N.L.R.B. v. Senftner Volkswagen Corp.

• Decision Date: 08 July 1982
• Docket Number: No. 82-1032,82-1032
• Citation: 681 F.2d 557
• Parties: 110 L.R.R.M. (BNA) 3190, 94 Lab.Cas. P 13,672 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SENFTNER VOLKSWAGEN CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 557

681 F.2d 557

110 L.R.R.M. (BNA) 3190, 94 Lab.Cas. P 13,672

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SENFTNER VOLKSWAGEN CORPORATION, Respondent.

No. 82-1032.

United States Court of Appeals Eighth Circuit.

Submitted June 14, 1982.

Decided July 8, 1982.

Alaniz, Bruckner & Sykes, Arthur T. Carter, James C. Zalewski, Lincoln, Neb., for respondent.

James Y. Callear, Atty., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D. C., for petitioner.

Before LAY, Chief Judge, FAIRCHILD, ^* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

PER CURIAM.

Senftner Volkswagen Corporation (Company) seeks review and reversal of an order of the National Labor Relations Board (Board) resulting from the Board's determination that the Company violated the National Labor Relations Act. The Board, in agreement with the administrative law judge (ALJ), found the Company violated section 8(a)(1) and (3) of the Act by refusing to reemploy John Newman because of his union sympathies. The Board also agreed with the ALJ that the Company violated section 8(a)(1), (3), and (4) by withdrawing a subsequent offer of employment because Newman's union filed an unfair labor practice charge on Newman's behalf. The Company urges these determinations are not supported by substantial evidence on the record as a whole.

James Senftner is president of the Company, which sells and services automobiles at Sioux City, Iowa. James Senftner spent much of his time away from Sioux City and left Dennis Senftner, his nephew, in charge of the day-to-day operation of the Sioux City facility at all relevant times. In 1977, District No. 162, International Association of Machinists and Aerospace Workers (Union) was certified as the bargaining unit at the Company. John Newman, then a mechanic in the service department and a member of the Union's negotiating committee, was one of the signatories to the agreement. Thereafter, he served as an assistant shop steward and as shop steward, the latter post he held when he was promoted to a management position.

His employers considered Newman an excellent mechanic. In August 1979, Dennis Senftner offered Newman the position of service manager. At that time, he told Newman if he was not successful at the job or did not like it he could return to the shop as a mechanic. After checking with the secretary-treasurer of the Company, Dennis Senftner told Newman that a section in the contract covered such a return. ¹ Newman accepted the promotion, but within two months asked for his old job back. Dennis Senftner encouraged Newman to continue as service manager, but after Newman made a number of requests for his old job, Dennis promised that he would soon find a replacement and said that Newman might return to the shop as a "working foreman." No replacement suitable to Senftner was found.

In January 1980, Newman's job performance deteriorated. On January 25, Dennis Senftner told Newman that he was discharged and gave as a reason only that James Senftner had decided to terminate him. The younger Senftner acknowledged that he had previously promised Newman that he could return to the shop. Dennis told Newman that he would contact his uncle with regard to Newman's old job. The following conversation then ensued between them:

Dennis: This is off the record and if it's brought up again, I'll deny it, but ... if you go back to the shop, are you going to join the Union?

Newman: What the hell has the Union got to do with it? It was your promise.

Dennis then told Newman that James Senftner told him that if Newman went back out in the shop and joined the Union, that it would make the Union twice as strong and James just would not have that. Senftner also said "I'm almost sure that I can get your (old) job back."

The following day, Dennis Senftner told Newman that his uncle denied Newman his old job and that any commitment made by Dennis was a promise the latter could not keep. A short time later, Dennis denied Newman some pay Newman believed he was owed. Newman then had the Union write a letter to the Company asking for the money and advising of the possibility of a lawsuit. The letter was dated January 30.

On February 8, with at least the concurrence of his uncle, Dennis Senftner telephoned Newman to offer him a job as a mechanic. Newman did not accept immediately, so the next day Dennis phoned Newman to set up an appointment for February 11.

Also on February 9, the Company received the copy of the unfair labor practice charge mailed to it by the Union on February 7. Newman kept the February 11 appointment, but Dennis Senftner did not. During the next week, Newman phoned Dennis three times about the job. On February 13, Dennis told Newman that he had to check with the acting service manager. On February 15, he was told that things were slow and he was on temporary layoff. Finally, on February 18, Dennis Senftner told Newman that he was terminated.

Refusal to Rehire.

The Company clearly violated section 8(a)(3) if it refused to rehire Newman because of union considerations. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 183-86, 61 S.Ct. 845, 847-848, 85 L.Ed. 1271 (1941). The principal question is whether the employer was motivated by antiunion animus. NLRB v. Melrose Processing Co., 351 F.2d 693, 697 (8th Cir. 1965). Intent is subjective and in many cases can be proved only by the use of circumstantial evidence. In analyzing the evidence, circumstantial or direct, the Board is free to draw any reasonable inference. It may also choose between fairly conflicting views of the evidence, but it cannot rely on suspicion, surmise, implications, or plainly incredible evidence. McGraw-Edison Co. v. NLRB, 419 F.2d 67, 75-6 (8th Cir. 1969).

There is no question that Newman was very active in the Union before his promotion to service manager. It is also reasonably certain that Dennis Senftner asked Newman whether he would rejoin the Union if he went back to the shop and that the younger Senftner stated that if Newman rejoined the Union it would be twice as strong-and that James Senftner "just wouldn't have that." Certainly, this evidence is a prima facie showing sufficient to support the inference that Newman's union activity was a motivating factor in the refusal to rehire. Thus, the Company has the burden of demonstrating that it would not...