Alamo Rent-A-Car, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 275 (N.L.R.B. 2002)

ALAMO RENT-A-CAR, INC. 275
Alamo Rent-A-Car, Inc. and Teamsters Local 385,
affiliated with International Brotherhood of
Teamsters, AFL–CIO. Cases 12–CA–16972, 12–
CA–17969, 12–CA–18121, 12–CA–18122–4, and
12–CA–18857
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On September 14, 1999, Administrative Law Judge
Lawrence C. Cullen issued the attached decision. The
General Counsel and the Respondent filed exceptions
and supporting briefs, and the General Counsel filed an
answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions,2 except as modified here,3 and to

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In the absence of exceptions, we adopt the judge’s finding that the
Respondent’s Regional Director of Operations Bill Decker violated
Sec. 8(a)(1) by equating union activities with disloyalty in a conversa-
tion with employee Fernande Lynn Edwards on December 4, 1994. We
need not pass on the judge’s conclusion that Decker unlawfully solic-
ited grievances from Edwards because such a finding would be cumula-
tive of other unfair labor practice findings and would not affect the
remedy here. For the same reason, we need not pass on whether Re-
spondent’s shift manager, Kevin Guarney, made an unlawful statement
to Edwards about disloyalty on January 9, 1995.
Additionally, Member Cowen finds it unnecessary to pass on the fol-
lowing allegations because the remedies for any violations would be
cumulative in this case: (1) City Manger Raja Assal’s alleged interroga-
tion of employee Edwards on January 9, 1995; (2) Assal’s alleged
threat to Edwards during this same conversation, that the Respondent
would bargain from scratch or would take a regressive bargaining pos-
ture; (3) City Manager Hans Hutwalcker’s alleged interrogation of
employee Fernando Altamirano in March 1996; and (4) Hutwalcker’s
alleged solicitation of grievances from employee Jose Perez in March
or April 1996.
Finally, Member Cowen does not pass on the General Counsel’s ar-
gument, set out by the judge in sec. II,A,2 analysis, in agreeing with the
judge that the Respondent violated Sec. 8(a)(1) when it impliedly
threatened employees with the loss of wages and benefits if they chose
union representation.
3 In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(1) by supporting employee-led “Roundtable” meetings, we
rely on evidence that the Respondent used these meetings as part of an
unprecedented effort to solicit employees’ grievances with a promise to
remedy them. In fact, after the first meeting, grievances were reported
by the antiunion employee leadership to City Manager Steve Raffio,
who informed them of those he could remedy and those he could not
address. In finding this violation, we do not rely either on the Respon-
dent’s permitting employees to attend these meetings off premises
adopt the recommended Order as modified and set forth
in full below.4
1. The Respondent excepts, inter alia, to the judge’s
denial of its motion to defer to a non-Board settlement
agreement in lieu of further proceedings. It is well set-
tled, however, that the Board is not required to give ef-
fect to all settlements reached between parties. As ex-
plained in Independent Stave, 287 NLRB 740, 741
(1987), the Board’s power to prevent unfair labor prac-
tices is to be exercised in the public interest, and there-
fore the Board can refuse to be bound by any settlement
that does not further the purposes of the Act. In deter-
mining whether to approve a settlement,

the Board will examine all the surrounding circum-
stances including, but not limited to, (1) whether the
charging party(ies), the respondent(s), and any of the
individual discriminatee(s) have agreed to be bound,
and the position taken by the General Counsel regard-
ing the settlement; (2) whether the settlement is reason-
able in light of the nature of the violations alleged, the
risks inherent in litigation, and the stage of the litiga-
tion; (3) whether there has been any fraud, coercion, or
duress by any of the parties in reaching the settlement;
and (4) whether the respondent has engaged in a history
of violations of the Act or has breached previous set-
tlement agreements resolving unfair labor practice dis-
putes.5

Here, there is no fraud or duress alleged. There is also
no evidence of previous misconduct by the Respondent.
However, the evidence relative to the first and second
Independent Stave factors weighs heavily against approv-
ing the non-Board settlement agreement. With respect to
the first factor, only one of the four individual discrimi-
natees approved the agreement, and the General Counsel
strongly opposes it. With respect to the second factor,

during work hours or on the Respondent’s reimbursement of food and
drink expenses from the meetings.
In adopting the judge’s conclusion that the Respondent violated Sec.
8(a)(3) by issuing a written discipline and 3-day suspension of Linda
Sconyers on April 7, 1996, we find further evidence of animus, proving
discriminatory motivation, in Raffio’s April 10, 1996 expression to
Sconyers of his disappointment with her union activities, and in Raf-
fio’s May 28, 1996 statement to Sconyers that her organizing activities
would “cripple” her career.
4 We shall modify the judge’s recommended Order in accordance
with Indian Hills Care Center, 321 NLRB 144 (1996), and Ferguson
Electric Co., 335 NLRB 142 (2001). In accord with the General Coun-
sel’s exceptions, we shall add to the judge’s recommended Order and
notice references to the dates of certain violations as well as the tradi-
tional remedial injunction against further violation of employees’ Sec. 7
rights “in any like or related manner.” Finally, we shall substitute a
new notice that includes introductory language revisions in accordance
with Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
5 Independent Stave, supra at 743.
338 NLRB No. 31
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 276
the settlement fails to address substantial portions of the
case. It fails to remedy any of the alleged 8(a)(1) viola-
tions and it only partially remedies two of the alleged
8(a)(3) and (1) violations. Under these circumstances,
we find that the judge reasonably denied Respondent’s
motion to defer to the parties’ settlement agreement.
2. We find merit in the Respondent’s exceptions to
two 8(a)(1) findings by the judge.
The judge found the Respondent’s manager, Karen
Soyk, threatened the futility of bargaining when she indi-
cated to employees at a January 1995 meeting that the
Union would negotiate the same benefits package that
employees already had. Soyk was explaining the Re-
spondent’s benefits plan called FAMPACT to employ-
ees. Employee Edwards credibly testified, “She [Soyk]
explained that the FAMPACT has been there and they
are now bringing it to employees. That the same benefits
that we have in the FAMPACT, we have vacation, we
have medical plan, we have 401(k), all the benefits we
have in the FAMPACT will be the same benefits that the
Union will negotiate for us. That is just like the contract
the Union will get for us.”
Nowhere in this credited testimony is there the slight-
est suggestion that the Respondent would not negotiate in
good faith with the Union about the various benefits
mentioned or that the Union could not secure a different
or better benefits package through bargaining. Soyk’s
personal prediction about the results of bargaining cannot
reasonably be viewed as a threat that no other outcome
would be possible. We dismiss this complaint allega-
tion.6
The judge also found that the Respondent violated
Section 8(a)(1) of the Act by engaging in surveillance of
the election activities when a police deputy, employed by
the Respondent as a guard, entered the polling area.
Contrary to the judge, we find that the evidence concern-
ing this brief incident is too ambiguous to warrant an
unfair labor practice finding. We dismiss this allegation
as well.
3. Finally, we find merit in the Respondent’s excep-
tions to one of the 8(a)(3) violations found by the judge.7

6 Contrary to their dissenting colleague, Members Cowen and Bart-
lett find that a statement found unlawful in Aqua Cool, 332 NLRB 95,
96 (2000), i.e., that “employees were unlikely to win anything more at
the bargaining table,” is not comparable to the statement at issue here.
Quite simply, we do not view Soyk’s remarks as reasonably suggesting
any cap on what could be obtained in good-faith bargaining. Further-
more, we do not agree that other unlawful statements about bargaining
made by other officials at other times would so affect employees’ per-
ception of Soyk’s remarks that they would reasonably tend to believe
she was threatening the futility of bargaining.
7 Contrary to their dissenting colleague, Members Liebman and
Bartlett find, in agreement with the judge, that the Respondent’s super-
visor, Lovejoy-Flairty, unlawfully warned Fernande Lynn Edwards on
He found that the Respondent discriminatorily disci-
plined employees Altimirano and Edwards for taking an
extended dinner break on May 15, 1996. While we agree
with the judge that the General Counsel has met the ini-
tial burden of proving antiunion motivation for the disci-
pline of two prominent union supporters, we conclude
that the Respondent has met its rebuttal burden of show-
ing that it would have taken the same disciplinary action
even in the absence of union activity.
Indeed, the judge himself found that the imposition of
discipline “was not inconsistent with the requirement of
the policy set out in FAMPACT regarding dinner
breaks.” Contrary to the judge and our dissenting col-
league, we find the lack of evidence of any previous dis-
ciplinary actions for taking excessive dinner breaks does
not undercut the Respondent’s legitimate defense here, in
the absence of anything more than sheer speculation that
prior infractions must have taken place and that the Re-
spondent countenanced them. We therefore dismiss the
8(a)(3) allegation concerning this disciplinary action.
ORDER
The National Labor Relations Board orders that the
Respondent, Alamo Rent-A-Car, Inc., Orlando, Florida,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting employee grievances and impliedly
promising to remedy them in order to discourage em-
ployees from engaging in activities on behalf of the

July 13, 1996. They find no basis in the dissent for the assumption that
Respondent’s animus against prominent union activists had dissipated
in the wake of the Union’s second election defeat. Furthermore, the
Respondent failed to present any independent evidence of the alleged
customer complaint, and Lovejoy-Flairty provided no explanation for
why Edwards received no notice of the warning, which Lovejoy-Flairty
admittedly placed in the employee’s file to permit acceleration of future
discipline. Under these circumstances, Members Liebman and Bartlett
find that the alleged customer complaint underlying the warning was a
mere pretext for retaliation against Edwards for supporting the Union.
Contrary to his colleagues, Member Cowen would not find that the
Respondent violated Sec. 8(a)(3) of the Act by the warning that Super-
visor Ginger Lovejoy-Flairty issued to employee Fernande Lynn Ed-
wards in response to a customer complaint. Lovejoy-Flairty issued this
warning on July 13, 1996, about 2 months after the Union had lost the
second of three elections here. Edwards denied that she ever received
it. While admitting that she did not have a specific recollection of her
conversation with Edwards about this warning, Lovejoy-Flairty testi-
fied that she “probably wrote 30 or 40 of these a month” based on
customer complaints. Clearly, based on Lovejoy-Flairty’s testimony, it
was common for the Respondent to issue such warnings when custom-
ers complained about poor service. There is also no evidence here
linking this discipline to Edwards’ union activities in the organizing
campaign that had just ended in failure. In these circumstances, Mem-
ber Cowen would find that the General Counsel has failed to establish
the requisite elements of a prima facie case that Edwards’ warning
violated Sec. 8(a)(3). He therefore would dismiss this allegation of the
complaint.
ALAMO RENT-A-CAR, INC. 277
Teamsters Local 385, affiliated with International Broth-
erhood of Teamsters, AFL–CIO, or any other labor or-
ganization.
(b) Interrogating employees concerning their support
for, activities on behalf of, or membership in the Union,
or any other labor organization.
(c) Threatening employees that their support for, ac-
tivities on behalf of, or membership in the Union consti-
tute disloyalty.
(d) Soliciting employees to monitor the union activities
of other employees.
(e) Threatening or impliedly threatening employees
with the loss of benefits, wages, and working conditions
if they should choose the Union as their exclusive collec-
tive-bargaining representative;
(f) Implying to employees that it is futile for them to
select the Union as their exclusive bargaining representa-
tive.
(g) Informing employees that should they select the
Union as their exclusive collective-bargaining repre-
sentative, the Union would have to bargain for the terms
and conditions of employment that the employees al-
ready have.
(h) Denying early leave privileges to employees be-
cause of, or in retaliation for, their union activities, sym-
pathies, or affiliation.
(i) Disciplining employees because of, or in retaliation
for, their union activities, sympathies, or affiliation.
(j) Suspending or discharging employees because of,
or in retaliation for, their union activities, sympathies, or
affiliation.
(k) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Linda Sconyers immediate and full reinstatement to her
former position or, if such position does not exist, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges previously en-
joyed, and make her whole, with interest, for any loss of
earnings or other benefits she may have suffered as a
result of the discrimination against her in suspensions on
April 27, 1996, and from April 22, 1997 to April 28,
1997, and in her discharge on April 28, 1997, to the date
of the Respondent’s offer of reinstatement, with interest.
(b) Within 14 days from the date of this Order, make
José Perez whole for any loss of earnings or benefits he
may have suffered as a result of his unlawful discipline
and suspension on June 11, 1996.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline
taken against Fernande Lynn Edwards on July 13, 1996,
against José Perez on June 11, 1996, and against Linda
Sconyers on April 27, 1996, and April 22–28, 1997, and
her unlawful discharge on April 28, 1997, and within 3
days thereafter, notify each of them in writing that this
has been done and that the unlawful discipline, suspen-
sions and/or discharge actions will not be used against
them in any way.
(d) Preserve and, within 14 days of a request, provide
at the office designated by the Board or its agents, a copy
of all payroll records, social security payment records,
timecards, personnel records and reports, and all other
records, including an electronic copy of such records if
stored in electronic form, necessary to analyze the
amount of backpay due under the terms of this Order. If
requested, the originals of such records shall be provided
to the Board or its agents in the same manner.
(e) Within 14 days after service by Region 12, post in
its Orlando, Florida facility copies of the attached notice
marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained by it for 60 consecutive
days thereafter in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since December 7, 1994.
(f) Within 21 days after service by Region 12, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

MEMBER LIEBMAN, dissenting in part.
Unlike my colleagues I would affirm the judge’s find-
ings (1) that the Respondent violated Section 8(a)(3) by
its written discipline against employees Fernande Lynn
Edwards and Fernando Altamirano, and (2) that it vio-
lated Section 8(a)(1) by implying to employees that it

