Senftner Volkswagen, Porsche-Audi, Mazda

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.]