Avis Rent-A-Car

National Labor Relations Board - Board Decisions

Feb 28, 1980

248 N.L.R.B. 1452 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Rental Co. d/b/a Avis Rent-A-Car and
Muriel Duffy. Case 1-CA-13490
February 28, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDAL.E
On September 18, 1979, Administrative Law Judge
Jennie M. Sarrica issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusion2 of the Administrative Law Judge, and to
adopt her recommended remedy' and her recommend-
ed Order, as modified herein.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, General Rental Co. d/b/a
Avis Rent-A-Car, Boston, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph (b):
"(b) Discharging its employees because of their
union activities."
2. Add the following as paragraph l(c):
"(c) in any like or related manner interfering with,
restraining, or coercing employees in the exercise in
the exercise of the rights guaranteed them by Section 7
of the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations of
the Act not specifically found herein.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
247 NLRB No. 188
record and find no basis for reversing her findings. We have further
considered Respondent's contention that the Administrative Law Judge has
evidenced a bias or at least an appearance of bias in this proceeding. We have
carefully considered the record and attached Decision and reject these charges
of bias alleged by Respondent as unsupported.
' The Administrative Law Judge found. inter alia, that Respondent violated
Sec. 8(a)(1) of the Act when, 3 to 4 weeks before the election. Purnell, then
Respondent's airport manager, told employee Duffy, and on a separate
occasion told employee Ricci, that each of them would receive a full 25-cent
wage increase rather than the 5-cent wage increase originally planned, because
Respondent's president. Sawyer, would do anything to defeat the Union.
However, in his brief to the Administrative Law Judge. which was
resubmitted to the Board, the General Counsel concedes that Purnell made
these remarks on only one occasion in the presence of both Duffy and Ricci.
and, while the General Counsel argues that Duffy's and Ricci's testimony is
mutually corroborative as to this one conversation, the record shows that it is
not. Given these circumstances, and the fact that the finding of such a
violation would he cumulative and would not affect our Order, we base no
unfair labor practice findings on this matter.
' In "The Remedy" section of her Decision, the Administrative Law Judge
recommended that backpay and interest be computed under the established
standard of the Board. "The established standard" referred to by the
Administrative Law Judge requires the commputation of backpay as pre-
scribed in F. Woolworth Company. 90 NLRB 289 (11950). with interest
thereon as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977) (see.
generally, Iis Plumbing & Heating Co.. 138 NLRB 716 (1962)).
' In adopting the Administrative Law Judge's finding that Respondent's
discharge of Muriel Duffy violated Sec. 8(a)(3) of the Act, we note that the
Administrative Law Judge inadvertently failed to include in her recommend-
ed Order a provision requiring Respondent to cease and desist from
discharging its employees because of their union activities. We shall modify
the recommended Order accordingly.
In par. I(b) of her recommended Order, the Administrative Law Judge
used the broad cease-and-desist language, "in any other manner." We have
considered the case in light of the standards set forth in Hickmott Food.s, Inc..
242 NLRB 1347 (1979), and have concluded that a broad remedial order is
inappropriate, since it has not been shown that Respondent has a proclivity to
violate the Act or has engaged in such egregious or widespread misconduct as
to demonstrate a general disregard for the employees' fundamental rights.
Accordingly, we shall modify the recommended Order to use the narrow
injunctive language. "in any like or related manner."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had an opportuni-
ty to present evidence and cross-examine witnesses,
the National Labor Relations Board has decided that
we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice. We
intend to abide by the following:
WE WILL NOT engage in the following conduct
in opposition to the exercise by our employees of
protected Section 7 rights and activities:
1. Interrogate our employees concerning
their union sympathies and activities, and those
of other employees, and the reasons therefor.
2. Promise, announce, or grant increases in
wages and benefits.
3. Imply promises that grievances will be
remedied, or adjust grievances.
1452
AVIS RENT-A-CAR
4. Threaten loss of benefits and more oner-
ous working conditions if union representation
should be selected.
5. Create the impression that employees'
union sympathies and activities are under
surveillance.
6. Imply threats of retaliation by discharge.
WE WILL NOT discharge our employees be-
cause they engage in union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Muriel Duffy immediate and
full reinstatement to her former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to her
seniority or any other rights or privileges, and WE
Wll.. make her whole for any loss of pay she may
have suffered as a result of the discrimination
against her, with interest thereon.
GENERAL RENTAL CO. D/B/A AVIS RENT-
A-CAR
DECISION
STATEMENT OF THE CASI
JENNIE M. SARRICA, Administrative Law Judge: This is a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended (29 U.S.C. § 151, et seq. ),
hereinafter the Act. Based on charges filed on August 17,
1977,' a complaint was issued on September 29 presenting
allegations that General Rental Co., d/b/a Avis Rent-A-
Car, hereinafter referred to as Respondent, committed unfair
labor practices within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the Act. Respondent filed an
answer denying that it committed the violations of the Act
alleged. Upon due notice, the case was heard before me in
Boston, Massachusetts, on January 30, 31, and February 1,
1978. Representatives of all parties entered appearances and
had an opportunity to participate in the proceeding.
Based on the entire record, including my observation of
the witnesses, and after due consideration of briefs and
arguments, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a Massachusetts corporation with principal
offices at 209 Columbus Avenue, Boston, Massachusetts,
and several facilities, among others, located at Logan
Airport, in the county of Suffolk, Boston, Massachusetts, the
facilities involved herein. It is admitted that Respondent's
annual gross volume of income derived from its rental of
automobiles exceeded $500,000; Respondent annually pur-
chased automobiles and other goods valued in excess of
$50,000 directly from points located outside Massachusetts
or from points within Massachusetts where said products
originated outside Massachusetts; and Respondent annually
provided services in excess of $50,000 to customers from
locations outside the Commonwealth of Massachusetts.
Respondent admits, and I find, that at all times material
herein, it is and has been engaged in commerce within the
meaning of the Act.
II. THE ABOR ORGANIZATION
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge 38, hereinafter called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
ll. THE Al LEGED UNFAIR I.ABOR PRACTICES
A. The Issues
1. Whether, in violation of Section 8(a)(1), Respondent's
management officials engaged, one or more times, in the
following unlawful conduct:
(a) interrogation of employees concerning union sympa-
thies or activities and/or the reasons therefor;
(b) threatened discharge and/or more onerous working
conditions for engaging in union activity or if the Union
were selected as representative;
(c) made or implied promises that grievances would be
remedied, and promises or increased wages and benefits
during the Union campaign;
(d) announced and granted additional benefits and wages
during the Union campaign; and
(e) created the impression that employees' union sympa-
thies and activities were under management surveillance.
2. Whether Respondent discharged Muriel Duffy for
reasons related to her union sympathies and activities in
violation of Section 8(a)(3) of the Act.
B. Background
It is alleged in the complaint and admitted by Respondent
that at all times material herein the following named persons
occupied positions set opposite their respective names, were
part of management, and were agents acting on behalf of
Respondent, as well as supervisors within the meaning of
Section 2(11) of the Act: George Purnell, manager, Logan
Airport facility and/or vice president of operations; John
Guaragna, assistant vice president; Josephine Stevens, assis-
tant manager, Logan Airport facility and/or manager,
Logan Airport facility; Arlene Vargo, office manager; and
Carol S. Parks, executive vice president.
Additionally, the record reveals that William Kingsbury
was, during the time material herein, one of six station
managers who, when working the 3:30 p.m. to midnight or
' All dates are in 1977, unless otherwise indicated.