8 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 278
would be futile for them to select the Union as their bar-
gaining representative.1
1. The Discipline. My colleagues acknowledge that
the General Counsel has met his initial burden to prove
that hostility to employees’ union activity was a motivat-
ing factor for the discipline of Fernande Lynn Edwards
and Fernando Altamirano, two admittedly prominent
union supporters. However, they find that the judge
erred in concluding that the discipline was unlawful. In
their view, the Respondent has met its burden to affirma-
tively show that the discipline would have occurred even
in the absence of the employees’ union activity. I dis-
agree.
My colleagues make two fundamental errors regarding
the judge’s application of Wright Line2 principles. First,
they mistakenly rely on the judge’s introductory com-
ment that the discipline “was not inconsistent with the
requirement of the policy set out in FAMPACT regard-
ing dinner breaks.” The judge himself concluded, based
on the crediting of relevant testimony, “that there was no
hard and fast rule for the taking of dinner breaks.” On
these facts, the judge clearly found that employees, who
were paid on an incentive basis, were granted some lee-
way regarding the permitted meal periods. The judge’s
reliance on the absence of evidence that employees were
ever disciplined for taking excessive dinner breaks pro-
vides direct support for his conclusion that there was no
such strict rule. Thus, the judge correctly concluded that
the Respondent failed to meet its burden to establish that
the employees had engaged in misconduct that could
have provided a basis to justify lawful discipline. Nota-
bly, the Respondent places no reliance on FAMPACT to
support its exceptions to this violation.
The second defect in my colleagues’ analysis is their
assumption that the existence of a relevant FAMPACT
policy, whatever it might be, suffices to establish the
Respondent’s defense. The mere showing that there was
a possibly legitimate reason for the discipline is insuffi-
cient to meet the Respondent’s affirmative Wright Line
burden. As the Board stated in Roure Bertrand Dupont,
Inc., 271 NLRB 443 (1984):

1 I join my colleagues to the extent that they have affirmed the ma-
jority of the 8(a)(3) and (1) violations found by the judge in this case. I
join Member Bartlett as to the added rationale for finding that the warn-
ing given to Edwards on July 13, 1996, violated Sec. 8(a)(3). In addi-
tion, I concur in my colleagues’ decision not to pass on certain other
unfair labor practice allegations that are duplicative of other violations.
Finally, I also agree with the dismissal, for reasons stated in their deci-
sion, of the alleged surveillance by a policy officer employed by the
Respondent who momentarily entered the election area.
2 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
Thus it is now clear that in rebutting the General Coun-
sel’s prima facie case—that the protected conduct was
a “motivating factor” in the employer’s decision—an
employer cannot simply present a legitimate reason for
its action but must persuade by a preponderance of the
evidence that the same action would have taken place
even in the absence of the protected conduct.

Accord: Westchester Lace, Inc., 326 NLRB 1227 (1998).
Here, the Respondent admittedly could not show that its
discipline was consistent with any disciplinary practice
when faced with similar misconduct. The question is not, as
my colleagues suggest, whether the record demonstrates
that the Respondent actually countenanced similar infrac-
tions. Rather, the question is whether the record demon-
strates that the Respondent would have disciplined Edwards
and Altamirano, absent their protected activity. As did the
judge, I conclude that the Respondent failed to carry its bur-
den of proof.
2. Futility of Representation. I would also affirm the
judge’s finding that the Respondent’s manager, Karen
Soyk, unlawfully implied to employees that it would be
futile for them to select the Union as their bargaining
representative. In late January 1995, Soyk conducted a
meeting with employees at which she compared the
benefit plans available to employees with what the Union
could negotiate with the Respondent for the employees.
The judge credited testimony that Soyk told employees,
“all the benefits we have in the FAMPACT will be the
same benefits that the Union will negotiate for us. That
is just like the contract the Union will get for us.” The
judge concluded that Soyk’s statement was unlawful
because it was designed to convey to employees that
there was nothing to gain by the selection of the Union,
as they would receive no more than the benefits they
were already receiving. This conclusion is fully war-
ranted and is supported by the Board’s decision in Aqua
Cool, 332 NLRB 95, 96 (2000) (statement by
Kachadurian to Tetrault that employees were unlikely to
win anything more at the bargaining table).
My colleague’s claim that there is not “the slightest
suggestion that the Respondent would not negotiate in
good faith with the Union or that the Union could not
secure a different benefits package” is inaccurate. The
majority’s conclusion that the manager’s statement was
merely a personal opinion is likewise not based on the
evidence. The facts show that Soyk made these com-
ments during a formal campaign meeting with employees
concerning the Respondent’s current benefit structure,
and that she made a clear pronouncement that “the con-
tract the Union will get for us” will reflect only the bene-
fits the Respondent currently made available to employ-
ALAMO RENT-A-CAR, INC. 279
ees. Soyk’s comments occurred in the context of some-
what more serious threats made by Shift Manager Juline
Paul the prior month, that employees would lose their
benefits if they bring in the Union, and those made by
City Manager Raja Assal earlier that same month, that
employees, “know what will happen if a union comes in,
you guys are going to lose your benefits and the union
will have to start from scratch.” My colleagues have
affirmed that these earlier threats were unlawful. In that
context, they erroneously conclude that Soyk’s state-
ments were lawful because “there is no suggestion that
the Respondent would not negotiate in good faith.” They
ignore repeated prior statements by other managers
clearly revealing that the Respondent had no intent to
fulfill its obligations under the Act to negotiate in good
faith if the employees chose to be represented by the Un-
ion. Where employees have already been threatened
with loss of benefits if they select the Union as their rep-
resentative, it also makes no sense for the majority to
assert that Soyk did not state that the Union could not
secure a different benefits package through bargaining.
Given the context, and given what Soyk did state, the
violation is clear. What Soyk did not state is no basis for
reversing the violation found by the judge.
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 vio-
lated the Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT solicit employee grievances and impli-
edly promise to remedy them in order to discourage em-
ployees from engaging in activities on behalf of the
Teamsters Local 385, affiliated with International Broth-
erhood of Teamsters, AFL–CIO, or any other labor or-
ganization.
WE WILL NOT interrogate employees concerning their
support for, activities on behalf of, or membership in the
Union, or any other labor organization.
WE WILL NOT threaten employees that their support for,
activities on behalf of, or membership in the Union con-
stitute disloyalty.
WE WILL NOT solicit employees to monitor the union
activities of other employees.
WE WILL NOT threaten or impliedly threaten employees
with the loss of benefits, wages, and working conditions
if they should choose the Union as their exclusive collec-
tive-bargaining representative.
WE WILL NOT imply to employees that it is futile for
them to select the Union as their exclusive collective-
bargaining representative.
WE WILL NOT inform employees that should they select
the Union as their exclusive collective-bargaining repre-
sentative, the Union would have to bargain for the terms
and conditions of employment that the employees al-
ready have.
WE WILL NOT deny early leave privileges to employees
because of, or in retaliation for, their union activities,
sympathies, or affiliation.
WE WILL NOT discipline or suspend employees because
of, or in retaliation for, their union activities, sympathies,
or affiliation.
WE WILL NOT discharge employees because of, or in re-
taliation for, their union activities, sympathies, or affilia-
tion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Linda Sconyers immediate and full rein-
statement to her former position or, if such position does
not exist, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges
previously enjoyed, and WE WILL make her whole, with
interest, for any loss of earnings or other benefits she
may have suffered as a result of the discrimination
against her in suspensions on April 27, 1996, and from
April 22 to 28, 1997, and in her discharge on April 28,
1997.
WE WILL, within 14 days from the date of the Board’s
Order, make José Perez whole for any loss of earnings or
benefits he may have suffered as a result of his unlawful
discipline and suspension on June 11, 1996.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any references to the
unlawful discipline taken against Fernande Lynn Ed-
wards on July 13, 1996, against José Perez on June 11,
1996, and against Linda Sconyers on April 27, 1996,
April 22–28 and 28, 1997, and WE WILL, within 3 days
thereafter, notify each of them in writing that this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 280
has been done and that the unlawful discipline, suspen-
sions and/or discharge actions will not be used against
them in any way.

ALAMO RENT-A-CAR, INC.

