Wilmot predated the elec-
tion. The first assertion is in direct conflict with the testi-
mony of Glaza. The second is self-serving, uncorrOborat-
ed, and in conflict with documentary evidence.
Senftner testified that she neither called Glaza election
day nor did she talk to him personally, and that was she
not physically present in Sioux City on February 12. Her
testimony that she was not in Sioux City was , corroborat-
ed by Helga Van Huef, the Respondent's warranty man-
ager who was in Sioux City on the da* of the election.
Senftner testified that prior to the election, she and her
husband made the decision to relieve DeLeon of the
cleanup work, and give it to Wilmot. This testimony ,is,
of course, self-serving and was not corroborated. To the
contrary, after DeLeon had been terminated from the
cleanup work , the Respondent sought an estimate for this
work from a maintenance service. Such actiOn tends to
show that no decision had previously been made to take
the work from DeLeon and give it to Wilmot or anyone
else. It may have been that the Respondent was always
seeking to find cheaper cleanup but such does not disap-
prove the inference I draw of a casual connection be-
tween taking the work from DeLeon and the vote of em-
ployees for the Union on February 12.
The Respondent contends that Senftner had made the
decision to replace DeLeon prior to the election but she
had nothing to do with notifying DeLeon on the day of
the election that he was being terminated from the jani-
tor job.
While Senftner contends that she did not talk to Glaza
on February 12, she did not explain how it was Glaza
told DeLeon on February 12 that he no longer had the
cleanup work and to turn in his keys. She accepts that
DeLeon was relieved because such was the decision of
her husband and her. She apparently also accepts the
fact that notification came through Glaza since there was
no longer a general manager at the Sioux City facility
To believe that Senftner did not tell Glaza on Febru-
ary 12 to relieve DeLeon would require believing that
Glaza did so on his own initiative. While Senftner testi-
fied that the decision had already been made to relieve
DeLeon, she did not testify that this decision had been
communicated to Glaza (or anyone else). Thus, to be-
lieve that, Senftner would have to believe that Glaza im-
plemented a decision of the owners without knowing
that such a decision had, in fact, been made. Such is in-
credible. It is far more believable that Senftner contacted
Glaza on February 12 and told him that the election had
been lost and to get the keys from DeLeon.
Such is the thrust of the testimony of both Glaza and
DeLeon. In addition to finding them both generally
credible, I also find that Glaza's acting as a conduit for
Senftner on February 12 is more consistent with the ob-
jective facts in this matter. Thus I conclude that Senftner
contacted Glaza on February 12 and told him to relieve
DeLeon and that she did so because ,the employees had
voted in favor of representation by the Union. 1n short, I
discredit Senftner's denial that she had any communica-
tion,with Glaza 'on February 12. (It may be that Senftner
called and was not physically present in Sioux- City.
Glaza's testimony seems to suggest a personal contact;
but it is not really definitive on this point, which, in any
event, is tangential.)
I also discount the Respondent's argument that replac-
ing DeLeon. with Wilmot was solely for economic rea-
sons. When Wilmot began doing the cleanup work, he
substantially ceased doing reconditioning of detail work
but he continued to run errands. The Respondent argues
that it saved $206'per month by terminating DeLeon, but
did not demonstrate how. Indeed, it appears that Wilmot
put in 2 to 3 hours a_day doing cleanup work, which, at
his rate of $4 per hour,. amounted to more than $50 per
week. And the one-time cleaning by Hotvedt's service
was $227.
The _Respondent's principal defense is that DeLeon
was an independent contractor as to the cleanup work.
Hence, he did not have protection of the Act as to that
work, and terminating this relationship did not affect his
employment. Accepting that he was an independent con-
tractor for this work, 4 he, nevertheless, suffered a loss of
earnings because he and other employees voted in favor
of the Union. He was undisputedly an employee. His loss
of earnings necessarily interfered with his Section 7
rights and those of fellow employees just as surely as if
he had been discharged from his bargaining unit job.
The mere fact that an employee also works for his em-
ployer as an independent contractor does not mean the
employer may with impunity discriminate against that
employee, even if the effect of the discrimination relates
only to his independent contractor work. The Respond-
ent has cited no case where the Board has permitted
such discrimination To the contrary, the Board has long
held that discharge of a nonemployee may be violative
of the Act if such interferes with the exercise of protect-
ed activity by employees. E.g., Firmat Mfg. Corp., 255
NLRB 1213 (1981), where the discharged individual was
not an employee but where his discharge was found to
be part of a plan of discrimination against employees. See
also Parker-Robb Chevrolet, 262 NLRB 402 (1982), affd.
711 F 2d 383 (D.C. Cir 1983), where the Board over-
ruled its "pattern of conduct" standard with regard to
the discharge of a supervisor but reaffirmed that such a
discharge is violative of Section 8(a)(1) if it interfers with
employees' Section 7 rights.
Finally, in Operating Engineers Local 400, 265 NLRB
1316 (1982), the Board found a violation of Section
4 In the past this work had been done by nonbargaming unit employees
as in this industry It often is DeLeon was paid a flat rate, could work
when he pleased, so long as the work was done outside normal business
hours, could use helpers, and was not supervised as to the manner and
means of doing this work The Respondent's argument that it did not
make payroll deductions is self-serving and is not particularly relevant
Not making payroll deductions proves nothing about their being re-
quired
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) when the employer terminated a Contract for jani-
torial 'services with an individual because her employee
husband had engaged in protected actinty. Ternunating
the independent contractor relationship of an enmilOyee's
Wife had a coercive effect on employees. A fOrtiori ter-
minating the independent contractor relationship' of an
employee would have a coercive effect on hini and other
employees. • _
Accordingly, I conclude that by taking 'from DeLeon
the opportunity to work for the Respondent as a jarnior,
because he and other employees voted for 'union repre-
sentation, the Respondent violated Section 8(a)(1) ,and (3)
of the National Labor Relations Act and an appropriate.
remedy should be ordered.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The effect of the unfair labor • practices found - above
have a close, intimate, and substantial relationship to
trade, traffic, and commerce among- the several States
and tend to lead to labor disputes burdening and 'ob-
structing commerce and the free . flow , thereof within the
meaning of Section 2(6) and (7) of the Act'.
V THE REMEDY
Having found that the Respondent unlaWfully termi-
nated DeLeon from his work as a janitor, the Respond-
ent shall be ordered to offer DeLeon reinstatement to
this work and to make him whole for any losses he may
have suffered as a result of this discrimination against
him• with interest as provided for in 'Florida Steel Corp,
231 NLRB 651 (1977). Since the janitorial work was in
addition to full-time employment, the provisions of F. W.
Woolworth Co., 90 NLRB 289 (1950), do not apply.
Although DeLeon subsequently quit his bargaining
unit job, and there is no contention that such resulted
from the Respondent's unfair labor practice, it does not
follow that the Respondent's backpay liability has been
tolled There is no particular reason to believe that
absent the Respondent's discrimination against DeLeon
he would also have quit the janitor work. It is just as
reasonable to conclude that absent the discrimination he
would have continued in both endeavors. Thus I con-
clude that the Respondent has not met its burden of
proving that the backpay period ended in October 1982.
Accordingly, the Respondent's liability for backpay con-
tinues to run until such time as DeLeon is offered rein-
statement to the janitor work. Operating_ Engineers Local
400, supra. •
[Recommended Order omitted from publication.]