1453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
midnight to 8 a.m. shift, was called a shift manager and was
on the lowest rung of the managerial hierarchy.! He also
was, for I week in August, the acting airport manager in
Stevens' absence. His experience with Respondent was as a
service agent, cleaning, fueling, and transporting cars to and
from customers. Frank Sawyer is the owner of the franchise
from Avis Rent-A-Car and president of the franchise as well
as chairman of the board of General Rental Company.
During the period immediately preceding most of the events
herein Roy Hood was vice president of operations.
The Logan Airport facility consists of five separate sales
counters located at various airline terminals and a so-called
check-in counter where rented cars are returned and where
the district offices, including the airport manager's office.
switchboard, and timeclock are located. Respondent also
operates a shuttle-bus service for customers' use between the
terminals and the check-in station. Rental agents are
assigned to these six counters on a weekly schedule made up
by the airport manager, who also shifts them from one
counter to another as needed. They move between terminals
and to and from the check-in station by means of the
company-operated shuttle bus.
There are approximately 38 rental agents of Respondent
assigned to the Logan Airport facility. Respondent has a 3-
week training period and requires that employees be able to
deal with the public in a "professional type manner,"
extending courtesy at all times "with the understanding that
the customer is the reason they are there." If an employee is
unable to perform in this manner it usually would have
become apparent within the first 90 days and that employee
would have been terminated. Discourtesy is regarded as a
more grievous offense than requiring a customer to wait, as
circumstances may require the latter even though the agent
is performing the job properly. Under the written company
policy, discourtesy does not, however, require automatic
discharge. Verbal or written warnings may be given "de-
pending on the degree of the offense." Purnell testified that
Respondent receives over 25 complaint letters a year, which
includes those relating to policy and operations as distin-
guished from employee performance.
Upon receipt of a complaint letter, the procedure is to
investigate to determine precisely what happened and who
was involved, meanwhile pursuing the letter-writing ap-
proach directed toward placating the irate customer. An
effort is made in the investigation to determine the flight
pattern at the time, the location of the incident, and who was
then working near the location, matters which can be
obtained from the work schedules and other official records.
The individuals involved, or in proximity to the incident, are
interviewed for their recollection concerning the situation set
forth in the complaint. If the complaint involves discourtesy
by a rental agent, the rental contract is also located to
identify the employee who handled the transaction, and that
individual's version of the event is obtained as well as the
II was stipulated herein that in the concurrent representation proceeding
all parties agreed that rental agents classified as supervisors, and presumably
that service agents (those who serviced automobies) classified as foremen,
were not supervisors within the meaning of the Act, but were group leaders.
Their status did not become an issue i this proceeding. It is noted that the
airport manager position was also known as district manager and that there
was a service manager under Stevens who was not illvolved in the events
herein.
recollections and observations of other employees present at
the time.
For a number of years, Respondent has automatically
granted, effective in June of each year, the benefits awarded
to represented employees as reflected in the Hertz union-
negotiated contract which was effective on April 21 of each
year. ' In 1976 the Hertz union contract was not completed
until August 5, but was made retroactive to April 21. It was
a 3-year contract which provided for additional yearly wage
increases on each April 21 during its term. Following this
agreement, Respondent gave a raise to its employees
effective August 25, 1976, instead of retroactive to June,
which would have been the wage-raise anniversary for its
employees.
Parks became executive vice president in December 1976
and during January and February held meetings with
employees in which it was made known to Respondent's
management officials that employees felt they should receive
the wages and benefits provided for Hertz employees under
the existing contract. Testimony establishes that Respondent
obtains a copy of the Hertz union contract each year as soon
as it has been executed and printed. Purnell testified that
Parks, herself, examined a copy of this contract in early
February and that after the February meeting, by referring
to this contract, he confirmed the employees' assertions
concerning the scheduled Hertz employee raise effective
April 21. A copy of the Hertz union contract executed
August 5, 1976, in evidence, bears at the top the handwritten
legend "Discussed March 10, 1977". On the basis of the
testimony herein, and in the absence of evidence to the
contrary, I conclude that this notation was made by Parks
after a management discussion of the request by its employ-
ees. I also presume that Respondent had this Hertz union
contract in its possession since the printing thereof some
time between August 5, and August 25, 1976, when
Respondent granted to its employees the raises initially
provided therein.
Also in December 1976 it was discovered by Respondent's
officials that the personnel department had inadvertently
granted a 4-year tenure raise to some eight employees on the
employment anniversary date of each, whereas Respondent's
wage policy provided for employees to reach the top rate of
their job classification upon completion of 3 years of service.
Purnell, who was then airport manager, presented the
matter to Roy Hood, vice president of operations, who after
conferring with Assistant Vice President Guaragna, decided
to rectify the error by withholding from those individuals all
or part of their anticipated June raise. This action would
allow for recovery of monies erroneously paid and would
place them back at the 3-year scale. Management's decision
on this matter was conveyed to the individuals involved at a
meeting held in Purnell's office in January by Frank
Mackey, personnel director, who explained that if the June
raise amounted to 25 cents they would receive only 5 cents
an hour. Muriel Duffy, a rental agent with around 5 years of
'The Hertz Corporation agreement with Teamsters Local No. 841 covered
rent-a-car stations located in the Boston, Massachusetts. area and applied to
counter agents, counter agent group leaders, utility representatives. counter
agent trainees, oce clerical employees and reservationists. classifications
comparable to those of Respondent's employees.
1454
AVIS RENT-A-CAR
tenure with Respondent and one of the employees affected,
protested this decision, asserting that there had to be
someone she could call or something she could do about this.
Duffy contacted the Union in February. It was also Duffy
who passed out union authorization cards, who held union
meetings in her home, and who was the union election
observer. The last preceding union campaign at Respon-
dent's operation took place in 1960. During the current
organization campaign Duffy was in daily telephone contact
with the union organizer. Union representatives first ap-
peared at Respondent's gates distributing literature near the
end of February. The two front gates as well as the rear gate
were utilized by the Union for this purpose. The front gates
are visible from the airport manager's office, and the rear
gate is visible from the check-in station. Stevens and Purnell
admitted that they saw the union organizers passing out
leaflets at the gate when this began, and Purnell testified that
some of their literature was placed on his desk on March 9.
Purnell also admitted that he knew of Duffy's involvement
in the union campaign' about a month before the election,
which took place on May 11.
C. The Alleged Violations
1. The 8(a)(1) conduct
Respondent posted, on or about the date thereof, at
various places including inside the door to the ladies' lounge
and by the timeclock, the following memorandum:
March 29, 1977
To: All Rental Station Personnel
Please be advised that after many management
meetings, concerning the well being of our many fine
employees, we are pleased to announce that the follow-
ing increased benefits will be effective April 24, 1977.
I. Wages:... (details and scales omitted) ...
2. We have increased your paid holidays from ten
(10) to eleven (11) to be awarded to each employee on
their birthday.
3. Those employees with three (3) or more years of
service will be able to receive their sick leave without
accrual.