Dallas Manuel II, Esq., for the General Counsel.
Robert L. Murphy, John Bolanovich, and H. Eric Hilton, Esqs.
(Stokes & Murphy), of San Diego, California, Windmere,
Florida, and Atlanta, Georgia, for the Respondent.
Richard Siwica, Esq. (Egan, Lev & Siwica), of Orlando, Flor-
ida, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
consolidated case was heard before me on March 8, 9, and 10,
1999, in Orlando, Florida. The complaint as amended was
issued by the Regional Director for Region 12 of the National
Labor Relations Board (the Board or the NLRB), and is based
on charges filed by Teamsters Local Union 385, affiliated with
International Brotherhood of Teamsters, AFL–CIO (the Charg-
ing Party or the Union), and alleges that Alamo Rent-A-Car
(the Respondent or the Company), violated Section 8(a)(1) and
(3) of the National Labor Relations Act (the Act). The com-
plaint is joined by Respondent’s answer wherein it denies the
commission of any violations of the Act and asserts certain
affirmative defenses thereto. Additionally, Respondent filed at
the hearing a Motion to Defer to a Settlement Agreement in
Lieu of Further Proceedings Upon a Complaint and for Sum-
mary Judgment, which was denied by me. This motion refers
to a settlement agreement reached between the Respondent and
the Charging Party which resolved only part of the complaint
allegations which span several years and three elections and did
not require the posting of a Board notice.
On the entire record, including the testimony of the wit-
nesses and exhibits submitted and after review of the briefs of
the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits, and I find that at
all times material herein during the 12-month period preceding
the filing of the complaint, Respondent has been a corporation
with an office and place of business located in Orlando, Flor-
ida, where it has been engaged in the rental and leasing of mo-
tor vehicles, that during the past 12 months, Respondent has in
the course and conduct of its business operations, purchased
and received at its Orlando, Florida facility goods and materials
valued in excess of $50,000 directly from outside the State of
Florida, derived gross revenues in excess of $500,000, and has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent denies, and I find that at
all times material herein, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
A. The 8(a)(1) Allegations
1. December 1994 meeting of Respondent’s director of
operations, Eastern Region, Bill Decker, with former
rental agent Fernande Lynn Edwards
Facts
Fernande Lynn Edwards testified she was called into a meet-
ing with Bill Decker on December 7, 1994. (The meeting was
held in the office of Karen Soyk who is Respondent’s assistant
city manager/family wellness specialist for the Orlando facility.
Decker’s office is located at Respondent’s corporate office in
California but he makes frequent visits to the Orlando facility
which is part of his Region.) This was a one-on-one meeting.
Decker initiated the conversation by asking Edwards how they
(management) were treating her at the office. She responded
that she was being treated fine but some of the managers
needed to go back to training as they were treating the employ-
ees “real bad.” Decker then told her that there was a rumor
passed on to the corporate office by the Orlando city director,
Ed Terry, that the rental representatives were threatening to
bring in a third party. She asked what was meant by a third
party and he responded that this was a union. She told him she
knew nothing of this. He then asked her whether anyone had
approached her with a card to sign and she said no. During the
course of this meeting they also discussed an anticipated em-
ployee bonus which had been drastically reduced and Decker
explained that this was dependent on how the Company per-
formed. Near the end of the meeting, he asked her whether as a
loyal employee, if someone approached her, she would be will-
ing to let them (management) know. She told him no, she
would not do that to her coworkers. During the course of this
meeting Decker took notes. He told her that anything dis-
cussed, would stay in the room and he would not mention her
name. He also stated that he was going to get to the bottom of
it (the union campaign) because they (management) wanted
them to stay as an Alamo family.
Decker testified he traveled to Orlando frequently as it is the
largest city in his region. He testified that he was not aware of
any union activity in early December 1994, and did not become
aware of it until he received a letter from the NLRB. He testi-
fied that during the end of 1994 and the beginning of 1995, he
traveled to Orlando at least every 2 weeks in general to discuss
team leader meetings and Respondent’s open door policy and
ensure they were functioning properly but he did not attend
these meetings himself. He admits meeting with employees in
December 1994, but denies meeting one-on-one with any em-
ployee.
Analysis
I credit the testimony of Edwards as set out above, some of
which is not specifically rebutted by Decker. I found Edwards’
testimony to be specific and straightforward and truthful. Ed-
ALAMO RENT-A-CAR, INC. 281
wards was a leading union adherent who served as a union
observer during the secret-ballot election held in Case 12–RC–
7807 on April 10, 1995. I reject Respondent’s argument that
she is a disgruntled former employee whose testimony should
not be credited because she was discharged for taking a job
with the Hertz rental agency during a leave of absence from
Respondent.
I find that circumstances of calling a leading union adherent
into the one-on-one meeting and inquiring initially as to how
she was being treated and then interrogating her concerning
whether she had knowledge of the union campaign, whether
she had been approached to sign a union card and whether she
had actually signed a card, and then moving on to solicit her to
monitor and report the union activities of her fellow employees
on the basis of loyalty all combine to establish the violations of
Section 8(a)(1) of the Act as alleged in paragraphs 6(a), (b), (c),
and (d) of the complaint. I find that under these circumstances
Respondent through its agent Decker solicited grievances from
Edwards and impliedly promised to remedy them in order to
discourage employees’ union activities and thereby violated the
Act. I find the interrogation of Edwards by Decker concerning
her union activities and those of her fellow employees was also
violative of the Act. It is also clear that Decker equated union
activities with disloyalty on the part of its employees, a viola-
tion of the Act. Decker’s solicitation of Edwards to monitor
and report the union activities of her fellow employees was also
a clear violation of the Act.
2. Shift Manager Juline Paul’s meeting with
Fernande Lynn Edwards
Facts
Fernande Lynn Edwards testified that on about December
18, 1994, she was in a one-on-one meeting with Shift Manager
Juline Paul. She testified that Paul “started talking about our
benefits at Alamo, how we have good benefits and we are try-
ing to bring a union that will take away our benefits.” Edwards
asked Paul whether she had “been in a union before and she
told me no.” Edwards testified, “I said so how you know they
are going to take our benefits?” “She tell me that’s the way it
work. When a union come in, they take everything off the
table, they leave the table empty, and they start from scratch.
And we might not get what we already have.” Paul did not
testify and Edwards’ testimony is thus unrebutted. Respondent
asserts that it was unable to find Paul after a diligent search.
Analysis
I credit the unrebutted testimony of Edwards, whom I found
to be a reliable witness. While it is true as Respondent asserts
in its brief, that a statement to an employee that in a collective-
bargaining situation, employees may get more or less or the
same wages and benefits than those they already have, may be
found to be lawful, it may also be unlawful depending on the
wording and emphasis of the statement. When such a statement
is made by an employer it sends up a red flag to the employees
that they may lose their benefits or that bargaining will be fu-
tile. An employer runs the risk of violating the Act unless it is
clearly explained that the employees may obtain more or less or
the same wages and benefits than they then currently have. In
the instant case I credit the testimony of Edwards that Paul was
emphasizing and threatening that the employees would lose
their benefits. Even allowing for some breakdown in commu-
nications between Paul and Edwards, I find that the crux of
what Paul was conveying to Edwards was the employees would
suffer a loss of benefits if they selected the Union as their col-
lective-bargaining representative. As the General Counsel
argues in his brief, a “bargaining from scratch” statement can
reasonably be understood to be a threat by an employer “to
unilaterally discontinue existing benefits prior to negotiations
or to adopt a regressive bargaining posture designed to force a
reduction of existing benefits for the purpose of penalizing the
employees for choosing collective representation,” citing Tex-
tron, Inc. (Talon Division), 199 NLRB 131 (1972); Saunders
Leasing System, 204 NLRB 448 (1973); Lear-Siegler Manage-
ment Service, 306 NLRB 393 (1992). This is in sharp contrast
to the situation where an employer clearly sets out that the exi-
gencies of bargaining do not automatically guarantee improve-
ments in wages and benefits. Computer Peripherals, Inc., 215
NLRB 293 (1974); Coach & Equipment Sales Corp., 228
NLRB 240 (1977). I thus find as alleged in paragraph 7 of the
complaint that Respondent violated Section 8(a)(1) of the Act
when it impliedly threatened employees with the loss of wages
and benefits if they chose union representation.
3. Statements by City Manager Raja Assal and Shift
Manager Kevin Guarney to Fernande Lynn Edwards while
riding in a company van returning from a representation
hearing on January 9, 1995
Facts
Edwards testified that she attended the NLRB representation
hearing in Case 12–RC–7807 on January 9, 1995, and was
transported to and from the hearing by a company van driven
by City Director Raja Assal and that Shift Manager Kevin
Guarney also rode in the van. Edwards testified that on the
return to Respondent’s facility, Guarney said to her that she
was not one of them. She asked what he meant and Guarney
said he had seen her “talking to the Union people.” City Man-
ager Raja Assal then said, “. . . you knew about the Union all
along. You were just pretending.” Edwards responded that this
is a free country. Edwards testified that during one of the
breaks at the hearing she had briefly talked with Union Counsel
Richard Siwica and Danny (Pete) Peterson, who was then Un-
ion President.
Respondent contends that after diligent search, it is unable to
locate Guarney and that Assal was in Lebanon with his ill fa-
ther and unable to attend the hearing as a result. It further ar-
gues that Guarney was not named in the amended complaint,
and that the statements attributed to Guarney and Assal do not
constitute a violation of the Act.
Analysis
I credit the unrebutted testimony of Edwards as set out
above. I find that Respondent violated Section 8(a)(1) of the
Act by the statements made by Respondent’s agents equating
Edwards’ support of the Union with disloyalty to Respondent
which clearly constituted a threat to Edwards’ job security.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 282
4. City Manager Raja Assal’s discussion with Fernande
Lynn Edwards on the morning of January 9, 1995
Fernande Lynn Edwards testified that on the morning of
January 9, 1995, when she had returned from vacation, she
went to the counter to work. Assal called her and said he
wanted to talk to her. He then asked her what was going on and
told her he had heard that the employees were bringing a union
in. She initially told him she did not know what he was talking
about. He then said you have a hearing with the Union down-
town. She then said, “all right.” He then said, “[Y]ou guys are
trying to bring a Union. And you guys have good benefits and
you know what will happen if a union comes in, you guys are
going to lose your benefits and the union will have to start from
scratch. I said, well, let the people decide that. If they want a
union, let them bring a union. And he told me you know the
other companies that have union, they didn’t negotiate the bo-
nus. I said, well, if the reps want a union, they can negotiate
the bonus also. He told me I hope you know what you’re get-
ting yourself into.”
Respondent contends that Assal’s comments regarding “bar-
gaining from scratch” are not unlawful and relies on an affida-
vit filed by Assal wherein he asserted that the purpose of his
meeting was not to work any benefits or wages out of the
agreement in reference to the FAMPACT agreement prepared
by Respondent.
Analysis
I credit the testimony of Edwards as set out above. I find the
inquiry by Assal of Edwards regarding the Union was designed
to obtain information as to what the employees expected to get
as a result of union representation. I find this constituted
unlawful interrogation in violation of Section 8(a)(1) of the
Act. I also find that Respondent violated Section 8(a)(1) of the
Act by Assal’s threat that the employees would lose their bene-
fits and would have to bargain from scratch which telegraphed
the message that their benefits could be discontinued prior to
bargaining or that Respondent would take a regressive bargain-
ing posture in retaliation for their selection of the Union as their
collective-bargaining representative. Lear-Siegler Management
Service Corp., 306 NLRB 393 (1992).
5. Assistant City Manager/Family Wellness Specialist
Karen Soyk’s comments to employees regarding
bargaining in January 1995
Facts
The General Counsel, in reliance on testimony developed in
the cross-examination of assistant city manager/family wellness
specialist, Karen Soyk, contends that Soyk violated Section
8(a)(1) of the Act by her testimony that she told employees the
Company had the right to bargain over wages and bonuses at
ground zero; that “you start at a basis and you negotiation [sic]
for everything from there.” However, in her testimony imme-
diately preceding the quoted testimony, in response to the Gen-
eral Counsel who asked her if she had stated that bargaining for
rights and benefits “began from scratch?” Soyk did not admit
making that statement. Rather, she testified, “I believe I said
they could start—you—you could—I remember I used to say
you could wind up with the same, you could wind up with
more, you could wind up with less, it all depends on how nego-
tiations go.”
Analysis
I find no violation of the Act by Soyk’s testimony in the
overall context of her answers to the General Counsel’s ques-
tioning. Rather, I find she clearly testified that she presented
the alternative outcomes of collective bargaining. You can
obtain more, less, or remain the same. She did not admit using
the phrase, “bargaining from scratch.” She testified, “I think
the term I would have used is ground zero. You start at a basis
and you negotiation [sic] for everything from there. That was
my understanding.” See Histacount Corp., 278 NLRB 681
(1986).
6. Soyk’s meeting with employees in late January 1995
Facts
Fernande Lynn Edwards testified that in late January 1995,
she attended a meeting held by Karen Soyk with several
employees. During this meeting Soyk compared the
Respondent’s benefits plan called FAMPACT with what the
Union could negotiate with Respondent on behalf of the
employees. Edwards testified, “She explained that the
FAMPACT has been there and they are now bringing it to
employees. That the same benefits that we have in the
FAMPACT, we have vacation, we have medical plan, we have
401K, all the benefits we have in the FAMPACT will be the
same benefit that the Union will negotiate for us. That is just
like the contract the Union will get for us.” Soyk, who testified
at the hearing did not specifically acknowledge conducting
meetings with employees in January 1995, other than adhering
to an open door policy by responding to questions raised by
employees. Analysis
I credit Edwards’ testimony which was essentially unrebut-
ted as Soyk did not directly refute it. I find that Soyk’s com-
ments were designed to convey to the gathered employees that
there was nothing to gain by the selection of the Union to rep-
resent them as they could receive no more than the benefits
they already had under the Respondent’s FAMPACT benefits
package. Thus Respondent violated Section 8(a)(1) of the Act
by conveying to the employees the message that it was futile to
select the Union as their collective-bargaining representative.
See Child’s Hospital, 308 NLRB 340 (1992).
7. Assistant City Manager Hans Hudtwalker’s interrogation
of employee Fernando Altamirano
Facts
Former rental agent Fernando Altamirano testified concern-
ing interrogation he was subjected to by assistant city manager
Hans Hudtwalker in about March 1996. Altamirano testified
that he began to actively solicit union cards in late February or
early March 1996, and within 2 weeks of this Hudtwalker be-
gan calling him into his office and interrogating him as to his
union activities and urging him to help the Company instead of
the Union during the union campaign. Altamirano testified, “I
ALAMO RENT-A-CAR, INC. 283
used to come in and he used to just signal me to come into his
office. I stayed in his office and [sic] immediately start talking
about, you know, the Union. And he used to say, you know,
Fernando—he speaks Spanish. He’s from Peru. I’m from Ec-
uador. And in Spanish he used to tell me to (Spanish word),
stop this bullshit, its not going to take you anywhere. He said
don’t fight the company. We know that you’re a leader and
you—you should use your leadership to lead the company, to
be on the company side, and don’t fight against—no fight the
company. You’re not a follower, so we know that you are one
of the leader Unions—Union leaders.” Altamirano testified
that this occurred almost every day commencing in early March
until May 16 when he was given a written counseling review.
Hudtwalker testified in response to questions propounded by
Respondent’s attorney that he had never interrogated employ-
ees concerning their support for and activities on behalf of the
Union. He testified that he did not know who was pro Union or
against the Union. On cross-examination he testified in re-
sponse to questioning by the General Counsel that he did not
know who the union supporters were although he was the city
manager of the Orlando facility, which was the second highest
level of management at that facility. He also testified that he
did not believe that Fernando Altamirano supported the Union.
In response to a question from the General Counsel as to
whether he had any belief concerning Altamirano’s sentiments,
he testified, “No, we never talk about the Union with him, with
anyone. So there is no way for me to know.”
Analysis
I credit the specific and detailed testimony of Altamirano
which was forthright and unwavering on cross-examination
over that of Hudtwalker which was merely a denial of the legal
conclusion that he had interrogated employees. I further found
his testimony that there was no way for him to form a belief as
to Altamirano’s sentiments concerning the Union, to be unreli-
able. I thus find that Respondent violated Section 8(a)(1) of the
Act by the interrogation of Altamirano engaged in by its agent
Hudtwalker as set out above.
8. The videotaping of employees engaged in handbilling
on behalf of the Union
Facts
Former rental agent Linda Sconyers, a leading proponent of
the Union who was engaged in handbilling on behalf of the
Union while she was on suspension between April 7 and 10,
1996, testified as follows:

Q. [Counsel For The General Counsel] Now during
the time that you just referenced that you had been sus-
pended and were handbilling, do you recall seeing any-
body with a video camera?
A. Yes.
Q. Tell me about that? Who did you see with it?
A. I saw Victor Gonzales. He was—appeared to be
video-taping us while we were leafleting. He had it up to
him. He was behind the bushes, directing it to myself,
Laurie Kelly, and I believe Lynn Edwards was out there as
well. And he was outside with Karen Soyk was with him.
And he was behind the bushes. But he could see us di-
rectly. He could see us. You could tell that he could see
us.
Q. Can you describe where Victor Gonzales and
Karen Koyk [sic] were standing in comparison to where
you and the others that were handbilling stood? [Fn.]
A. Okay. He was on Alamo property, in-between
where the bus loading zone was and the employee parking
lot. He was in-between there. It was probably, I don’t
know, twenty feet, thirty feet. I really don’t know how
long it was, but it was, you know, maybe—
Q. For how long did he appear to be taping?
A. Thirty minutes to an hour. I didn’t really time it,
but I was watching him watch us. So it was probably
close to an hour.
Q. Prior to Mr. Gonzales and Ms. Soyk showing up
with the camera, what if any incidents of violence are you
aware of that took place in the handbilling area?
A. There was never any violence. Never saw any vio-
lence.
Q. Do you recall whether there were instances where
the Union efforts were blocking traffic getting into or out
of the facility?
A. We never blocked any traffic. It was—well, that,
we weren’t allowed to block the traffic. You had to pass it
out and then they had to leave or they could pull over to
the side of the road and take a leaflet and talk with us if
they wanted to.
Q. How many employees would you say passed
through the handbilling area while Mr. Gonzales and Ms.
Soyk had the camera out?
A. I would say probably—it was during a shift
change, because we were out there most of the day. So I
would say if it was during the shift change, probably fifty
or sixty employees maybe. Maybe more.

____________________
[Fn.] Fernande Lynn Edwards also testified that Victor Gonzales
and Karen Soyk were the two (2) managers who videotaped
them. [TR 623–624.]

