NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Philip David SACHS et al., Respondents.
No. 73-1456.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 15, 1974. Decided Oct. 10, 1974.
503 F.2d 1229
The second ground for reversal urged by appellants relates to the trial court‘s rejection of tendered evidence that one Chester Dudek made misrepresentations concerning the Statler rotary engine to another group of persons some months after the Aquionics purchase and that they were similar to misrepresentations allegedly made earlier to the Aquionics principals. The purpose of this evidence was to show that there was a continuing fraud. However, in the proffer it was stated that Dudek was a business broker who was “brought in” by some of the defendants. There was no proffer of any evidence that Dudek was an agent of the defendants with authority to speak for them or bind them in any way. The district court correctly held that such evidence was inadmissible.
The judgment of the district court is reversed, and the case remanded for a new trial.
Pell, Circuit Judge, dissented and filed opinion.
Elliott Moore, Acting Asst. Gen. Counsel, Morton Namrow, Atty., NLRB, Washington, D. C., for petitioner.
Sam Pessin, Stephen M. Kernan, Belleville, Ill., for respondents.
Before PELL, STEVENS and SPRECHER, Circuit Judges.
PER CURIAM.
In its order of October 19, 1972, and supplemental order of March 7, 1973, the NLRB determined that Peko Ltd.
I.
Phil‘s is a relatively small service station located in Collinsville, Illinois. It was the “management” of Phil‘s, i. e., the Sachs brothers, who actually imposed the “more arduous” working conditions and laid off the four service attendants. Peko and Sav-Co.1 thus contend that the Sachs brothers were independent contractors and that they are not responsible for the brothers’ labor practices. The administrative law judge agreed with this contention, but the Board reversed, concluding that the brothers were agents of Peko and Sav-Co. and not independent contractors. See App. 8 & n. 6. If the record as a whole contains substantial evidence supporting the Board‘s conclusion, it must, of course, be upheld.
A.
The record demonstrates that Sav-Co. owns a building in Collinsville which is operated as a retail discount department store under the name “Sav-Mart.” All of the departments within the store and the automotive store (located in a nearby building) are managed by enterprises
Located in one corner of the parking area surrounding Sav-Mart is the retail gasoline station which eventually became “Phil‘s.” The station was constructed jointly by Sav-Co. and Mid West Petroleum Co. in 1967 and then leased to Mid West; the lease was assigned to Peko on January 2, 1968.
On the same day Peko entered into a written contract with Ben Sachs, the father of the Sachs brothers. In consideration of a $100 per week salary, Ben Sachs agreed to: 1) “supervise” the Peko stations located at the four Sav-Mart locations; 2) “advise” Peko “of the condition of the repair of its equipment and machinery and the condition of the gas service stations, the conduct and manner of operation of said service stations by the personnel operating the same and also as to the quantity, quality and types of the various products sold at said stations“; 3) “advise” Peko “as to the need for and make recommendations to [Peko] as to changing of equipment and/or products and keep [Peko] informed as to all trends and developments in the trade and business“; and 4) “make all necessary recommendations to the operators of the various stations supplied by Peko concerning their handling of credit cards and cash collection systems together with payment of accounts due from the operators to [Peko].” Ex. No. LTD-1. Although the contract referred to Ben Sachs as an “independent contractor,” the Board properly concluded that he was an agent of Peko and Sav-Co.2
Upon the recommendation of Ben Sachs, Peko subleased its Collinsville station to and entered into a “consignment contract” with Philip Sachs, Ben Sachs’ eldest son. Pursuant to the sublease, Ex. No. GC-4, Phil Sachs was required, inter alia, to: 1) pay a rental of $500 per month or one cent per gallon of gasoline sold, whichever was greater; 2) maintain the station in good repair; 3) paint the station whenever Sav-Co. “deemed necessary“; 4) keep “the outside area of said premises in a neat condition and free of any objectionable debris, and reasonably free of snow, ice and water“; 5) refrain from erecting certain types of advertising and making certain alterations to the property without written consent; 6) indemnify Sav-Co. against certain claims; 7) give a two cent per gallon discount to “members of Sav-Mart“; 8) allow Sav-Co. to inspect all of its records upon demand; 9) “use reasonable diligence in the courteous and efficient sale and dispersing of products for sale on said premises with sufficient capable personnel“; 10) have a sufficient reserve supply of products to reasonably fill demands therefor“; 11) “have said station open for business daily from at least 6 A.M. each morning until at least 11 P.M. each night“; 12) “have sufficient number of pumps of recent design to properly service the reasonably foreseeable demand“; and 13) refrain from doing anything “which might in any way damage or injure the credit and/or business reputation of Sav-Mart.” Failure to perform any of these requirements would, of course, allow Sav-Co. to terminate the lease.