4. A payroll savings plan through United States
Savings Bonds will be made available to all interested
employees. /s/
Carol S. Parks
Executive Vice President
The context, noted in the background above including the
timing, as well as the content of this memo, presents a clear
picture of unlawful motivation. Thus, the February indica-
tion to management officials by employees that they felt they
Purnell attributes his knowledge to an incident when an employee named
Ingrid Mondi, who was classified as a supervisor., came to his office and asked
whether she would be eligible lo vote in the election. By that time it had been
decided that those employees were not supervisors within the meaning of the
Act (see fn. 2, supro), so he told her "yes." She then wanted to know why she
was never invited to union meetings at Duffy's house. In this respect Duffy
testified that the two union meetings held at her home took place in April and
that Mondi was in attendance. The record does not establish when the
stipulation to include "supervisor" classifications in the voting unit took
should receive the benefits provided and the wage increases
scheduled to take effect April 21 in the Hertz union contract
was followed closely by the appearance of union organizers
at the gate. This sequence, no doubt, alerted management to
a possible cause and effect relationship. The Union's initial
distribution activity was observed by Respondent's officials
who admittedly interpreted it as evidence of employee
dissatisfaction.' Then, the receipt of union literature left on
Purnell's desk on March 9 immediately preceded the
recorded management discussion of the Hertz union con-
tract on March 10. This was followed by the above March 29
announcement granting the wage increases due under the
Hertz union contract, along with the other added benefits.
I also find it significant that the wage increases for
Respondent's employees were made effective in April in-
stead of in June, as Respondent historically had done, even
through the Hertz union raises took effect annually on April
21. Clearly, statements of Respondent's management offi-
cials made in December and January, in conveying their
resolution of the problem concerning the erroneous 4-year
wage scale, reveal that management officials also anticipated
raises for Respondent's employees effective in June. Further,
the advance of the effective date of the wage increases is
noticeably in contrast to the failure of Respondent, in 1976,
to grant the Hertz union contract wage increases to its
employees effective retroactively to June. I conclude that the
change of effective date from June to August 1976 does not
diminish the significance of the traditional June wage-
increase date for Respondent's employees, but rather sug-
gests Respondent's inclination to manipulate the effective
date of any wage increase to its own most favorable use.
Here, had Respondent merely followed its own practice, the
Hertz union-contract benefits would not have been forth-
coming until after a Board-conducted election. I must
conclude that Respondent accelerated the announcement
and the effective date of the wage increase and added
benefits in order to influence employees during the election
campaign. Accordingly, I find that the timing of the
announcement and the effective date of the wage increases
and other benefits were intended to interfere with the
exercise by employees of their Section 7 rights and consti-
tuted interference, restraint, and coercion within the mean-
ing of Section 8(a)(l) of the Act.
Duffy testified that in March, about a week before this
announcement was posted, Purnell told her that employees
would receive their raises and certain added benefits,
including their birthday as a holiday and a favorable change
in the way sick-leave benefits would be made available. He
indicated that a written announcement of this was still at the
Columbus Avenue office, but "would be over shortly," and
asked Duffy to inform "the girls" of these forthcoming
benefits. Purnell denied that he informed Duffy of the
place. Howeser I regard this testimony as a sufficient admission of knowledge
with respect to Duffy's activity role in the organizational efforts well before
she was discharged.
Stevens estified that, after Park's second meeting with employes but
before she saw the union organizers at the gale. Hotid had a meeting with
Purnell and her in which he told them. "These are problems that I want
squared away." One of the problems mentioned was "connmmunication."
Purnell did not testify to such a meeting
1455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision to grant the raises and added benefits in advance of
the written announcement.
Duffy further testified that thereafter, while she was
working at the Delta terminal counter, Purnell and Guarag-
na, assistant vice president, engaged her in a conversation in
which Purnell asked her whether she "knew the feelings of
the girls in regard to the Union." Duffy indicated that she
did not, but that she personally felt it was unfair that she was
not getting all of her money. Purnell admitted having a
number of conversations with Duffy relating to her "errone-
ous pay scale" and specifically recalled one on the day after
the benefits announcement was posted. At that time Duffy
asked him how it was going to affect her, and he informed
Duffy that "the December decision still stands" and al-
though the announced raise was 25 cents she would get only
5 cents. However, Purnell denied making the inquiry
attributed to him by Duffy concerning how other employees
regarded the Union.
In this same conversation, Duffy testified that Guaragna
followed her comments with the statement that if the Union
got in, the night girls coming on to the day shift would bump
her and she would not get her weekends. Duffy told
Guaragna that she knew this and was willing to sacrifice.
Purnell denied being present at any conversation between
Guaragna and Duffy in which night-shift employees were
mentioned. Guaragna, who is no longer employed by
Respondent, testified that he did not talk to employees about
matters relating to employment for the period beginning
after Respondent received notification of the Union's repre-
sentation petition until the evening following the election
because he did not wish to influence the employees in any
way.'
Marcia Ricci, a rental agent of Respondent for some 5
years, testified that 3 or 4 weeks before the election, while
she was working at the Delta terminal counter, she asked
Purnell what would happen in management if the Union
were elected. Purnell replied that "they probably would
make a clean sweep of it" and that he had already lined up a
job with Avis, Inc. Purnell then told her that Sawyer would
do anything not to have the Union and he would buy the
Union if he had to. Ricci asked Purnell if this meant that she
would get her 4-year raise. Purnell told her she would get
anything she wanted. Purnell denied having this entire
conversation with Ricci.
Duffy also testified that about 3 weeks before the election
Purnell and Stevens approached the American Airlines
terminal counter where she was working; Stevens took her
place at the counter while Purnell took her to the seating
area of the airline a short distance away for a conversation.
At that time Purnell told Duffy that she was going to get her
money, (i.e., the full 25-cent raise instead of the 5 cents
previously proposed to correct the error in pay scale). Duffy
asked whether this meant "all of it" and "the rest of the
girls, too." Purnell replied that Sawyer said it was a lot of
money, but she should not "worry about it. You'll get it. Mr.
Sawyer does not want to take a union in and he will give you
anything you want right now." Purnell added that Sawyer
' By agreement of the parties, Guaragna testified before presentation of the
General Counsel's case, and his denials otherwise are of a general nature using
statutory language and that contained in specific sections of the complaint.
The beginning date of his denials is not fixed, as the record herein does not
would buy the Union if he had to and if the Union got in he
(Purnell) would be out of a job.' Purnell admitted informing
Duffy she would receive the full pay raise, but denied that he
made the other statements attributed to him in this conver-
sation.
Purnell supplied the information that when Sawyer
returned from Florida and conducted a management meet-
ing on April 6 he was aware of the union organizing
campaign-the union representation claim had been re-
ceived, and the March 29 announcement of increased wages
and benefits had been made. Sawyer inquired as to why
employees were still dissatisfied, and Purnell told him of the
erroneous 4-year pay scale and of the nature of the
management decision to correct it and recover mistaken
payments. After ascertaining that the error was one made by
management, Sawyer ordered a reversal of the correction
and recovery decision, and Purnell conveyed this informa-
tion to the employees involved.
Mary Jane Howe, a rental sales agent of Respondent for
nearly 10 years, testified that several weeks before the
election, as she was going home, Stevens summoned her into
the office and posed to her the question-if she were going to
vote "yes" in the election, what would her reason for that
vote be. Howe informed Stevens that she was not a union
organizer, but if she were to vote "yes" it "would be because
of retirement." Stevens then asked Howe why she had
walked out of a meeting a few weeks earlier. Howe testified
that this reference was to a management meeting in which "a
night employee . . . was saying the bad things that could
happen about a union" and during which six or eight of the
employees got up and walked out. Stevens denied having
such a conversation with Howe.
Ruth Clasby recalled that about a week before the
election, in the presence of Howe at the Delta terminal
counter, Stevens asked Clasby why she was voting "yes."
Clasby asked Stevens whether she had to answer the
question. Stevens said, "No, . . . but I would really
appreciate it if you did." Clasby then told Stevens she was
voting "yes" because of "weekends." Stevens told Clasby
that the weekend practice of Respondent could be changed
and that she would have a "talk with some of the girls about
it." Stevens denied making these statements.