Former employee Lynn Edwards who was also handbilling at
the Respondent’s facility testified there was no violence and no
cars were blocked by the handbillers.
The Respondent contends that the videotaping was lawful as
it had received complaints from employees that the individuals
engaged in handbilling were blocking entry of their automo-
biles as they arrived for work. Steven Raffio, Respondent’s
senior city director at the time of the handbilling testified that
as a result of the handbilling, he authorized the videotaping of
the handbilling activities by Respondent’s managers for “a day
or two, at the most.” He testified that shortly after the handbill-
ing occurred, several employees came to his office and brought
him the handbills. He testified that some of the employees
“were very upset” and told him that the individuals engaged in
the handbilling “were blocking some entry rights of the cars.”
He was aware of the need for a boundary for the handbilling
and asked the “local sheriff representative to help us define that
boundary.” He authorized the videotaping “in case we ever
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 284
needed to—to prove that there was some trespassing on our
property and therefore, causing problems entering and exit
. . . .” He never saw the tape and does not know “if we actually
completed any taping.” He testified that when he observed the
handbilling the persons engaged in the handbilling were stand-
ing about 200 yards away from the main entrance and were
standing alongside the street. He testified further that there
were no instances of violence or vandalism on the part of the
persons engaged in the handbilling.
Assistant City Manager/Family Wellness Specialist Karen
Soyk testified that she had received complaints from at least
two employees, Denise Ferrara and another employee that the
individuals handing out flyers would stand in front of the cars
to make them stop. She accompanied Sales Manager John
Poanessa with a video camera to videotape these activities on
one occasion. The videotaping lasted 5 to 15 minutes. The
parking lot was not a segregated lot, but was used by employ-
ees and visitors including vendors who also complained that
they were being stopped. She was asked to videotape the activ-
ity and she, herself, did the videotaping for a short period of
time and there was “nothing going on. There were no cars
coming or going.” They then went back into the building and
did not videotape again. The videotaping occurred after the
sheriff determined what was private property.
Analysis
I find under the circumstances of this case that Respondent
did not violate the Act. I credit Soyk and Raffio concerning the
reports they had received of cars being blocked by the indi-
viduals engaging in handbilling. I find that the videotaping was
of limited duration as Soyk testified and was a direct response
to these reports but was discontinued as soon as it was deter-
mined that no blocking of cars was occurring. I find that Re-
spondent had a legitimate interest in ensuring that its employees
and venders were not impeded in their entry to Respondent’s
premises to work and conduct their business respectively. I
credit Raffio’s testimony that he authorized the videotaping for
purposes of making a record in the event of blockage of access
to Respondent’s facility. In its brief General Counsel argues
that I should draw an adverse inference from Respondent’s
failure to question employee Denise Ferrara as one of two em-
ployees who Soyk asserted had complained of union represen-
tatives blocking traffic. However, I decline to do so as General
Counsel had an opportunity to inquire into this with Ferrara as
well but chose not to do so. The mere use of videotape is not a
per se violation and I find that under these circumstances, was
not unlawful. See Sonoma Mission Inn & Spa, 322 NLRB 898,
902 (1997), but see Randell Warehouse of Arizona, 328 NLRB
1034 (1999), and discussion of F. W. Woolworth Co., 310
NLRB 1197 (1993).
9. Solicitation of grievances by Shift Supervisor Will
Padilla-Pagan with the implied promise to remedy them
to discourage employees’ union activities
Facts
Former employee and rental agent Sandra O’Dowd testified
that shortly after the filing of a second petition by the Union to
represent the employees in March 1996, Shift Supervisor Will
Padilla-Pagan began to conduct team meetings which he held
about once a month. Prior to March 1996 she had only at-
tended “zero to one” team meeting. At these meetings Padilla-
Pagan “wanted to know employee gripes, employee complaints,
things that would make the work place better, make us hap-
pier.” Employees complained “about scheduling, at that time,
and complaints with the bonuses, and favoritism a lot and he
said that he would discuss all that with his bosses.” Initially
there were only two other employees at the meeting. Subse-
quently other departments were incorporated into the meetings,
at which management “just wanted to know the gripes and
complaints.”
Analysis
I credit O’Dowd’s testimony which was unrebutted as
Padilla-Pagan was not called to testify. I find that Respondent
through its agent Padilla-Pagan, was soliciting grievances from
these employees with the implied promise to remedy them in
order to discourage their support of the Union and thereby vio-
lated Section 8(a)(1) of the Act. O’Dowd’s testimony estab-
lishes that Respondent initiated these meetings shortly after the
commencement of the union campaign and in anticipation of
the upcoming election.
10. Interrogation of employees by Hans Hudtwalker
concerning their support for the Union and solicitation of
grievances by Hudtwalker with the implied promise to
remedy them in order to discourage union support
Former employee, José Perez, testified that he became an ac-
tive volunteer for the Union during the 1996 campaign, and
spoke with the union organizer in late December 1995 or early
January 1996, and then began handing out union authorization
cards and the managers became aware of his participation in the
union campaign. In late February 1996, Hudtwalker told Perez
that he was very disappointed with him and that he knew why.
Perez responded that it was because he was standing up for his
rights and Hudtwalker did not reply. Subsequently in March or
April 1996, Perez was called into Hudtwalker’s office for a
one-on-one meeting with Hudtwalker who closed the blinds
and door which he had never done before. Hudtwalker then
questioned him as to why the employees “were calling the Un-
ion back.” Perez told him that the employees “were very upset
about the fact that the bonuses were being changed dramati-
cally, the fact that we were asked to shuttle (move cars around
the facility) for extended periods of time, which also cut into
our income, and that the less time we spent on the counter, the
less money we made.” Hudtwalker told him that they should
all do things for the good of the Company even if they were not
in their job description so the Company could move forward.
Hudtwalker testified and did not deny having met with Perez
in his office but denied having closed the blinds. He denied
asking Perez about issues with respect to the union campaign or
having ever told Perez that he was disappointed with him.
Analysis
I credit the detailed and specific testimony of Perez who tes-
tified in a forthright manner and did not attempt to embellish
his testimony but demonstrated excellent recall of his meeting
with Hudtwalker. I reject Respondent’s contention that Perez
ALAMO RENT-A-CAR, INC. 285
was not a credible witness because he is a disgruntled former
employee discharged by Respondent for alleged dishonesty. I
thus find that Respondent violated Section 8(a)(1) of the Act
through the interrogation of Perez by its agent Hudtwalker and
Hudtwalker’s solicitation of grievances with the implied prom-
ise to remedy them in order to discourage union activities.
11. Alleged surveillance of employees’ union activities
at the Doubletree Hotel in Orlando, Florida
Facts
Sandra O’Dowd testified that she attended a meeting at the
Doubletree Hotel in Orlando, Florida, with Union Representa-
tive Laurie Kelly and two other employees, Fernande Lynn
Edwards and Linda Sconyers in early April 1996. She testified
she saw Regional Vice President Eduardo Coloma and Corpo-
rate Director Victor Gonzales in the lobby when she arrived for
the meeting. She also saw three other rental agents including
Kevin Day. The other rental agents asked her why they had not
been invited to the meeting.
Former rental agent Fernande Lynn Edwards testified that on
this occasion, she and Union Representative Laurie Kelly were
taking care of opening a room at the hotel for the union meeting
and were at the front desk of the hotel obtaining the keys to
open the room and she saw a car pull up and saw Gonzales and
Coloma taking luggage out of the trunk. Coloma came to the
desk to check in and Union Representative Kelly inquired
whether he was staying at the hotel and he replied that he was
staying for the week. Edwards and Kelly obtained the keys and
went upstairs to the room for the meeting. Neither Coloma nor
Gonzales came to the area where they were holding the meet-
ing.
Regional Vice President Coloma testified that during the pe-
riod in question he was based at Fort Lauderdale (Florida) and
frequently traveled to Orlando which was in his area of respon-
sibility. He recalls the incident when he saw Kelly as he was
checking in at the Doubletree and testified that Gonzales was
with him as he had picked him up at the airport. The record is
unclear as to the presence of the other rental agents as no party
chose to question then rental agent Kevin Day, who was a shift
supervisor at the time of this hearing when he was called by
Respondent to testify concerning another allegation.
Analysis
I find that the General Counsel has failed to establish that the
Respondent was engaged in surveillance of its employees’ un-
ion activities. The testimony of rental agent Edwards clearly
establishes that Coloma was in the process of checking into the
hotel. There is no evidence of any actions taken by Coloma or
Gonzales which would support a finding of surveillance en-
gaged in by either of these individuals. I credit the testimony of
Coloma which was unrebutted concerning his presence at the
Doubletree Hotel. I find that this allegation should be dis-
missed.
12. Alleged solicitation of grievances by City Manager Steve
Raffio with the implied promise to remedy them in order
to discourage employees’ union activities, threats by Raffio
of the loss of wages if employees select the Union as their
bargaining representative and threats by Raffio of the futility
of the selection of the Union as their bargaining representative
Facts
On about April 10, 1996, Linda Sconyers returned from a 3-
day suspension issued to her on April 7, 1996, and was asked
by City Manager Steve Raffio to meet with him in his office,
she testified as follows:

Q. [Counsel for the General Counsel] Okay. And
when you returned to work on April 10th, 1996, at any
time did you have occasion to speak with Mr. Steve Raf-
fio?
A. Yes, I did. It was at lunch time. I clocked out for
lunch. I was getting ready to go into lunch and he says do
you have a few minutes, I’d like to talk to you. I said sure.
We walked in and—and I told him, you know, I felt that
was a good opportunity for me to tell him how unfairly I
felt that I was treated, being disciplined [April 7, 1996
suspension] on something that I didn’t actually do. And
he said that he was standing behind the manager’s decision
to do that, that I was insubordinate. And then he told me
how disappointed he was with me. How he took it person-
ally. How it hurt him to see me out there passing out leaf-
lets to the people that worked out back, the shuttlers. Be-
cause I wasn’t just trying to talk to the rental agents, I
would speak to anybody, because actually the shuttlers
needed it more than we did. They were being, you know,
treated worse than what the rental agents were. So I was
leafleting to them and telling them about their rights,
where I could help, seeing if there was interest there. And
he—he just said he took it to heart and he was real disap-
pointed. He did not like that at all, you know, which made
me feel very uncomfortable, feel bad. It scared me, be-
cause I figured, oh, boy, here comes some more, you
know, because he was the city manager. He never spoke
with me hardly until the campaign started. I was there
eight years before he would, you know. Once the cam-
paign started, then, oh, Linda, come on in, I want to talk to
you.
Q. Do you recall anymore of the specifics of what you
discussed?
A. Yes. He told us that we would have to start at the
ground level. If—if a Union came in, that he would play
hardball. That they wouldn’t negotiate. That we could
lose the open door policy. We could lose our benefits, you
know. I mean it was—it was pretty scary.
Q. Was—was there any reference to your father in this
conversation?
A. Yes. He thought that my father was putting me up
to it, because my father had been a Union sympathizer
and, you know, kind of supported what I was doing. And
he said if your father is putting you up to this, you know,
you really—you should think twice. You shouldn’t be—
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 286
you shouldn’t be doing this. And I just—my father wasn’t
telling me to do it. He just was telling me to be careful,
because Alamo was a big company.
. . . .
Q. What, if any, portion of this conversation related to
problems as you saw them at Alamo?
A. Problems as I saw them? There were so many
problems with—
Q. Well, I’m just simply asking do you recall whether
any part of the conversation related to that?
A. Well, he asked me if I had any [problems with
working at Alamo]—what he could do to make changes.
And I would tell him that I didn’t have a lot of problems,
that there was other issues, like the vacation time, and sen-
iority, and—and issues that some of the employees had.
But, you know, that was about it.