Pursuant to the consignment contract, Ex. No. GC-5, Philip Sachs was required to: 1) sell only those products
The consignment contract further provided that Peko would: 1) “render merchandising management and administrative advice and assistance” to Phil Sachs; 2) “furnish such advertising and sales promotion from time to time as it deems proper“; 3) keep an account of all Sachs’ sales; 4) pay all of the station‘s “rentals, utility bills, taxes, and all other occupational costs, other than labor and wages, and render a monthly account therefor“; 5) protect the consigned products “from harm resulting from fire, wind and storm, and from other hazards“; 6) have the rights to inventory all consigned products whenever it desired and to demand and receive compensation for any missing goods; and 7) have the right to change any of the trade names on the consigned products.
Peko compensated Phil Sachs at the rate of three cents per gallon of gasoline sold. However, in return for certain services, he was required to pay Peko four cents per gallon. (Presumably this one cent per gallon differential satisfied the rental requirement under the sublease.) Peko guaranteed Phil Sachs “profits” of $8,000 per annum. His only investment in the enterprise was $52 in petty cash.
Subsequent to signing the agreements with Peko, Phil Sachs entered the Navy and the management of the station was entrusted primarily to Sachs’ brothers. On various occasions Ben Sachs came to the station and “directed” the employees “to do particular work assignments,” such as “to make announcements” in the Sav-Mart store, “to clean the lot, how much gas to order.”3 App. 25-26. As one employee testified, he regarded Ben Sachs as his “boss.” App. 27.
Ben Sachs played an active role in the station‘s labor affairs. He was responsible for the allegedly unlawful interrogation of one employee. When the union complained of another employee‘s (Templeman‘s) discharge, Ben Sachs alone met with the union‘s representative, Lester Baum, and said, “[I]f you say we have to put him back, we are going to put him back.” App. 98. Shortly thereafter Templeman was reinstated. When the station‘s employees went on strike because of a contract dispute, Ben Sachs told the brothers that Peko wanted the strike settled. He, along with the brothers, met with Baum to discuss the contract. One of the brothers told Baum that there would be no discussion unless the employees left the meeting room. The agent then called a director, officer and substantial stockholder of Peko and Sav-Co., Sidney Katz. After Ben Sachs talked to Katz, the contract was signed in the employees’ presence.
Peko and Sav-Co. also played an active role in the station‘s labor affairs. When Templeman was discharged, Baum called Katz, who then set up the meeting between Baum and Ben Sachs. When the contract dispute arose, Baum called Katz and Ben Pessin, another director, officer and substantial stockholder of Peko and substantial stockholder of Sav-Co. Pessin “assured” him that “somebody would be in the office to sign the contract . . . .” App. 101. When the Sachs
B.
Whether the Sachs brothers were “independent contractors” depends upon whether Peko and Sav-Co. had the right to control the way the brothers managed Phil‘s.
In determining the status of persons alleged to be independent contractors, the Act requires the application of the “right to control” test. Where the person for whom the services are performed retains the right to control the manner and means by which the result is to be accomplished, the relationship is one of employment. On the other hand, where control is reserved only as to the result sought the relationship is that of independent contractor. The resolution of this question depends upon the facts of each case and no one factor is determinative. Frito-Lay, Inc. v. NLRB, 385 F.2d 180, 187 (7th Cir. 1967). It is, of course, the right to control and not the actual exercise of that right which is the decisive element. United Insurance Co. of America v. NLRB, 304 F.2d 86, 89 (7th Cir. 1962).