The foregoing testimony which covers several separate
incidents has been grouped together because of the interrela-
tion of the events. Considered as a whole, it reveals a pattern
which is entirely consistent with what I have found to be
Respondent's motive in announcing and establishing the
effective date of the increased benefits. Thus, admittedly,
Sawyer was concerned on April 6 about the continued
interest of employees in the organizing campaign or, as
bluntly stated, the continued "dissatisfaction" of the em-
ployees. And, as soon as a source of dissatisfaction (i.e., the
decision concerning the 4-year scale) was identified, he
ordered it eliminated. By immediately remedying an identi-
fied grievance and by making it obvious that Respondent's
president wanted to ferret out information as to the source of
any other dissatisfaction or cause of interest in union
reflect the date the representation petition was received by Respondent except
that this was before April 6.
Initially Duffy placed the comments concerning Sawyer with the March
conversation but later clarified the context and lime.
1456
AVIS RENT-A-CAR
representation by its employees and eliminate it (I note that
5- and 10-year tenure scales were established in June), top
management set the pattern for other officials to combat the
Union. Stevens' inquiries of Howe and Clasby are consistent
with an effort to fulfill the foregoing management objectives,
and I do not credit her denials with respect to those
conversations.' In these incidents I find that Respondent
engaged in interrogation of employees concerning their
union sympathies and activities and the reasons therefor, as
alleged in the complaint, and in the conversation with
Clasby, implied a promise to remedy a grievance by
changing company policy, in order to remove the cause for a
"yes" vote, all in violation of Section 8(a)(l) of the Act.
To the extent that there is a conflict in the testimony of
Purnell and Duffy, I credit Duffy. Her explanation as to
what she was told about the forthcoming sick-leave benefits,
for example, is more sophisticated than the information
available from the announcement alone and lends credence
to her having had access to a source of deeper comprehen-
sion as to how the benefit would be applied. This alone does
not establish that that source was Purnell. However, there is
no proof that she was in error or that she had any other
source. Further, her testimony, that Purnell was "a very
blunt and forward person" and that their acquaintance
existed dating from common employers "back a long way to
the other car rental" companies preceding Respondent, is
not contradicted and is a reasonable explanation for the
admitted frequency and openness of his remarks to her.
Further, she did not tell him of her leadership role in
bringing about the union campaign, and Purnell claims not
to have known of her interest specifically until he was
approached by Mondi in April.9 An attempt to use this
longstanding acquaintance to enlist Duffy in furthering
Respondent's opposition to the Union would be consistent
with other testimony indicating that Respondent relied
heavily on selected employees for their antiunion influence."'
Finally, neither Duffy nor Ricci had any reason to know
what took place at the April 6 management meeting, but
their reports of the conversations with Purnell are entirely
consistent with a reasonable interpretation Purnell might
justifiably make of Sawyer's determination to avoid dealing
with the Union at all cost. For these and other reasons
reflected in the record, I do not credit Purnell's denials.
Accordingly, on the basis of the foregoing, I find that
Respondent during the union campaign unlawfully adjusted
grievances; made promises of increased wages and benefits;
interrogated employees concerning the union sympathies or
union activities of other employees; threatened loss of
certain benefits or more onerous working conditions if the
Union were selected as representative; and implied promises
of additional benefits to avoid dealing with the Union all for
the purpose of interfering with the Section 7 rights of its
employees, in violation of Section 8(a)() of the Act. I do not
find in these conversations a threat of discharge, as I view
Purnell's remarks to Ricci and Duffy concerning his own
' Stevens' efforts to "square away" the problem of "communication" (see
fn. 5. supra ) in this manner apparently was a continuing one, for it is
undenied that about a week after Duffy's discharge, treated infra. she asked
Ricci what the general feeling "among the girls" was with respect to Duffy's
discharge and was told, "the Union."
See fn. 4. supra.
" Particular reference is to the "night employee" whom other employees
employment situation if the Union came in, limited to a
"management" clean sweep which could in some circum-
stances imply more onerous working conditions for employ-
ees but not threats of employee discharges.
On May I , by prearrangement, a group of employees
went to the lounge in the Logan-Hilton hotel located at the
airport to await a report of the election results from Duffy,
who was acting as the union observer. There, after Duffy
arrived and reported the Union's loss, they were joined by
Purnell and Guaragna who came together, and later by
Eileen Vargo, the office manager. According to Duffy, at
one point in the conversation that ensued she asked Purnell
"what am I-the queen of the latrine, now?" Purnell said
"No." He then commented, "We know just about everybody
that was a 'yes' vote for the Union." One of the employees
asked Purnell how he knew, and Purnell stated that
"management had gotten together and gone over the list of
employees and concluded how each had voted." He also
expressed surprise at the closeness of the results and
commented that Sissy Delaney (the employee who acted as
Company observer at the election) had not pulled the weight
that management had anticipated. Ricci recalled Purnell's
statement that management went down the list and figured
out "who would have what to lose by voting (for or against
the Union)."
Duffy also testified that during the course of the evening
Arlene Vargo looked at her and said: "You fool! You went
out on a limb and when you look back there's not going to be
anyone behind you." Ricci recalled that Vargo told Duffy
she was a fool for sticking her neck out, that she was now
out on a limb, and she was going to be out there all by
herself because she had more or less declared herself. When
Vargo could not seem to get her point across to Duffy she
stated, "You, you're on your way out, and if the Union had
got in you would have gone on the night shift." Vargo
denied telling Duffy that she was a fool and on her way out.
Purnell remembered that Duffy had commented she
would probably be fired now, to which he replied, "No
ma'am, no way." Other than the fact that "we were relieved
it was over," Purnell testified that he could not recall details
of that evening's conversation. However, he denied stating
that Sissy Delaney had not carried the weight expected, or
that he or Guaragno said that the Company had figured out
who would have what to lose by the way they voted, or that
he told Duffy he knew how everyone would vote. He
admitted saying that he was surprised at the results, that the
Company had a close call, and that he had not thought that
many employees felt they needed a union to represent them.
On May 12 Howe had a conversation with Stevens in the
coffee shop at Stevens' invitation. It concerned a personal
matter regarding Howe that Duffy had related to Stevens the
previous evening at the Hilton. Stevens asked Howe why she
had not mentioned her personal medical problems. Howe
stated she had not done so because of "the friction" in the
thought had been planted by management to speak against the Union at the
meeting referred to by Howe which precipitated the group departure, and to
Sissy Delaney, referred to in testimony relating conversations in the nature of
post-election evaluations. These took place at the Logan-Hilton lounge
following the determination of the election results on May I1, at which
Purnell commented that she had not carried the weight in the voting that
management had anticipated she would.
1457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
past few weeks. Stevens then stated she was glad it was over
and that she knew that Howe was a "strong 'yes' vote."
About a week after Duffy was discharged, Ricci was in the
airport manager's office speaking with Stevens. Stevens
asked Ricci what the general feeling was among the girls
with respect to Duffy's discharge. Ricci replied "the Union."
Stevens made no further comment.
In an election postmortem of this nature it would not be
surprising to find innocent comments misinterpreted or
individuals becoming careless with their analysis and the
expression of opinions. Therefore, but for the earlier conduct
of Respondent's officials and their subsequent remarks and
continuing solicitation of opinion or pulsetaking, one might
be disposed to dismiss such comments as insignificant.