Raffio was called as a witness and testified in response to
questions by Respondent’s counsel that he had not solicited
employee grievances and promised to remedy them in order to
discourage union activity as alleged in the complaint. He also
testified in answer to questions by Respondent’s counsel that he
had not threatened employees with loss of wages and benefits if
they selected the Union as their bargaining representative and
that he had not told employees that it was futile for them to
select the Union as their bargaining representative.
Analysis
I credit the detailed and specific testimony of Sconyers con-
cerning the comments of Raffio when he called her into his
office following her return from her suspension. I find that
Respondent violated Section 8(a)(1) of the Act by Raffio’s
solicitation of employee grievances with the implied promise to
remedy them in order to discourage employee’s union activities
and by threatening employees with the loss of wages and bene-
fits if they selected the Union as their collective-bargaining
representative, and by impliedly telling Sconyers that it would
be futile for employees to select the Union as their collective-
bargaining representative.
13. Alleged solicitation of antiunion support by City
Manager Steve Raffio in mid-April from employees by grant-
ing them time off and compensating them for their time to
attend employee meetings away from Respondent’s facility
where employee complaints and grievances were discussed
Facts
The evidence supports a finding that Respondent lent its sup-
port and backing to efforts by several employees who wished to
have meetings to discuss the union campaign and its perceived
adverse effect on relations among the rental agents. These
meetings occurred between mid-April and late May 1996, at the
poolside lounge of the Orlando Airport Hilton Hotel. There
were two meetings which came to be known as the
“Roundtable Meetings.” They were held by rental agents
Deneen Grove, Denise Ferrara, and Lorna Mediema. Deneen
Grove testified she met with management representatives to
discuss the meetings prior to initiating them and told them she
wanted to give the employees an opportunity to address prob-
lems without the intervention of a third party (a union). There
were approximately 50 employees at the first meeting con-
ducted by Grove and 25 employees at the second meeting con-
ducted by Ferrara. Respondent permitted large numbers of
rental agents to attend these meetings even during busy work
times in contrast to its normal practice of only permitting em-
ployees to leave early when the rental counters were not busy
according to the testimony of rental agent Sandra O’Dowd
whom I credit. Furthermore, Deneen Grove testified that Vic-
tor Gonzales reimbursed Lorna Mediema for the drinks and
food which she had purchased for the employees who attended.
At these meetings the employees discussed problems in the
workplace and after the first meeting Grove, Ferrara, and Me-
diema met with Raffio and presented a list of issues raised at
the meeting. Raffio informed them of those he could remedy
and those he could not address. Grove testified she communi-
cated Raffio’s response to the other rental agents. Linda Scon-
yers testified that Respondent’s supervisor, David Hall, urged
her to attend the roundtable meeting.
Raffio denied having reimbursed Miedema for the food and
drinks or having deviated from its practice of not permitting
rental agents to be absent from their duties on the rental count-
ers when they were busy. I credit the testimony of Grove,
O’Dowd, and Sconyers.
Analysis
I find that Respondent violated Section 8(a)(1) of the Act by
its support of these meetings which were used to foster Re-
spondent’s position that the employees did not need a third
party (the Union) to represent them. Clearly, these meetings
were designed to elicit antiunion support and interfered with the
Section 7 rights of the rental agents to determine for themselves
whether they wanted to be represented by the Union.
14. Hans Hudtwalker’s alleged solicitation of grievances
with the implied promise to remedy them in order to
discourage employee’s union activities
Facts
Linda Sconyers testified that in about mid-April 1996, Hans
Hudtwalker called her into his office for a one-on-one meeting
and “he asked me if there was anything that he could do to help
me through, if there was anything—any of the issues that I
would have. What could he do to make things better. And I
just told him I didn’t know of anything at this point.” Hudtwal-
ker testified that he has never solicited grievances or promised
to remedy them but was not questioned concerning this meeting
with Sconyers.
Analysis
I credit the specific testimony of Sconyers as set out above.
Hudtwalker’s testimony did not address this meeting and I find
her testimony concerning it is unrebutted. I find that Hudtwal-
ker’s inquiries of Sconyers were designed to solicit grievances
with an implied promise to remedy them in order to discourage
employees’ union activities and that Respondent violated
Section 8(a)(1) of the Act thereby.
ALAMO RENT-A-CAR, INC. 287
15. Alleged threat of the loss of previously enjoyed working
conditions in the event the Union became their bargaining
agent and the solicitation of employee grievances with the
implied promise to remedy them in order to discourage
employees’ union activities in late May 1996, by
Respondent’s agents
Facts
Approximately a week before the May 28, 1996 election,
Christopher Terrell, Esq., former legal counsel of Respondent,
conducted meetings with about 10–15 employees at Respon-
dent’s facility. Karen Soyk was present for Respondent. The
meeting lasted an hour and Terrell discussed the Respondent’s
benefit program, FAMPACT, and compared it with the labor
agreement at Hertz Rental Car Company with the Union in an
hour-long meeting. Linda Sconyers testified as follows con-
cerning this meeting

Q. [Counsel for the General Counsel] And can you
tell me what was said about FAMPACT and who said it?
A. Well, Chris was telling us that the FAMPACT was,
indeed, an agreement that we had through Alamo that out-
lined our benefits. It outlined our rights. But we didn’t
think that it was a contract. He kept saying it was a con-
tract. And we wanted to know where it would say that it’s
a contract, as it would say it’s a FAMPACT or a personal
agreement is what we thought it was, and it didn’t outline
in it everything to protect our rights necessarily. It would
just say you are entitled to, you know, maybe a break, or
you’re entitled to this, but it didn’t always—it didn’t work
all the times. Because if you were disciplined and you
wanted to go through the FAMPACT and appeal your dis-
ciplinary action, you never could. You could ask for it,
but it never—it never was established. Because when I
was suspended, I would ask for it. They never got back
with me. Nothing was ever done with the FAMPACT.
You couldn’t appeal.
Q. Okay. What else do you recall being said about
FAMPACT?
A. Okay. Well, he said once it’s gone, if the Union
would come in and they’d have to negotiate a different
contract, that would be gone, and you’d have to start at
ground zero, you could lose everything, and that they
would not be negotiating. We’d start at zero and once it’s
gone, it’s gone. And they wouldn’t negotiate with us, that
we would lose our benefits. We would lose the open door
policy. We couldn’t talk to the managers. We’d have to
go through shop stewards, or go through a Union member
in order to talk to our managers. We could lose our bene-
fits. We would lose 401K, dental plans. Scheduling
would have to be bid instead of regular, like we would
have regular schedules. They said you would have to bid
for your schedule, if a Union came in. That’s basically—
Q. And during this conversation, was there any refer-
ence to the Hertz Corporation?
A. Okay. That would be Chris Terrill was telling us.
And—Karen was in there listening, so I assume that it was
like a managerial meeting as well. Chris said that there
was things in the Hertz contract that wasn’t—I mean there
were things in the FAMPACT that wasn’t in the Hertz
contract, so we would —we would lose that. And he was
kind of knocking the Hertz contract, saying that they
didn’t have the things that—that the FAMPACT did, and
that Alamo was a good company, and that we should be
thankful for what we have now and not seek anything
more, because we would get less.

Terrell testified at the hearing that he told the employees that
if the Union were selected by the employees, bargaining would
start from scratch and that Respondent’s attorney would bar-
gain hard and that he discussed the give and take of bargaining
and that Respondent would seek concessions for any item that
the Union sought on behalf of the employees. He compared the
Hertz contract with Respondent’s FAMPACT and noted certain
items in FAMPACT that were not in the Hertz contract. He
recalled an employee named Linda who explained the differ-
ence between a union contract and FAMPACT which was not
negotiated with a union but does not recall what if anything he
responded to her. He denied ever having threatened employees
with loss of previously enjoyed working conditions in the event
the Union became their bargaining representative. He also
denied having solicited grievances from any of the employees
or having promised them either expressly or impliedly to rem-
edy employee grievances to discourage them from voting for
the Union.
In addition to the meeting held by Terrell, Respondent’s
primary outside legal counsel Arch Stokes held a meeting with
employees about a week later prior to the election. Former
employee José Perez testified as follows:

Q. [Counsel for the General Counsel] Tell me what
you recall of the first meeting that you attended? If you
can try to identify the time period and who said what dur-
ing the meeting?
A. Well, most of the three meetings were held, I’d
say, in the months of March, and April, May. The one that
mostly strikes me is—is the one that I attended in—in
May where there we about twenty, maybe twenty-five em-
ployees present, and talking about the FAMPACT which
had been signed a couple of months before. I don’t re-
member exactly when. And he was—Arch was talking
about the fact that he was an honest individual, and that he
represented the company, and the company was very con-
cerned about our Union activities. And then he started
talking about FAMPACT and he held up the booklet, and
said this is something that the company has agreed be-
tween the company and employees, stating all the benefits
that the employees had with respect to the company and
what the company expected from the employees in return.
And he went into some theatrics of saying, but if we all get
the Union in here, took the book, threw it on the floor, this
is all trash. We start from the ground zero and we will not
have any of that. And that if the Union came in, basically,
he would keep from any of that being accepted again. Ba-
sically, there wouldn’t be any rights whatsoever and—and
he would fight vehemently to avoid those rights from be-
ing given back to the employee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 288
Q. Was there any reference during this conversation
of his position regarding negotiating with the Union?
A. Yeah, he definitely said that he would be the one
involved with the negotiation as far as Alamo’s side and
that no way would we get what we had.

Linda Sconyers testified concerning the meeting held by
Stokes as follows:

Q. [Counsel for the General Counsel] Now who do
you recall conducted the second meeting [that you at-
tended]?
A. Yes. The second meeting was a few days later.
That was held by Arch Stokes. And it was a little bit
shorter, maybe an hour.
Q. Okay. And which managers were present?
A. Okay. In that one, there was Steve Raffio and Vic-
tor Gonzales, which sat on one side of me, and Ed Coloma
on the other side of me, which was extremely, you know,
to have the two corporate managers sitting each on a side
of you, Steve Raffio at the door, and the Arch Stokes in
the front, and then there was like six or seven other em-
ployees, rental agents in there.
Q. Where did this meeting take place?
A. That was upstairs in the training room.
Q. And what was the topic of discussion at this meet-
ing?
A. Arch Stokes was telling us that it was a contract,
that we had rights in this contract. That it is better than
what the Hertz contract is. He was making a comparison.
He was very aggressive. I—I tried to ask questions. He
would cut me off every time I’d try to ask a question. An-
other girl asked where does it say it’s a contract and he
raised his voice, said it’s—you could have a contract writ-
ten on the side of a cow. He says you don’t need—it
doesn’t have to say contract on it, but it’s an agreement.
And—and this is something that Alamo has provided for
you, so you don’t need to seek representation. And if you
do seek representation, you know, we will not negotiate.
We won’t—we won’t even come to the tables. And then
he changed his tune and said but I’ll be the one that nego-
tiates, and we will start at ground zero, and you will get
nothing. We will play hard ball. You will lose everything
and you will never get anything out of this company more
than what you have already with the FAMPACT. And he
literally threw the Hertz contract. Once your benefits are
gone, he threw it across the room, raised his voice, and I—
I finally intercepted and said why are you intimidating us?
Why—if I had any reasons to go to the Teamsters in the
beginning, I certainly have more reasons now, because I’m
being intimidated. I feel threatened, you know. I’ve got
two manager[s] on each side of me. And at that point,
Steve Raffio takes him out and speaks to him for a few
minutes, because I was on the verge of tears. He comes
back in a few minutes later and he said—he apologized.
He says I didn’t want to get that, you known, he said I’m
passionate for the FAMPACT because I wrote it and it
took me six years to put it into effect. And he says I
don’t—don’t like to see people throwing it out or discuss-
ing this in a bad way, because you have good benefits.
And it wasn’t too long after that he closed the meeting,
because he had to fly out somewhere, and he left.

Stokes testified that he had discussed FAMPACT at the
meeting he held with the employees but denied having thrown
the Hertz contract on the floor or having said he could write a
contract on the side of a cow. He denied saying in that meeting
that Alamo would not negotiate with the Union. He denied
threatening the employees at that meeting with a loss of previ-
ously enjoyed working conditions in the event the Union be-
came their bargaining representative.
Analysis
I credit the testimony of Sconyers and Perez as set out above.
I found their testimony to be cogent, specific, and in the case of
the meeting held by Stokes to be mutually corroborative. I
have considered the testimony of Terrell and Stokes and con-
clude that while their manner was mild at the hearing, it was
not in these meetings where they stressed that they would bar-
gain hard on behalf of the Respondent and that the employees
would lose existing benefits if the employees chose union rep-
resentation. I credit the versions of these meetings as testified
to by Sconyers and Perez and find that Respondent, through its
agents Terrell and Stokes threatened and intimidated the em-
ployees with loss of existing working conditions. The throwing
of the contracts on the floor engaged in by Stokes is indicative
of the intimidation of the employees that occurred at this meet-
ing. I find that this conduct as argued by General Counsel in
his brief, reasonably tended to intimidate, restrain, and coerce
employees in the exercise of Section 7 rights. I find that Re-
spondent threatened their employees with the discontinuance of
existing benefits prior to negotiations and a regressive bargain-
ing posture designed to reduce existing conditions of employ-
ment in retaliation for selecting the Union as their bargaining
representative and thereby violated Section 8(a)(1) of the Act.
See Lear-Siegler Management Service Corp., 306 NLRB 393
(1992); Taylor-Dunn Mfg. Co., 252 NLRB 799 (1980); Coach
& Equipment Sales Corp., 228 NLRB 440 (1977).
I find that General Counsel has not established that Terrell
and Stokes solicited employee grievances at these meetings by
their comparison of FAMPACT with the Hertz contract and
will recommend the dismissal of this allegation.
16. Alleged surveillance of employees on the day of
the election on May 28, 1996
Facts
Fernande Lynn Edwards, who was the Union’s observer for
the morning session of the NLRB election held on May 28,
1996, testified as follows:

Q. [Counsel for the General Counsel] Can you tell me
about that?
A. I remember it was about three hours after we
started voting.
Q. When did the polls begin?
A. 7:00.
Q. So this was about 10:00 in the morning?
A. Yeah, close to 10:00 or 10:30.
ALAMO RENT-A-CAR, INC. 289
Q. Okay.
A. A police officer opened the door. There—the
agent was leaving the polling area and the police officer
opened the door and come in. And I was not allowed to
talk. So the board agent asked him what are you doing
here? And he said he’s here for the election. And the
board agent said I didn’t call for police officer. And he
said, no, you didn’t, but Alamo hired me for the election.
And the board agent said I don’t need you and you need to
leave right now. And he left.