In our opinion, the evidence detailed above provides substantial support for the Board‘s determination that Peko and Sav-Co. had the right to control the way the Sachs brothers managed Phil‘s. Indeed, the sublease and consignment contract, which covered everything from the condition, equipment and the hours of the station to the products available for sale and the number and attitude of employees, were obviously drafted with this right in mind. And the actual intervention of Ben Sachs, Sidney Katz and Ben Pessin in the station‘s affairs confirms the existence of this right.4 Where petroleum companies have reserved such extensive controls, the courts have generally refused to find that the service station operators were independent contractors. See, e. g., Burriss v. Texaco, Inc., 361 F.2d 169 (4th Cir. 1966); Gulf Refining Co. v. Brown, 93 F.2d 870 (4th Cir. 1938).5
Peko and Sav-Co. have called our attention to the Eighth Circuit‘s decision in Site Oil Co. of Missouri v. NLRB, 319 F.2d 86 (1963). Although we are not bound by this authority, it might be noted that the case is distinguishable. The Eighth Circuit recognized that whether
The only objection which has been been raised to the Board‘s determinations concerning the “more arduous” working conditions and discriminatory lay-offs is the lack of responsibility of Peko and Sav-Co. Since there is no other objection, we will enforce that part of the Board‘s order dealing with these violations. See NLRB v. National Mineral Co., 134 F.2d 424, 425-426 (7th Cir. 1943), cert. denied, 320 U.S. 753, 64 S. Ct. 58, 88 L.Ed. 448; cf. NLRB v. Ochoa Fertilizer Co., 368 U.S. 318, 322-323, 82 S.Ct. 344, 7 L.Ed.2d 312 (1961).
II.
On October 2 or 3, 1971, Harvey Sachs discharged one of the station‘s four part-time employees, David Templeman, allegedly because of excessive shortages in his accounts. At the union‘s demand,7 however, Templeman was reinstated. On October 4, 1971, when Gary Waligorski, another employee, arrived at the station for his shift, Ben and Harvey Sachs told him that he was laid off because they had to reinstate Templeman.8 Waligorski then went into the back room of the station to collect his belongings. Ben and Harvey Sachs followed Waligorski and a conversation ensued:
Q. What did he [Ben Sachs] state to you [Waligorski], again, so we might have everything clear on the record?
A. “Who made you join the union?”
Q. And you answered?
A. “No one made me join the union, it was under by free will.”
Q. What did he state then?
A. He said, “Speaking friends to friends, why did you join the union?”
Q. Did you make any response to this?
A. Yes, I said, “The union has more to offer, the only way I would get anything would be through the union.”
Q. What happened then?
A. Then he said, “Look where the union got you, you have a $25 initiation fee and you are out of a job.”
Q. Did you make any response to this?
A. I said I had another job lined up.
Q. What happened then?
A. I gathered my stuff and I left.
Tr. 31-32. The administrative law judge concluded that the questioning of Waligorski violated
We do not believe that Sachs’ questioning of Waligorski concerning his motivation for joining the union constitutes a violation of
Sachs’ statement that “Look where the union got you, you have a $25 initiation fee and you are out of a job” also is not violative of
In sum, we do not believe that substantial evidence supports the Board‘s determination that there was an unlawful interrogation. Accordingly, we decline to enforce paragraph 1(b) of the Board‘s order. The Board has argued that, since only Peko and Sav-Co. have challenged its orders in this court, it is entitled to complete enforcement against Phil‘s. However, as the Board determined, Phil‘s, Peko and Sav-Mart constituted an integrated enterprise and must be treated jointly.
With the exception of paragraph 1(b), the Board‘s order is enforced.
PELL, Circuit Judge (dissenting).
When these proceedings were first before the trial examiner he issued his decision after a careful and thorough analysis of the evidence. Upon that basis he found that Ben Sachs and Philip Sachs were independent contractors and that the service station in question was not part of the integrated Sav-Mart enterprise of Sav-Co. and Peko Ltd.
I agree with the trial examiner‘s appraisal of the evidence and the result he reached and would therefore deny enforcement of the Board‘s order as to Sav-Co. and Peko Ltd. I accordingly respectfully dissent.