However, here company officials had made an effort
through interrogation to learn how individual employees
would vote and the reasons for their individual preferences,
as well as their reasons for certain observed concerted
action. Thus management was able to pool the information
gathered and ascertain what the motivating factors in the
voting would be so that it could make projections as to how
each employee would vote and the probable results of the
election. Purnell's admitted expression of surprise would
indicate that he held some firm notion as to what the
election outcome would be and by what margin. In these
circumstances, I credit the mutually corroborated testimony
of Duffy and Ricci, finding in the variations of their
paraphrasing a common thread which, together with the
credited testimony of Howe, indicates that Respondent's
officials conveyed the idea that they had been gathering and
pooling information concerning union sympathies and activ-
ities of Respondent's employees. Perhaps this type of
pulsetaking and comments concerning the effectiveness of
Respondent's intelligence gathering is as much an unlawful
conveying of the impression of surveillance as out-and-out
ArAn individual who identified himself as William J. P. Whicker testified
that he is al executive with International Communications Systems of
Wheaton, Maryland. He identified the Ais car rental contract containing
information that he received a car at the Logan Airponrt Boston. at "01 JUL
77/2345" and returned it to the same location 04 JUL 77/1(130" using an
Avis "Direct Billing" charge. He also identified the letter, which has no
letterhead. as one he wrote, stated he obtained the name of the employee
referred to therein from a small nametag she was wearing, and, admitted that
he made no attempt at the time to protest his assertedly discourteous
treatment on July 4. He further testified that he was not contacted by any
representative of Avis for details of what had occurred until he was contacted
by Respondent's attorney shortly before the trial herein. On cross-examina-
tion he admitted that he had received the letter from Respondent dated
Augst 15. which similarly is not on letterhead stationery. advising him the
employee complained of in his July 18 letter had been terminated. Thereafter
he received a call from "a young lady" verifying that he was the author of the
Jul) 1 Itter and asking whether he received the August 15 reply "from
Avis" stating that the offending employee had been discharged. Whicker
testified that he decided to write the complaint letter upon his return to
Washington. his destination on July 4. However, the letter in question is dated
14 days later. It is noted that the complaint letter is presented in generalities
except that it asserted he had to wait to check his car in while "Muriel" had
her "coffee and danish." In the letter he characterized her as exhibiting a
"discourteous. short. curt and downright unpleasant" attitude. while directing
most of the letter in praise of Avis and its services generally to a degree that
would be a press agent's delight. I have not considered the inferences
contained in the letter in contrast to the testimony of Whicker as to what
actually occurred in view of the evidence establishing that Respondent took
no steps to investigate and ascertain precisely what those generalities were
hased on before it took the discharge action considered herein.
': Duffy testified she knew of a customer complaint letter involving Katie
Nolan in which another agent had been erroneously named. The letter was
declarations of employee watching at union meetings. In this
posture, I find that Respondent did convey the impression of
surveillance as alleged in the complaint. Although I am not
convinced that Vargo's comment to Duffy that she was out
on a limb constitutes a threat of discharge, I do regard her
statement, "You're on your way out" as a prediction of
retaliation which amounts to an unlawful implied threat of
discharge. Thus, in the final analysis, I find that in this
gathering after the election, Respondent's officials did make
statements which constituted interference, restraint, and
coercion violative of Section 8(a)(1) of the Act.
2. The 8(a)(3) discharge
Muriel Duffy was employed by Respondent as a rental
agent at the Logan Airport location from June 12, 1972,
until August 10, 1977, on the 7:30 to 4 o'clock shift. Duffy
was discharged from her employment by William Kings-
bury, who was acting airport manager for I week while
Stevens was on leave.
Around 10 o'clock on the morning of August 10,
Kingsbury summoned Duffy to his office and handed her a
customer complaint letter dated July 18, covering an alleged
incident occurring between 10 and 10:30 a.m. on July 4."
After she read the letter, Duffy told Kingsbury the letter
could not be referring to her as he knew she did not engage
in the activity described. She denied that the incident related
therein ever happened to her' and repeatedly asserted that it
was a falsehood. Duffy asked who this letter writer was.
Kingsbury assured her that the letter was authentic. She
asked for a copy and he gave her one. Duffy then asked to
see the rental contract underlying this complaint. Kingsbury
did not produce it, nor did he tell her where it was." Instead,
he told Duffy "1 have to act on this ... You had two other
complaints," and informed her that she was discharged.
read at a meeting by Stevens, who explained that the named agent had just got
a cup of coffee and a doughnut when a customer walked up. She jokingly
commented "Oh. great! Just on my break." The customer failed to appreciate
her humor and. taking offense, had written a letter of complaint. Katie Nolan
is still employed. The record establishes that rental agents are not given
coffeebreaks as such but routinely have refreshments behind the counter while
they are on duty. with the supervisors frequently arranging for service
employees to bring such refreshments to the rental agents. Stevens did not
recall a letter of complaint regarding an employee eating at the counter and
denied telling Duffy of such an incident. She did not deny reading complaint
letters to rental agents in meetings she conducted with rental agents as well as
those with station managers.
'' As indicated in the statement of background. supru. the investigation of a
complaint about the conduct of an individual ordinarily entails initially
pulling the contract reflecting the transaction and identifying the individual
involved. The evidence establishes that this was not done on this occasion,
even though it could have been of value in assisting Duffy in recalling the
incident. Further, although Respondent presented the work schedule covering
the week of July 3-9, showing that Duffy's work assignment was GAR
(meaning garage, where the check-in counter was located), there is no
indication that Kingsbury or Purnell ever bothered to verify this. Indeed,
contrary to Respondent's normal procedure, the discharge decision was
admittedly made within 10 minutes after receipt by Kingsbury of the
complaint letter through the interoffice mail from the downtown office and
without any investigation-this despite the fact that attached to it was a note
addressed to Stevens, the content of which Kingsbury could not recall and
which was not presented in evidence with the letter. In contrast to
Kingsbury's actions. Stevens testified that in most cases she talks to the
individual involved and others present. She stated that she has even called the
customer for more information where it is not clear what has happened.
Stevens testified that she learned this procedure from her predecessors.
Stevens' immediate predecessor was Purnell.
1458
AVIS RENT-A-CAR
Duffy asserted that she had explained the two matters,
referred to by Kingsbury, to Stevens on July 21." Duffy
declared her belief that the discharge action was not because
of the letter but because she had tried to organize a union.
Kingsbury shrugged his shoulders. Duffy then protested that
his action was contrary to normal procedures;" that other
girls had "all kinds of warning notices" whereas she had
never even had a letter against her.'" Duffy again asserted
that the discharge was because of her union activity. This
time Kingsbury denied that union activity was the cause of
her discharge.
Duffy told Kingsbury that she was going to fight the
action; that she was a senior rental agent and deserved more
of a hearing than she was getting; and that she was going to
Respondent's offices and see George Purnell." Kingsbury
told Duffy that Purnell was the only person who could
reverse his action, but Purnell was in a meeting at the time"
and would not be back in his office until about 12:30. He
asked Duffy to let him speak to Purnell first and not to tell
anyone that she had been fired.'
Purnell testified that when Kingsbury gave him the
Whicker complaint letter there was no rental agreement
attached." When Duffy came to his office he informed her
" Stevens had called Duffy into her office on that date and informed her of
two verbal complaints about her attitude relayed to Stevens that morning by
staff people. They discussed these complaints (detailed. infrn ). and Duffy
testified she left this conference with the belief she had satisfactorily explained
both. Stevens. admittedly finding it impossible to recall exactly what was said.
indicated that she merely told Duffy she did not expect any further complaints
about Duffy's attitude. Nevertheless. according to Stevens. she related the two
verbal complaints regarding Duffy to the station managers at a meeting she
was holding with them that afternoon. Assertedly she told the managers that
in her opinion this employee bears watching and if there were any further
complaints perhaps Duffy should not be working for Avis.
"See fn. 13, suprm.