Edwards further testified that the Orange County’s deputy
drove away in an official police vehicle. She was familiar with
officer Fred Sams who does part-time work as a guard for Re-
spondent and it was not him. She did not know the identity of
the deputy who entered the polling area. At the hearing the
General Counsel issued a subpoena duces tecum seeking
documents to reflect the identity of security personnel retained
on the date of the election on May 28, 1996. The legal counsel
for Respondent supplied the General Counsel with information
at the hearing identifying the deputy as Paul Logan of the Or-
ange County Sheriff’s Department. General Counsel then
moved to amend paragraphs 5 and 28 of the complaint to in-
clude the name of Paul Logan. Respondent’s counsel then
moved to dismiss paragraph 28 of the complaint. General
Counsel urges that Respondent should not be permitted to bene-
fit from misinformation given to the Regional Director by Re-
spondent’s counsel Terrell during the investigation of the
charge. Terrell testified at the hearing that Sams was the offi-
cer on duty at its premises on that date. He testified further that
when he was told by the Board agent conducting the election,
he found the officer who told him that he walked into the build-
ing to check it because it was not normally occupied.
Analysis
I find that the amendment to the complaint was proper and
that Respondent’s motion to dismiss paragraph 28 should be
and it is denied. I note also that the version given by Terrell
does not square with the testimony of Edwards who testified
that the officer said he was there for the election. I credit Ed-
wards. I find that the evidence supports a finding that the offi-
cer was there to monitor the election activities. The effect of
such action was to intimidate employees in the exercise of their
Section 7 rights and Respondent violated Section 8(a)(1) of the
Act by engaging in surveillance of the election activities by the
entry into the polling area by the deputy.
17. Alleged surveillance of employees by Victor Gonzales
in a Denny’s restaurant in Orlando, Florida
Facts
According to the testimony of Linda Sconyers on April 9,
1997, she and Fernande Lynn Edwards met with Union Repre-
sentative Laurie Kelly in a Denny’s restaurant to discuss an
upcoming union campaign to organize Respondent’s employ-
ees. While seated at the restaurant, she observed Corporate
Director Victor Gonzales enter and sit at a table behind some
flowers about 6 feet away. They then cut their meeting short
and went to pay their bill and Gonzales also got up and came
behind them and spoke to Kelly and asked what she was doing
in town. Kelly replied she was there for a meeting with Hertz
to discuss a contract and offered to organize the Respondent
and he replied “no thank you.” Edwards testified that she was
then employed with Hertz and they were talking about the
Hertz contract negotiations and that she and Sconyers also dis-
cussed the employees at the Respondent. The meeting lasted an
hour to an hour and a half. She did not keep track of the time.
At some point during the meeting she observed Victor Gonza-
les sitting about two tables away from them behind some flow-
ers, a distance of about 6 feet. The meeting lasted about 10 or
15 minutes. When they were waiting to pay the cashier, Gonza-
les walked up and said hello and asked Kelly what she was
doing there and she said she was negotiating the Hertz contract.
Analysis
I find that the General Counsel has failed to establish that
Gonzalez engaged in unlawful surveillance of the participants
in the meeting at the restaurant. As the Respondent argues in
its brief, it is unlikely that Gonzalez would have appeared at a
public restaurant other than by chance. There is no evidence
that this meeting was other than a chance meeting. I find the
evidence does not support a finding that Gonzalez was engaged
in surveillance of the participants in this meeting. I will rec-
ommend that this allegation be dismissed.
B. The 8(a)(3) Allegations
1. The bathroom and break policies
Facts
The complaint alleges that in or about mid-January 1995,
Respondent changed the employee bathroom and break policy
because of its employees’ engagement in concerted activities in
support of the Union and to discourage them from engaging in
these activities. Fernande Lynn Edwards testified that prior to
the advent of the union campaign and a hearing (representation)
in early 1995, employees were permitted to take unlimited
breaks throughout their shifts dependent on the demands of the
business and without permission from management. In early
February 1995, Respondent changed its break policy or prac-
tice. Edwards testified that Shift Supervisor Terry Roudebush
announced the change to the rental agents.

Q. [Counsel for the General Counsel] Okay. How did
it change?
A. One of the managers came down one afternoon
from managers’ meeting and he said listen folks, that’s
how it’s going to be from now on, you guys are going to
have two five or ten minutes breaks[s] to go and smoke, or
drink your coffee, or go to the bathroom, and one thirty
minutes break for your lunch, and that’s it, period. And
I—I tell him, and I say when did that happen? And he
said it’s not from me, that’s from above, from high above.
Q. And who was this manager?
A. Terry Rodabush[sic]. He was a shift supervisor.

She testified that the new policy was enforced for a period of 2
weeks. She testified that on one occasion during the 2-week
period the policy was enforced, Shift Supervisor Clyde Booth
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 290
grabbed her by the hand as she was approaching the restroom
and asked her where she was going and she replied that she was
going to the restroom. He asked her if she had asked permis-
sion and she said no and he let her go.
In response to this allegation, Respondent’s city manager at
the time, Karen Soyk, testified she recalled a meeting with
Senior City Director Steve Raffio and “a couple of other peo-
ple” to address complaints by non-smokers that smokers were
taking more breaks than nonsmokers. She testified that Raffio
asked what they could do to make the break policy fair for eve-
ryone. She also testified that there was a problem with manag-
ers “having to run off of the counter to find rental agents going
to the restroom, going to the—the break room, going out back
where they smoked, to gather people up as the business—as the
customers, . . . accumulated in our lobby.” She maintained that
there had been a policy that employees needed to ask permis-
sion to go to the restroom but that it had not been adhered to by
the employees and management responded to this in January
1995 by limiting employees to two 15-minute breaks and a
lunchbreak.
City Director Steve Raffio testified that Respondent insti-
tuted a policy in the summer of 1996, to prevent the abuse of
smoking breaks by putting a dot next to employees’ names to
keep track of the number of breaks taken by employees. He
testified that nothing changed with respect to breaks in January
1995, and that he is unaware of how any limitations could be
put on restroom breaks.
Respondent called Jeffrey Willow who was a supervisor in
1995 as a witness. He testified that because of the large num-
ber of rental agents (60–70) assigned to the rental counter, it
was difficult to monitor their breaks and that breaks were as-
signed and a “little tick” would be put next to their name after
they had taken their break. He testified that the enforcement of
this policy did not depend on the employees’ union affiliation.
Supervisor Deanna Kilburn testified that the rental facility is
packed with 200–300 people on a busy day.
Analysis
I credit Edwards’ testimony which was unrebutted as
Roudebush was not called to testify. I also credit the testimony
of Soyk, Willow, and Kilburn which was also unrebutted. I
find that Raffio was mistaken concerning the timeframe when
the policy was implemented but do credit him that the focus
was primarily on smoking breaks. I find that the evidence is
insufficient to establish a violation of the Act. I find that the
sudden nature of the change coming on the advent of the Union
campaign standing alone may give rise to a suspicion of dis-
crimination but does not establish a prima facie case that the
change was a retaliatory response to the union campaign and
that Respondent violated Section 8(a)(3) and (1) of the Act
thereby. Assuming arguendo that a prima facie case of a viola-
tion of the Act has been established, I find that the Respondent
has rebutted the case by the preponderance of the evidence
based on the credited testimony of Soyk, Raffio, Willow, and
Kilburn, Wright Line, 251 NLRB 1083 (1980).
2. Alleged denial of early leave privileges to
employee Fernando Altamirano
Facts
Former rental agent Fernando Altamirano testified that rental
agents were regularly permitted by Night Shift Manager Vince
Fauci to leave work early upon request on the night shift when
business was slow. Fauci came on duty the last hour of Al-
tamirano’s shift. Preference was on the basis of departmental
seniority and Altamirano was the senior rental agent on the
shift and was regularly allowed to leave early. However in
March 1996, he told Fauci that he was a union supporter where-
upon Fauci began to regularly refuse his requests to leave early
and to call him “ugly” while permitting other rental agents less
senior than he, to leave early and responding to his requests by
saying, “[O]h no, you can’t go home, you’re ugly.” He com-
plained to Hans Hudtwalker on four to five occasions and was
assured that the matter was taken care of but this treatment by
Fauci continued. When he was issued a warning for leaving
early for lunch and he met with Hudtwalker and Soyk to dis-
cuss the warning, he again complained of Fauci’s treatment of
him but the treatment continued until he was discharged in
August 1996. Fauci was not called to testify and Hudtwalker
and Soyk were not questioned concerning this allegation. I
credit Altamirano’s testimony which was unrebutted.
Analysis
I find that the General Counsel has established a prima facie
case of discrimination against Altamirano by denying him early
leave privileges because of his support of the Union. Respon-
dent had knowledge of Altamirano’s support and immediately
after his disclosure of his union affiliation to Fauci, he was
denied early leave privileges and berated by Fauci. Respon-
dent’s animus toward the Union and its supporters has been
established. The sudden denial of early leave privileges to
Altamirano coupled with the taunting engaged in by Fauci, in
view of Respondent’s knowledge of Altamirano’s union sup-
port and Respondent’s antiunion animus clearly establishes a
prima facie case that Respondent’s denial of early leave to Al-
tamirano was motivated by its animus toward the Union and its
supporters. The failure of Respondent’s management to re-
spond to Altamirano’s complaints lends further support to the
finding of a violation. I find that Respondent has failed to rebut
the prima facie case by the preponderance of the evidence.
Accordingly, I find that Respondent violated Section 8(a)(3)
and (1) of the Act by the denial of early leave privileges to
Altamirano, Wright Line, supra.
3. The issuance of written discipline and 3-day
suspension of Linda Sconyers
Facts
Linda Sconyers was the leading union adherent, during the
course of the three union campaigns, having initiated the original
contact with the Union and having openly solicited union au-
thorization cards and challenged management agents during cap-
tive audience antiunion campaign meetings held by Respondent’s
ALAMO RENT-A-CAR, INC. 291
agents. Sconyers was employed by Respondent from November
1988 until her discharge in April 1997. She was a cashier less
than a year and then became a rental agent for the remainder of
her employment until her discharge. In November 1994, she and
Fernande Lynn Edwards and two other employees met and de-
cided to seek union representation. They met with union repre-
sentatives in November 1994, received union authorization cards
and union literature and commenced forming an organizing
committee. She attended a representation hearing in December
1994, and testified on behalf of the Union’s position in that hear-
ing. She was an observer on behalf of the Union at the election
held on April 10, 1995. After that election resulted in a loss for
the Union, she kept in contact with the Union and in March 1996,
she began to again organize on behalf of the Union, obtaining
union authorization cards, and passing out union fliers to em-
ployees on many occasions.
On April 7, 1996, Respondent’s shift manager, Deanna Zuke-
Kilburn, issued a written discipline and a 3-day suspension to
Sconyers for alleged insubordination. As a rental agent Sconyers
was required to wait on customers as they approached the counter
at Respondent’s facility. Sconyers testified,

I was renting one day and I was waiting on customers. And
Deanna came up to me and asked me to call next, which I’d
already told them, you know, called next, but whether they
didn’t hear me or whether they were just slow coming up to
the counter, I don’t know what the case was. And she came
up, she says why don’t you call next. I says I did call next.
And I says and I kind of feel like you’re harassing me, be-
cause I’ve waited on forty contracts already, because she
knew that I was involved in the Union and I felt like she was
watching me. And she says, well, make it fifty. I just said
okay, and as she was walking away, I said you need to
really be paying more attention to the people that aren’t on
the counter. And she just kind of ignored me and walked
on.

Barbara Meeker, who is employed as a rental agent by Re-
spondent and who was working at the counter a distance of a
computer away from Sconyers on this date, testified that it was
very busy and that José Perez walked by and spoke briefly to
Sconyers. Zuke-Kilburn then approached Sconyers and told her
to stop talking and call next for another customer. Sconyers said
that she had already written 40 contracts and asked her to pick on
someone else or to stop hassling her. Zuke-Kilburn replied
“[W]hy don’t you make it fifty.” Sconyers then called “next”
and a customer approached her but someone else called the cus-
tomer and Sconyers then called “next” again and went back to
renting. She testified that Sconyers had followed orders. She
further testified that Sconyers “did not ever say anything about a
need for higher pay.” She also testified that rental agent Deanna
Grove was “not working anywhere near us” at this time. José
Perez testified that on this occasion, he and Sconyers were rent-
ing and he went over to pick up a contract that was being printed.
Sconyers had just called for a customer and as he picked up his
contract they talked and were both told to keep renting by Zuke-
Kilburn. Sconyers said that she already had rented forty con-
tracts. Zuke-Kilburn said “let’s make it fifty.”
Shift Manager Deanna Zuke-Kilburn testified that there were
customers waiting and Sconyers and José Perez were standing by
the printer talking while customers were waiting and she asked
them to call “next” for the next customer in line. Perez pulled out
a contract and said that he had a customer and she said “fine,
Linda.” Sconyers said, “I’ve already written forty contracts.” I
said, “Well, you still have time to work, let’s make it fifty.”
Sconyers “turned around and said pay me more money.” “I said,
“[W]ell, if you rent more cars, you’ll make more money.” Scon-
yers then walked over to her computer. It took 30 to 40 seconds
for Sconyers to call “next” after their conversation. Shortly
thereafter Senior City Director Steven Raffio came to her and
asked her what had happened as some of the other rental agents
had complained to him that some of the employees were not
treated fairly because “they were union.” She told him what
happened “and at that point, he decided, as well as with David
(Wolfe), that this was insubordination.” Sconyers was suspended
for 3 days for insubordination.
Respondent introduced a statement that had been made by
rental agent Deneen Grove concerning the conversation between
Sconyers and Zuke-Kilburn. At the hearing she testified that she
had no recall of this conversation although she did acknowledge
having written the statement at the time. In the statement she
said, “Linda [Sconyers] was just standing behind counter and we
had four ropes of customers. Linda stated—pay me more money
and I will call next. Deanna said if you call next you will make
more money. She stated she made her money today and was
tired—she said you are still on the clock—please call next.”
Analysis
I credit the version of this incident testified to by Zuke-Kilburn
as corroborated by the memo written by Grove and find that
Sconyers did tell her to pay her more money in response to the
order to call the next customer. I find however that the issuance
of discipline to Sconyers was discriminatory and that Raffio
seized on this incident to retaliate against Sconyers because of
her support of the Union. I thus find that the General Counsel
has established a prima facie case that the discipline was moti-
vated by Respondent’s animus against Sconyers’ known union
activities and that Respondent thereby violated Section 8(a)(3)
and (1) of the Act. I find it has not been rebutted by the prepon-
derance of the evidence, Wright Line, supra.
4. The issuance of written discipline to Linda Sconyers
on May 12, 1996
Facts
Sconyers testified that on May 12, 1996, she woke up and got
out of bed shortly before 8 a.m. to get ready for work as she nor-
mally did to arrive at her starting time of 9 a.m. When she
stepped out of bed she was unable to stand on her right foot. She
called into work and went to the hospital and was off work for 2
days. Respondent issued her a written verbal discipline for not
calling in 2 hours prior to the start of her shift at 9 a.m. in accor-
dance with its policy set out in its FAMPACT employment
agreement which it has employees sign. The discipline was
signed by Deanna Zuke-Kilburn. The discipline states that she
called in at 8 a.m. and notes that her start time was 9 a.m. The
discipline notes that when she returned to work, there was a doc-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 292
tor’s note for 2 days. Sconyers testified the discipline was never
discussed with her and she was unaware of it prior to her later
termination. Zuke-Kilburn testified she has no recollection of the
discipline.
Analysis
I find that the General Counsel has established a prima facie
case that the discipline was motivated in part by Respondent’s
animus against the Union and its supporters. Respondent’s ani-
mus against the Union has been well established by the record in
this case as has its knowledge that Sconyers was a leading sup-
porter of the Union. Moreover, Sconyers testified that she had
been warned after the second election in 1996, by Raffio that if
she engaged in another union campaign, it could be crippling to
her career. I credit Sconyers’ testimony that she was not apprised
of the issuance of the written discipline at the time of its issuance
which assertion was not rebutted by Zuke-Kilburn who testified
she has no recollection of it. I find the discipline of Sconyers
under the circumstances of her medical condition was pretextual.
I find that the Respondent has failed to rebut the prima facie case
by the preponderance of the evidence and that it violated Section
8(a)(3) and (1) of the Act by the issuance of the discipline,
Wright Line, supra.
5. The discharge of Linda Sconyers
Facts
Linda Sconyers was suspended for 5 workdays on the after-
noon of April 22, 1997, by Raja Assai for refusing to shuttle cars
that morning and was told to report back to work on April 28 at
which time she was discharged by Raffio for the same offense.
As established in this record Sconyers was the leading union
advocate during three election campaigns and had been warned
by Senior Director Steve Raffio on May 28, 1996, after the sec-
ond election which the Union lost that he would not tolerate an-
other union campaign. Sconyers testified as follows:

Q. [Counsel for the General Counsel] Do you recall a
conversation—after the election on May 28th, 1996—
A. Oh, yeah.
Q. Do you recall a conversation with Mr. Raffio?
A. Yes. I had a conversation with Steve Raffio after
the election, the second time that we had lost. And I re-
member him telling me, you know, it’s going to be work
as usual, no more problems. I hope we never have to go
through another campaign. And he said that he would not
go through a third campaign. That if I had any ideas at
having a third campaign, that it would be crippling to my
career and that, you know, he would not have it. He
would not [sic] see to that.56 That’s why I was so nervous
when I found out that Joy—or Deborah Williams had gone
in there and told him everything. And then I though, [sic]
oh, boy, we’re just at the beginning of this campaign.
He’s really going to get me, you know.
Q. Now where—the conversation that you were just
referring to, how so on after the election did that occur?
A. After the second election? It was like the day after.
The day or two after. It was right after it. Because I—I
can remember going in and feeling, you know, we lost an-
other Union campaign. How am I going to be able to
work in here with these managers. It’s already bad
enough, it’s going to get worse. There had been a lot of
people talking that everybody that was a Union supporter
is going to be out of here, you know, and I just was wait-
ing for the axe. And he, basically, reinforced that, because
he told me he would never, you know, wanted to go
through another election. And he would, personally, not
go through a third election. He let—made it very clear to
me. And I remember those words. It will cripple your ca-
reer. And I though how awful. That’s an awful way to tell
somebody that’s going to cripple your career. It was just,
you know, terrible.
Q. Where did the conversation take place?
A. That was in his office. Right—right outside his of-
fice, in the front.
Q. Was anyone else present?
A. I didn’t see anyone else present, no.
____________________
56 General Counsel moved for correction of page 540, line 11 of
the transcript to reflect that Linda Sconyers’ testified that Raffio
said: “He would see to that.” This motion is granted.

Sconyers testified concerning the morning of April 22 as fol-
lows:

Q. [Counsel for the General Counsel] [Upon identify-
ing GC-14 Sconyers stated:]
A. Okay. This is the very last time that I was disci-
plined for insubordination.
A. What happened was I went in on that morning on
the 22nd. And I was asked by Fred, he was a supervisor, to
shuttle.
Q. Is his—do you know him also as Farid Giahi?
A. Yes. Yes, we called him Fred.
Q. Do you know what his position was?
A. He was a manager, I think, in the sales—sales
manager.
Q. Okay.
A. And he asked me to shuttle. I—I had just gotten
there. It was only—it was like 8:00 or 9:00 in the morn-
ing. I had just gotten there. He says I need you to shuttle.
I said okay. I had $40 in my purse. I stuck the $40 at the
bottom, because I didn’t have a locker and I put it in the
drawer, you know, at the bottom so nobody could get into
it, started walking around to go outside with Fred. I had
high heels on, a skirt, pantyhose. I told him, I says this is
really bad, I just got here this morning. I’m in high heels.
I’d really feel more comfortable if I had tennis shoes and
shorts, or, you know, it’s tough to come in, in the morn-
ings, and shuttle. I was not insubordinate, but discussing
that I didn’t really want to shuttle, but I would. I was on
my way out the door with him and he says, you know
something, Linda, I understand. I think I have enough
people. You can go back out front.50 And I did. I went
back out front, because there was a line forming, and I
started renting. I stayed out front all day, other than just
when I had my lunchbreak that day, and rented contracts
all day long.
ALAMO RENT-A-CAR, INC. 293
Q. And which, if any, part of that conversation in-
volved Mr. Raja Assal?
A. Okay. Raja never talked to me that morning. I
never even saw Raja in the morning.
____________________
50 Farid Giahi, who testified, did not directly deny that he told or
implied to Sconyers that she did not have to shuttle [Tr. 588].

Sconyers testified that in the afternoon of April 22 she was
called into a meeting in Raja Assal’s office and met with Assal,
Ginger Lovejoy-Flairty, and Jeff Willow. She testified as fol-
lows:

Q. [Counsel for the General Counsel] [After discus-
sion about whether Schacht could remain the room, Scon-
yers stated:]
A. So we sat down and he handed me this, and he
[Raja Assal] said that I was insubordinate, I didn’t shuttle
for him. And I told him, I says I never heard you tell me to
shuttle. I never had any conversation with you. And he
said yes, you know, I asked you to shuttle and you—you
did not do it for me. And Jeff Willow that was standing
there, in there, too, he’s a supervisor, said that he went like
this to me and said that—
Q. Let the record reflect that you are waving?
A. Right, he [Jeff Willow] told me that he [Raja As-
sal] was waving to me. And I said I never saw him wave
to me the whole time I just stayed out there and rented.
And he said that, you know, I was suspended. I an inves-
tigation.51
Q. Who is the he that Jeff Willow was referring to that
waved to you?
A. Jeff Willow said that Raja had waved to me, to get
my attention, to like hail me over to him, I guess, when
they wanted me to shuttle. But I never saw anybody wave
to me. And Raja, I didn’t ever [sic] have a conversation
with Raja. I had spoken with Fred earlier that morning
about shuttling.
. . . .
Q. Okay. Now between—I’ll ask you this, when did
you return to work?
A. I returned to work—
Q. Or did you return to work?
A. No, I didn’t. I had to call—I had to call them, be-
cause he said to call either himself or Karen Soyk. I be-
lieve that was on the 28th. And—
Q. Who is the he?
A. Raja Raja [sic] asked me to call him or Karen
Soyk, which I did on the day that they told me to call
them, which is the 28th.
____________________
51 Record evidence establishes that upon being suspended on April
22nd she was not permitted to return to Respondent’s facility
until April 28, 1997, a six (day period; her return was only to fi-
nalize her discharge [Tr. 547, GC-15(a-b), GC-16(a-b)]. Scon-
yers was scheduled to work five (5) of those six (6) days [Tr.
548–549].

The General Counsel points to inconsistencies in the testi-
mony of Farid Giahi who testified on direct examination as
follows:

Q. [Counsel for the General Counsel] . . . You testi-
fied that on April 7th, 1997, that Linda Sconyers—that
you had asked her to shuttle and that she refused. You
didn’t provide any specifics of that conversation on—on
direct examination so I want to give you an opportunity to
tell me exactly what you said and exactly what she said.
A. All I asked—I didn’t ask specifically to Linda.
There was a group of rental agent[s], and I asked them, I
need some shuttlers and, and Linda said she won’t do it
because she’s not properly dressed. And I just didn’t—I
didn’t say no. I didn’t say yes. I just walked straight to
my boss’s office.
Q. Where were the group of agents that you asked to
shuttle? Where were they standing?
A. They’re standing the same place behind the
counter, where the customers come in.
. . . .
Q. Okay. When you were speaking with Linda and
you—when she responded after you asked for employees
to shuttle, did she offer any explanation for why she was
uncomfortable shuttling that day?
A. When I was talking to group of rental agent, I
mean I wasn’t specifically talking to Linda, I was [talking]
to all of them. Linda told me she needs to know in advance
so she can dress properly. And her biggest thing, I think,
was her shoes is not comfortable. That is I think she said.
But she says she’s not dressed properly and we need to
give her advance notice if we are expecting her to do
something different than renting cars.
Q. Okay. And you understood that to be a refusal to
shuttle cars, is that correct?
A. Yeah.

The testimony of Shift Supervisor Kevin Day is particularly
noteworthy. Day testified on direct examination by Respon-
dent’s counsel that Raja Assal came out to the counter and said
he needed some assistance shuttling and the agents began to
disperse. Some customers began to filter through the line and
Sconyers called next. At that time Assal came back out to the
counter and said, “Didn’t I ask everybody to shuttle.” Day
responded, “You know, Linda did call next, called the next
customer up. He (Assal) walked off the counter and I went
right behind him.” On cross-examination, Day testified as fol-
lows:

Q. [Counsel for the General Counsel] Then why is it
that—
A. He [Raja Assal] asked for volunteers. He said,
well, we need to go out and go shuttle cars. He didn’t say
I need—specifically I need everybody that’s on the
counter right now to come out and shuttle.
Q. Okay. So then Linda Sconyers was not ordered to
go out and shuttle cars, isn’t that true?
A. It was more of a general, you know, I need help
shuttling cars. There were no names specifically given, I
need you, you, you, and you.
Q. And everyone other than Ms. Sconyers left to go
shuttle cars?
A. Everybody else filtered off the counter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 294
Q. And then Ms. Sconyers went to handle the very
next customer, correct?
A. She did call next.
Q. Okay. The customer needed to be serviced. You
admit that, correct?
A. Yes.

The General Counsel notes in his brief the following:

In Raja Assal’s absence, the Administrative Law Judge ac-
cepted written statements from him as an offer of proof of
what he would have testified to had he been present [Tr. 595-
596, R-37, R-38.] Assal documented the April 22nd incident
in a memorandum to Sconyers’ personnel file, dated April 30,
1997 [R-38]. Therein Assal states that after Farid Giahi asked
Sconyers to shuttle cars, she refused and he raised his hands
up and asked Linda to shuttle [R-38]. Different from any
other account, Assal states that ‘Linda walked towards me and
said I am not going to shuttle because I have a skirt on’ and at
‘at that point Linda walked away and called next to a cus-
tomer who was in line’ [R-38].

The General Counsel argues that Sconyers had been ob-
served by Victor Gonzales on April 9, 1997, in a meeting with
Laurie Kelly, International Representative for the Teamsters
Union and had held a union meeting at her home on April 16,
1997, which one of the employees in attendance informed the
senior city director of on either the next day or two based on the
testimony of Sconyers which I credit. He argues that Respon-
dent produced no evidence of prior discipline issued to its em-
ployees for not shuttling cars and notes the inconsistencies in
the testimony of its witnesses as to whether Sconyers was given
a direct order to shuttle cars. General Counsel contends that
Raffio set out to suspend Sconyers in order to stem the third
union campaign as he had previously threatened Sconyers he
would not tolerate another campaign and that this ultimately
culminated in her discharge by Assal.
Analysis
I find that the General Counsel has established a prima facie
case that the Respondent’s suspension and discharge of Scon-
yers was motivated by its antiunion animus and its attempt to
stem a third union campaign by getting rid of the leading union
supporter. I find the circumstances of this incident support a
finding that Sconyers was suspended and discharged because of
her known union activism and her efforts in leading a third
campaign. I find that Respondent seized on this incident to rid
itself of the leading union supporter. I find that the Respondent
has failed to rebut the prima case by the preponderance of the
evidence. Respondent violated Section 8(a)(3) and (1) of the
Act by its suspension and discharge of Linda Sconyers, Wright
Line, supra.
6. Written discipline issued to Fernande Lynn Edwards
and Fernando Altamirano on May 17, 1996
Facts
Fernande Lynn Edwards and Fernando Altamirano received
written discipline from Hans Hudtwalker on May 17, 1996, for
leaving the rental counter to take their dinner break without
informing their supervisor, failing to punch out for the break,
and for exceeding the 30 minutes allowed for the break. Ed-
wards testified that if business was slow and a manager was
present, the rental agents would tell the manager that they were
taking their break and that if no manager was present, they
would merely take their break.
Edwards related the events of the evening of May 15, 1996
as follows:

Q. [Counsel for the General Counsel] What happened
on May 15th?
A. We—that day we wasn’t very busy. And we were
slow for like over half an hour, and we were on the
counter talking. And I told Fernando do you want to go on
break now? It was about close to 7:30. And there wasn’t
any supervisor on the counter to ask, you know, I’m taking
my break four minutes early. So we took our break and
we went to 7-Eleven across the street, about five minutes
away. We get a sandwich to eat.
Q. Do you—did you get sandwiches out of a machine
or—
A. We get a sandwich out of the machine and came
right back.
Q. Okay. And where did you spend the balance of
your meal break?
A. In the break room.
Q. And on May 15th, 1996, did you punch out for
your break?
A. No.
Q. Why not?
A. Because it wasn’t mandatory to punch out for our
break. That’s what management told us. Because it is
taken automatically from our paid hours.
. . . .
Q. And how long did your take your break for?
A. We were back before 8:00.