" It is undisputed that Duffy, with over 5 years of service with Respondent,
had never before been the subject of a letter ofcomplaint of any kind and had
never received a written warning. Nor is there any contradiction to her
testimony that occasionally she had been complimented by Stevens. who
commented that Duffy was "from the old school" as she never complained
about performing unpopular assignments and performed all tasks assigned
without hesitation. She was chosen to handle "follow throughs on overdue
rentals" (checking up on cars held by a customer beyond the contract time), a
task particularly sensitive and one employees found distateful because "the
customer could get nasty." With respect to Duffy's work attitude, Mary Jane
Howe., who had worked for Respondent for nearly 10 years and who worked
the early shift at the Delta counter starting at 7 o'clock, testified that other
rental agents reporting to work at 7:30 usually went for coffee first. Duffy
"was practically the only employee" reporting at 7:30 who would start
working immediately even if she were 15 minutes early for her shift. and
would help Howe "pull WIZARDS" rather than go for coffee. Pulling
"WIZARDS" is another of the tedious assignments.
' Purnell had been promoted in June to the position of vice president of
operations after the departure of John Guaragna. who had become acting vice
president of operations after Roy Hood's departure before April b.
' Kingsbury testified that Duffy asked if she could talk to Purnell now, and
he attempted to reach Purnell by phone. At another point in his testimony
Kingsbury stated that an operations meeting was scheduled to commence at
10:30 and he knew that Purnell had to be at that meeting: that he also knew
that operations meetings lasted from 2-1/2 to 3 hours so he told Duffy the
best time to reach Purnell would be around I o'clock. Kingsbury further
testified that after Duffy left he called Purnell to tell him what had been done.
Purnell told Kingsbury he wanted to see Kingsbury right away so.
approximately 20 minutes after he terminated Duffy, Kingsbury went
downtown, arriving at Respondent's offices between 10 and 10: 1 5.
" Kingsbury recalled that he specified I o'clock and that because he could
not then reach Purnell he told Duffy. "I won't make out any papers and I
won't tell anybody about this," but that his decision still stood. Duffy asked
for a copy of the letter, and he gave her one. Kingsbury also testified as to
other details of the termination conversation but, after quoting himself as
he had already read the letter and talked to Kingsbury, and
advised her he was going to let the discharge decision
stand.2' According to Duffy, he told her he could not undo
what Kingsbury had done." Duffy asked Purnell what the
story behind this action was. She pointed out that normal
procedure was not being followed here; that there were
rental agents working with "all kinds of letters . . . and
notices;" and named one such individual who had "punched
a customer in the nose" and had not been fired. Duffy
asserted her discharge was because of her union activity.
Duffy asked Purnell who the letter writer was, maintaining
that she did not know him. Purnell responded that he did
not know the man either.'' Duffy asked Purnell how, in
these circumstances, he could say she was fired. Purnell
responded, "This is my decision." Duffy then asked what
she was to do, "with 10 years:' of (her) livelihood ... down
the drain? . .. what do I give as a reference? Who do I go to
for a job." Duffy testified that Purnell told her not to say she
was fired but to say she worked directly for him and that she
saying: "Understand this. I'm going to let my decision stand but you are a
senior Rental Agent and if you want more of a hearing then I'll let you talk to
Mr. Purnell and I won't be offended by it or hold it against you in the future."
he admitted that he was paraphrasing the conversation in his testimony. After
another series of statements which he attributed to himself in response to
Duffy's asserted threat to go to the National Labor Relations Board.
Kingsbury testified he had not told Duffy "all of this." Instead. he just told
her: "Look, we're both over 21. we both know what life is all about, you do
what you have to do, I'm going to do what I have to do because I'm the
manager. I make the decisions."
I was impressed with Kingsbury's apparent inability to separate his
imaginings, speculations. rationalizations, and obvious desire to present
himself in the posture of importance and authority, in blatant disregard of fact
or reality. Accordingly. I credit only that part of his testimony which is
consistent with that of credible witnesses or as may be admissions against
interest.
:" Purnell testified that company records reflect who was on duty on July 4
and where they were assigned. The work schedule presented in evidence
shows that four employees were assigned to work at the check-in counter that
day, but there is no assertion that the schedule was even checked to determine
that Duffy was among them, nor was any information taken from the other
employees concerning this matter. Thus, neither the rental agreement nor the
schedule were pulled to verify that Duffy was working at the designated place
at the time an employee named "Muriel" supposedly offended a customer.
" The notation in red script on the face of the letter. "Received August 10.
1977. Employee terminated. GFP," is admittedly Purnell's initials and in his
handwriting.
: In contrast. on a Saturday about a month before Duffy's discharge.
Kingsbury put a note on Ricci's timecard directing her to report to him. at
which time he directed her to go home and to report to Purnell on Monday
morning. He merely shrugged his shoulders when she asked whether she was
suspended or discharged. On Monday, Purnell spoke to her about absentee-
ism. She asked Purnell whether she had been suspended or fired. Purnell told
her Kingsbury had wanted to fire her but he (Purnell) had said "No." Purnell
admitted that he told Ricci he was the one who ordered her suspended
However. he placed the time as being in July of the preceding year. Stevens.
on the other hand, placed Ricci's suspension as occurring in December 1977.
A suspension is a matter shown on time and assignment sheets kept by
Respondent and usually on payroll records, both of which are in Respondent's
possession. These were not presented in evidence to substantiate the testimony
of Respondent's officials. I credit the testimony of Ricci and Duffy as to when
this occurred and as to what occurred.
'' At first Purnell testified that Duffy did not ask to see Whicker. but later
changed his testimony to admit that she did make the request.
:' By that time Duffy had accumulated 10 years' experience with car rental
companies.
1459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
left because she did not like working conditions, stating:
"You have them call me directly to get a reference."2' He
named two previously discharged employees then working
for other car rental agencies, whom he claimed to have
obtained jobs for in this fashion, and then handed her his
business card' to take with her as a reference when she went
on a job interview. Duffy then received her pay.
Mary Jane Howe was working the Delta terminal counter
with Duffy the day Duffy was terminated. That afternoon on
her way to clock out she passed by Kingsbury's office. He
called her in and asked whether she knew Duffy had been
fired. Howe indicated that she did. Kingsbury told her he
wanted her, as a senior rental agent, to know he had not
fired Duffy "because of this union thing" but because of a
letter he could not show her and a couple of other incidents.
Howe walked out of his office without a response. Howe
testified that never before had she been called in by a
management official and given an explanation for an
employee's termination. Kingsbury testified that he called to
his office Sissy Delaney, Howe, and most of the senior rental
agents and told them the same thing because the senior
rental agents were "opinion makers" and he did not want it
thought he had terminated Duffy because of her union
activities, nor did he want employees who had voted for the
Union to become fearful for their jobs.
Kingsbury testified that he made the decision to discharge
Duffy prior to her coming to his office and within 10
minutes after he received the Whicker letter. He denied that
anyone had issued instructions to him to do so. Kingsbury
claimed to have based his decision on the two incidents
mentioned by Stevens at the station managers' meeting and
the Whicker letter itself. Declaring these to be the only
considerations, Kingsbury denied that Duffy's union activity
was a factor but supplied another consideration as a
"background reason," namely, the fact that Avis' business
was falling below its 30 percent of the car rental market. He
testified that Purnell had told him about the decrease in
Avis' share of the market and that they had discussed
getting more accounts, motivating rental agents, and getting
a different kind of fleet, but not firing anyone because the
share of the business was falling.
With respect to the Whicker letter and his failure to
investigate," Kingsbury testified that it was different from
other letters and he was impressed by the fact that the letter
contained Whicker's "WIZARD" number;2" specified the
date of the incident; and mentioned the name of the
" Purnell admitted that he said, "We will verify the dates ... of
employment .. and not give the reason for termination . (and) we won't
bring the letter up."
" Purnell denied he gave Duffy his business card or that he recommended
two prospective employers for her to make application with. In the
courtroom, after Duffy produced Purnell's card from the wallet in her purse
and it was received in evidence, Purnell attempted to explain that he had
freely passed out these cards among employees when he first had them printed
after his promotion to vice president of operations in June.
" See fn. 13, supra.
:' "WIZARD" has reference to a computerized bank of information on a
customer which eliminates the necessity for the customer to provide the
information with each rental and eliminates the necessity for rental agents to
make credit and identity checks each time a contract is drawn up. Instead
they reed the "WIZARD" number into the equipment and receive printouts
on the information needed to complete the contract.
" Actually, the letter mentioned only "Murial" and misspelled that name
even though it was claimed to have been taken from the employee's nametag
at the time.
employee." Kingsbury stated that although he had never
met Whicker, he concluded that Whicker was a methodical
man from the letter. On cross-examination Kingsbury
stated, however, that he could not equate being methodical
with honesty or with being truthful. Kingsbury also admit-
ted that complaint letters normally go to the airport
manager-not to station managers-and that he does not see
them unless they are brought up at a meeting by Stevens.
Purnell also denied that he knew any more about Whicker
than what is mentioned in the letter. He testified that he was
impressed by Whicker's letter because it identified Duffy as
the individual and contained Whicker's "WIZARD" num-
ber. He testified that these were the characteristics which
distinguished it from other complaint letters. Purnell admit-
ted that the Whicker letter, on its face, reveals that it was
written 14 days after the alleged event and was misaddressed
to New Jersey instead of New York even though it contained
the correct Zip code number for the customer service office
in New York.
With respect to the "other two incidents" relied upon as
part of the reason for Duffy's discharge, Purnell claimed no
knowledge of them, other than that Kingsbury mentioned on
the phone he had discharged Duffy because of the letter and
"two other incidents," and Purnell directed Kingsbury to
bring the letter to him. From the testimony of Kingsbury,
Stevens, and Duffy we learn something of what transpired
on July 20 and 21. The first incident revolved around a
contract Duffy, at 3:45 p.m. on July 20, had requested the
arriving night rental agent to complete so that Duffy could
catch the shuttle bus back to the check-in counter in time to
clock out at the end of her shift. The incomplete contract,
for a customer named Poe, was awaiting only the arrival of
the car."'
Stevens called Duffy to her office the following afternoon,
July 21, and informed Duffy she had two verbal complaints
about Duffy's attitude. Stevens had the Poe contract before
her and informed Duffy of a complaint by Poe." Duffy told
Stevens that at the time the Poe contract was being written
she was working a "two girl" counter alone when a plane
arrived and she had a rush of customers. The night girls had
not yet arrived, and she was unable to obtain help when she
called for it. She was waiting on four customers at one time
when Poe asked for service. Poe did not have a credit card or
similar identification, which circumstances under Respon-
dent's policy required that the customer fill out a rental
application. Duffy was too busy with other customers to
"' Undisputed testimony establishes that when a rental agent's shift is
ending it is normal procedure to turn over customer contracts waiting for cars
as well as customers whose contracts are not otherwise completed to agents
still on duty or coming on duty. If business demands require a rental agent to
stay at a counter, the agent must call a management official and obtain
authorization for the overtime.
" Admittedly unable to recall their exact conversation, Stevens testified that
she told Duffy the customer complained that she had been rude. Further,
Stevens testified that Poe had not complained to her; rather, Steve Tronni, the
night station manager, had placed a copy of the Poe contract on her desk in
her absence and had called her on the morning of July 21 to inform her that
the customer had said the girl who initially worked on the contract was not
very helpful. Tronni did not testify. and there were no details as to what had
transpired, who the customer complained to, or what she said. Stevens
admitted that although she does so where such an investigation is indicated,
and could have done so in this instance, she did not attempt to contact Poe to
ascertain the substance of her complaint.
1460
AVIS RENT-A-CAR
complete the application for Poe so she asked Poe to
complete it. Duffy did look at it several times while waiting
on the other customers, on each occasion returning the
application to Poe to complete omissions, finally completing
some of it for Poe. The contract was complete except for
delivery and entry thereon of the car when Duffy left at the
end of her shift. After this explanation of the circumstances,
Duffy told Stevens she had not been rude to Poe. Stevens
replied, "I didn't say you were rude, Muriel. I said that the
customer said you weren't very helpful." Duffy concluded
that her explanation of this situation had been accepted.
In this same conference, Duffy testified she was told by
Stevens of a report that day of a customer complaint
asserting that while working the Allegheny counter "the
girl" had refused to give, or had not given, directions to a
customer. Cliff Hanson, a shuttle-bus driver, had reported
this and had said Duffy was at that counter.': Duffy denied
to Stevens that she had ever refused to give directions.
According to Stevens, she told Duffy the complaint was that
she "was not helpful." Duffy asked her to explain, and she
told Duffy the customer told the driver that when he asked
for directions the girl behind the counter acted like she was
doing him a favor. Stevens testified that at the end of the
conversation she told Duffy she expected there would be no
further complaints regarding her attitude. Admittedly,
Stevens did not give Duffy a written warning or make a
record on the complaint or on the conference at that time."
Duffy denied that Stevens made this final comment. Accord-
ing to Duffy, she asked Stevens for the name of the
customer. Stevens said she would get the name for Duffy
later but never supplied it. Duffy pursued the matter by
obtaining the contracts she had written at the designated
counter that day and supplying copies of these to Stevens,
who still failed to identify the complaining customer. Later
Duffy talked with Kingsbury and also phoned Cliff Hanson
in an effort to clarify the situation. Hanson was not available
when she called, so Duffy left a message for Hanson to call
her. Her call was not returned by Hanson, who soon
thereafter went on vacation. Because of vagueness, internal
inconsistencies in Stevens' testimony, and her admission that
': Although Stevens' testimony would indicate that the Hanson report was
made directly to her, I find, consistent with Duffy's undenied and undisputed
testimony, that Stevens indicated it was relayed by Kingsbury. Duffy testified,
without contradiction, that later she had occasion to enter the office where
Kingsbury worked and asked him about this complaint. Kingsbury told her
he had not reported a refusal to give directions but rather a mixup about a 2-
door car. Duffy told Kingsbury, " wish you people would get your heads
together." Stevens also testified she told Duffy the folder on the contract was
improper and the driver had to look at the contract in order to locate the car.
Duffy denied that Stevens mentioned the envelope or contract folder.
" Stevens testified that if she were going to record a complaint on someone
she would do it as soon as possible. Stevens learned of the Whicker letter when
she returned from vacation on Friday, August 12, 2 days after Duffy had been
discharged. On August 19. 9 days after Duffy's discharge, and the day after
Respondent was served with a copy of the charges herein, Stevens wrote a
threepage report on her conference with Duffy which she sent to the director
of personnel.
" Although Stevens testified that she called the Allegheny counter and
verified that Duffy had been working there, she also stated that she called the
Allegheny counter to ask Duffy to come to her oce. knowing Duffy was
there as she had made the assignment herself that morning. Stevens set the
time of the incident as having occurred around 11:30 a.m. and their
conference between 11:50 and 12 noon. however, details beyond her recall
included the time of day she sent for Duffy: when and how that day she
arranged for Duffy to be at the counter involved: whether Duffy or someone
her recollection of this conference was not very clear, I
credit the testimony of Duffy."