On May 17th Edwards was called into a meeting with Hans
Hudtwalker and Ginger Lovejoy-Flarity and issued a written
discipline. She related this incident as follows:

Q. [Counsel for the General Counsel] Tell me who
said what during this conversation?
A. Well, when I walk in, he had some papers on his
desk. And he told me I don’t want you to think that I am
picking on you, but an incident happened on the 15th.
You took your break—he said I took my break—I took an
hour break and that is not tolerated by the company. I told
him, no, I didn’t take an hour break. I said I left close to
7:30, and there wasn’t any manager on duty on the counter
to ask if I can leave four minutes early, and I was back be-
fore 8:00 in the break room. He told me, no, that my—
rental showed that I had a rental before 7:00. I told him
we didn’t—we wasn’t busy on the counter, that’s why I
left four minutes before—before my break time.
Q. Did he say how he became aware that—of your
rental time records?
A. Yes. He said a manager told him that they couldn’t
find me, and my last rental was ten to 7:00. And I re-
phrase again to him, tell him we was not busy on the
ALAMO RENT-A-CAR, INC. 295
counter. We was not busy for over half an hour, so that’s
why.
Q. And did—do you know if he named the manager
that he had spoken with?
A. Yes. He said he talked to Michael Thompson.
Q. And do you know Mike Thompson’s position, at
the time.”
A. Yes. He was our corporate sales trainer.
Q. Did you have—on May 15th, 1996, after you re-
turned from your break, did you have occasion to see Mike
Thompson at any time for the—during the balance of your
shift?
A. Yes. He was on duty.
Q. And did he indicate in any way that he’d been
looking for you?
A. No.

Hans Hudtwalker testified he relied exclusively on Thompson’s
account of this when he issued discipline to Edwards. He ini-
tially testified it was busy that evening but later testified he
could not recall whether it was busy or slow. Respondent did
not call Thompson’s and Edwards’ testimony of the events is
thus unrebutted.
Fernando Altamirano had gone to lunch with Edwards on the
evening of May 15, 1996, and was also issued written disci-
pline for leaving the rental counter early and for failing to no-
tify Thompson prior to leaving. Altamirano testified that it was
routine to “just take 30 minutes break without clocking out . . .
because they dock us 30 minutes from our time anyways.” He
further testified there was no rule in place requiring agents to
ask permission to take their dinner break and that no such rule
was ever enforced. Altamirano testified that on the evening of
May 15 he and Edwards took their dinner break together and
left about 7:25 p.m. before their scheduled time of 7:30 p.m.
because it was slow and that they returned shortly before 8 p.m.
At the time they left there was no manager on the rental
counter. Additionally he had been working in the returns area
because it was slow prior to leaving for his break. When he
returned from dinner he heard that Shift Manager Mike Thomp-
son was looking for him. He spoke with Thompson later that
evening and inquired why he had been looking and Thompson
said, “Oh, that was not important.” Hudtwalker who was then
the assistant city director, was not involved in monitoring
breaks but testified he relied on information from Shift Man-
ager Thompson’s account. He had no independent knowledge
of the reason for the issuance of the discipline and did not have
any recollection of his conversation at the time he issued the
discipline to Altamirano. Hudtwalker had not previously disci-
plined employees for taking their breaks early, failing to clock
out or failing to notify a supervisor before leaving on a sched-
uled dinner break. As Thompson did not testify, Altamirano’s
testimony of the events of the evening of May 15 is unrebutted
except for the notes made on the report prepared by Thompson.
In the note Thompson wrote that on May 15, 1996, at 7:05
p.m., he noticed that Altamirano and Edwards were not on the
counter and searched for them to no avail. They showed up at
8:10 p.m. He asked Altamirano where they had been and he
replied, “on break.” He asked when they had gone and Al-
tamirano replied, “7:25 p.m.” Thompson said he had been
looking for them since 7:05 p.m. Altamirano said they had
been in returns. Thompson said this was not possible as he had
looked repeatedly in returns as well as everywhere else.
Thompson reports he decided not to get into a confrontation
with Altamirano who stuck to his story until he had an opportu-
nity to talk to Karen Soyk and Steve Raffio.
Analysis
I find the General Counsel has established a prima facie case
that the written discipline of Edwards and Altamirano was mo-
tivated by antiunion animus because of their support of the
Union. I find the Respondent has failed to rebut the prima facie
case by the preponderance of the evidence. I credit the testi-
mony of Hudtwalker that he made the decision to issue the
discipline to these employees after Shift Manager Thompson
reported that he was unable to find these employees for an hour
far in excess of their allotted dinner break and that they had not
asked permission of their shift manager and had not punched
out. I find that his reliance on the information received from
Thompson was not inconsistent with the requirement of the
policy set out in FAMPACT regarding dinner breaks. I do not
credit Altamirano’s and Edwards’ testimony that they were
only gone for a half-hour for their dinner break. I do not credit
Hudtdwalcker’s testimony that he had no idea whether Edwards
and Altamirano and Edwards were union supporters. It was
widely known that these two employees were in the forefront of
the union campaign. Edwards and Altamirano had been the
subject of threats for their union involvement. I credit their
testimony that there was no hard and fast rule followed for the
taking of dinner breaks. Respondent employed 70 rental agents
but produced no evidence of any employees having been previ-
ously disciplined for taking excessive dinner breaks, failing to
punch out, or obtaining the permission of supervisors prior to
taking their break. Hudtwalker, who was the assistant city
director, was unable to cite a single instance of prior discipline
issued to a rental agent for a violation of the policy. This is not
to say that there may not have been restrictions. However as
established in the record employees were paid on an incentive
basis and the record indicates, particularly with permitting early
leaves when business was slow, that there was some leeway
permitted with the lunch periods also as testified to by Al-
tamirano and Edwards.
I thus find that Respondent’s animus to the Union and its
supporters has been established in this record as has its knowl-
edge that Altamirano and Edwards were leading supporters of
the union campaign who had been warned by Respondent’s
management of adverse consequences of their continued sup-
port of the Union. These employees were the recipients of
adverse job actions by the issuance of the written discipline
issued to them shortly prior to the election scheduled for May
28. I accordingly find that Respondent violated Section 8(a)(3)
and (1) of the Act by the issuance of the written discipline to
them, Wright Line.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 296
7. Written verbal warning issued to Fernande Lynn
Edwards regarding a customer complaint
Facts
On July 13, 1996, Ginger Lovejoy-Flairty issued a written
notification of a verbal warning for a customer complaint to the
personnel file of Fernande Lynn Edwards. Edwards testified at
the hearing that she had never received the warning and had
never been apprised of it or had any discussion with Lovejoy-
Flairty or anyone else regarding the customer complaint.
Lovejoy-Flairty testified that she had no recollection of discuss-
ing the warning with Edwards but conceded that the effect of
the issuance of the warning would have been to permit accel-
eration of further discipline. The substance of the complaint
was that Edwards had pressured a customer to purchase un-
wanted insurance for her rental car although she contended she
was fully insured.
Analysis
I find that the General Counsel has established a prima facie
case that the discipline was motivated in part by Respondent’s
animus toward the Union and its supporters. Edwards was a
known leading union supporter who was the subject of threats
by management because of her union support and who had
been previously issued discipline because of her union activi-
ties. Edwards testified she never discussed the matter with
anyone and her testimony was unrebutted as Lovejoy-Flairty
had no recall of discussing the matter with her. The adverse job
action issued to Edwards under these circumstances supports
the inference that the discipline was issued to Edwards because
of her support of the Union. I find that the Respondent has
failed to rebut the prima facie case by the preponderance of the
evidence, Wright Line, supra.
8. The discipline and 3-day suspension of José Perez
Facts
José Perez, a known union activist, received a written disci-
pline and a 3-day suspension issued by Hans Hudtwalker on
June 11, 1996. The purported reason given for the discipline
was that Perez honored a Latin American rental plan which the
customer did not qualify for as he had a State of Georgia USA
drivers license. Perez testified concerning the practice and the
occurrence on which the discipline was based as follows:

Q. [Counsel for the General Counsel] I hand you
General Counsel’s Exhibit 23(a) and (b) [June 11, 1996
discipline] . . . .
A. Okay.
Q. Can you identify that document?
A. Okay. Yes, this was a reprimand that I got on June
the 11th, basically for renting a car to a customer, originat-
ing from South American, under a South America plan
code. From what I remember, it was usually not procedure
to accept that kind of a plan code under a driver’s license
originating in the United States. We had to have a driver’s
license originating from South America or international
driver’s license originating from the same country that
they are from, and they had to have airline tickets originat-
ing from that country. What I did here was basically I had
rented him a car with a driver’s license from Georgia.
And the reason I did that, because—I think it would be in
the statement that I asked him for a license from that coun-
try and he didn’t have one. So I said, well, no problem,
we’ll just go on with what we have to do. Prior to that, on
several occasions, not only I but quite a few other employ-
ees did that on normal. It wasn’t anything out of the ordi-
nary to do that.
Q. Was there any particular manager that knew that
employees were doing that and permitted them to do it?
A. Oh, yeah. Quite a few of the managers said it was
okay. There was—on this occasion, Hans told me that
John Poanessa, who was the sales manager, on some—I
don’t know how long before that he had already been
promoted to a different office, but he said it was okay to
go ahead and rent under those circumstances, and when
they didn’t have it, you couldn’t do anything about it, you
had to just go on with it and—and go on renting the car.

Perez testified concerning the disciplinary meeting with
Hudtwalker as follows:

Q. [Counsel for the General Counsel] Okay. Tell me
what was said?
A. Well, he [Hudtwalker] said that John Poanessa was
an awesome manager, very caring person, but he some-
times did things that weren’t by the book. And—and since
certain employees had asked that everything be done by
the book and that we needed to follow procedure in basi-
cally everything, we had to stop doing this from now on.
Q. Is there anymore that you recall of the conversa-
tion?
A. Well, one thing I said, well, that’s—that’s fine,
that’s hunky-dory, but I believe that at least if—if you’re
going to write me up on something like that, I should have
been at least told that this wasn’t supposed to be done any-
more, and we’ve got to write you up on it. Basically, left
it at that.
Q. How, if in any way, did Mr. Hudtwalker indicate
that other employees would be informed of your actions?
A. Oh, he—he did say that at that moment he would
inform other employees about it. And I later found out
that most of the employees were working on that shift
were being told by Ginger Lovejoy[-Flairty], one of the
other managers on—on the—in the office, that I was being
reprimanded for this very situation and that we could no
longer do that anymore.

Hudtwalker testified that he did not remember the details of
his conversation with Perez during the disciplinary meeting.
He testified he did not remember whether or not he told Perez
he was going to apply the rules more strictly. He also testified
he did not remember whether he had ever disciplined any other
rental agent for taking a driver’s license that was not consistent
with a rental plan code. He denied also that he was aware that
Perez was a union supporter.
ALAMO RENT-A-CAR, INC. 297
Analysis
I find that the General Counsel has established a prima facie
case that the issuance of written discipline and the 3-day sus-
pension to José Perez was motivated by antiunion animus di-
rected against a known union supporter. The Respondent’s
animus toward the Union and its supporters has been amply
established by the extensive record of violations found in this
case as well as the interrogation of Perez engaged in by
Hudtwalker as found supra in this decision. Hudtwalker’s tes-
timony that he did not know that Perez was a union supporter is
not credible and is rejected in its entirety. Moreover as argued
by the General Counsel, the entire tone of the conversation
wreaks of pretext and disparate application of policy against
union supporters. Hudtwalker’s reference to “since certain
employees have asked that everything be done by the book”
was a clear reference to union supporters. The sudden en-
forcement of a policy against Perez which had previously not
been enforced is indicative of Respondent’s efforts to discour-
age union activities of its employees by the issuance of disci-
pline. I find that the Respondent has failed to rebut the prima
facie case of discrimination by the preponderance of the evi-
dence, Wright Line, supra.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent violated the Act as set out in the forego-
ing decision.
4. The above unfair labor practices in connection with the
business of the Respondent have the effect of burdening com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent violated the Act, it shall
be ordered to cease and desist therefrom and to take certain
actions including the rescinding of the unlawful discipline,
suspensions, and the discharge of Linda Sconyers and the issu-
ance of written discipline to Edwards and Altamirano, the ver-
bal warning to Edwards and the written discipline and 3-day
suspension of Perez and purging the record of all references to
these unlawful disciplines. I recommend that Linda Sconyers
be offered reinstatement to her former position or to a substan-
tially equivalent position if her former position no longer exists,
without prejudice to her seniority or other rights or privileges
previously enjoyed or to which she would have been entitled in
the absence of the discrimination against her from the date of
her discharge. I also recommend that Respondent make the
discriminatees whole for any loss of earnings and benefits they
may have suffered as a result of the discrimination against
them. These amounts shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Interest shall be computed at the “short
term Federal rate” for the underpayment of taxes as set out in
the 1986 amendment to 26 U.S.C. § 6621.
[Recommended Order omitted from publication.]