Stevens further testified that on the afternoon of August
21, at a station managers' meeting, she told those in
attendance that she had received two verbal complaints
about Duffy and stated, "This employee bears watching and
if there are any further incidents perhaps she should not be
working for Avis." At the time Stevens knew of her -week
vacation plan for the second week of August and that
Kingsbury would be substituting for her. She did not,
however, leave any such instructions with Kingsbury or play
any part in Duffy's discharge.
Duffy's testimony, that the Whicker complaint letter was
the first such letter against her and that she had never
received a written warning about any phase of her work
performance, is not contradicted or disputed.
Purnell could recall only three other employees who had
been discharged for discourtesy. One, a rental agent, had
been discharged in 1973, after she was the subject of a
customer complaint and an investigation, including inter-
views with agents working with her at the time and her own
admission, which verified that she did "swear" at the
customer. Purnell recalled another incident in early 1974
which involved a shuttle-bus driver of 6 months tenure, with
a record of previous verbal customer complaints. Reports of
his arrogant attitude were made directly to management
officials at the time, and the driver was discharged upon a
customer's personal complaint to the airport manager when
he refused to help the customer and his invalid wife with
their luggage. Other customers then helped the couple. A
third employee, also a shuttle-bus driver of 5 months, was
discharged in 1973 after three complaint letters for bad
driving habits, poor attitude toward customers, and verbal
abuse of customers."
Purnell also admitted he was aware of a situation which
occurred while he was a station manager, before mid-1973,
in which the president of Avis, Inc., Winston Marrel-the
individual credited with creating the concept and instituting
the "WIZARD" program-was involved. Marrell had
approached Jane Barkley, a rental agent on duty at one of
Respondent's counters at Logan Airport, and asked her how
else answered the phone; or, even whether Duffy was at that counter when she
called or was at the American counter. Duffy had admitted that she had
worked the Allegheny counter along that day while relieving the regular
rental agent for lunch. Duffy also relieved the rental agent at the American
Airlines terminal counter, and the record does not reflect the time each agent
took her lunch break that day.
" The General Counsel selected from Respondent's records, produced
pursuant to subpena. and introduced into evidence complaint letters spanning
1973-77. Respondent did not supplement these or contend that they were not
representative. The actions reflected therein ranged from (in one instance) as
many as 3 complaint letters against a particular rental agent for impoliteness
and attitude, resulting in only a recorded verbal warning to the employee
involved. to several instances where substantial refunds, remunerations, and
complimentary credits were given to customers along with assurances that the
offending employee had been reprimanded. (a statement not otherwise
documented or supported), to an apology to the customer following an
investigatory report that the particular customer had previously caused
trouble, repeatedly parked for days in Avis spaces, been very difficult with
certain other rental agents and was known to certain "pilots" as "a real
X!!SS." These records consistently reveal that an investigation was undertak-
en, attempts were made to help the employees correct any error and improve,
and letters aimed at placating the customer were written. There were no
recorded discharges based on customer complaints other than those men-
tioned by Purnell.
1461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she liked the "WIZARD." Not knowing his identity,
Barkley candidly replied that she "found it boring" and "it
made her feel like a robot." After Marrel left, other rental
agents at the counter asked Barkley whether she knew who
that was and what she had just done. Shortly thereafter she
was given a copy of a letter to Respondent from the
president of Avis, in which, without relating the details of
the incident, Marrel labeled Barkley a poor representative of
Avis and demanded her termination, asserting that Respon-
dent, the franchisee, should employ a new rental agent and
the offending one should find a new career for herself.
Barkley was not reprimanded or discharged, but thereafter
whenever the president of Avis came to Logan Airport,
other employees of Respondent "hid her" and covered for
her under express directions of management officials to "get
her out of here." She was still employed during the events
herein.
Kathleen Moore, a former rental agent who voluntarily
left Respondent's employ for personal reasons, testified that
in her two periods of employment by Respondent, the first
dating from 1970, she had been made aware of five
complaint letters from customers wherein she had written
the contracts. Two of these related to her behavior. In each
case she was interviewed by the manager who had the rental
contract with the letter at the time. The most specific
conduct-oriented letter involved a situation in which Moore
refused to lease a car to a customer on the stated ground that
she "was paid to rent to ladies and gentlemen and he did not
qualify." When she was interviewed during the investigation
of the letter, she told the airport manager that the customer
had used abusive language to her. She was advised to keep
her opinions about ladies and gentlemen to herself in the
future, but was not otherwise reprimanded.
Howe and Ricci both testified that they had been the
subject of complaint letters which, investigation revealed,
perhaps should have been directed against the rental agents
working with them. Finally, with respect to the particular
complaint involving Duffy's alleged conduct on July 4, Ruth
Clasby, a rental agent with 5-1/2 years' experience with
Respondent, and the agent who was working directly with
Duffy at the check-in counter on July 4, testified that she
never observed Duffy, on that day or any other, keep a
customer waiting while she drank coffee. Clasby also named
two additional agents who worked the check-in counter that
day and further testified that neither Kingsbury nor any
other representative of management ever talked to her about
any complaint letter concerning any incident occurring on
that date.
The credited and documented evidence establishes, and I
find, that Kingsbury and Purnell siezed upon the Whicker
letter as a pretextual justification for discharging Duffy. In
so doing they failed to observe even the minimum of
" Clearly, Purnell could do something about it. He had not hesitated to
reverse Kingsbury with respect to discharge, changing it to a suspension and
making a point of informing Ricci he had reversed Kingsbury's decision to
discharge her.
As indicated by Kingsbury. the termination papers had not yet been
drawn up by him but were withheld pending Duffy's interview with Purnell.
" Stevens did not verify the two July incidents reported by other employees,
and I must conclude, in view of the extent of her efforts to verify complaints
when it was deemed necessary, that she did not regard these as worthy of
further pursuit after speaking with Duffy. Her comment to the meeting of
station managers, if indeed it was made, could well have been her signal to
Respondent's established investigatory procedures by failing
to pull the rental contract or refer to company records to
verify that Duffy was the employee who served Whicker.
Even if Kingsbury were ignorant of these procedures, which
is not claimed and is highly doubtful, the documented
evidence, credited testimony, and his own admission estab-
lish that Purnell not only was aware of these procedures
since the time he served as a station manager, but also
implemented these procedures while he was airport manag-
er, and acquainted his successor, Stevens, with them.
Purnell's blatant disinterest in following the very minimum
of these procedures and his desire to reach only one result-
discharge-is underscored by his false assertion that he
could do nothing about it,'" his determined refusal to even
consider Duffy's protestations with respect to this irregulari-
ty, and his refusal to justify it by adamantly stating with
respect to the discharge, it "stands" and "this is my
decision," thus, indicating that he could reverse the dis-
charge action if he were so inclined. To hold so firm a
position in an uncompleted action" emphasizes the impor-
tance of the discharge of Duffy to Respondent, particularly
where Respondent was dealing with a diligent senior rental
agent of recognized ability and cooperativeness with no prior
complaint letters, no verified complaints,'" and no written
reprimands of any nature on her record.
There is no explanation of how or why Kingsbury just
happened to have a copy of Whicker's letter available to give
Duffy at her interview. I cannot overlook the fact that both
Kingsbury and Purnell were so fortuitously impressed by
ordinary bits of identifying information in Whicker's letter
while overlooking the complete absence of any factual
statement supporting the general allegation of discourtesy as
distinguished from being detained, a much lesser offense,
and ignoring erroneous spelling and addressing and the
obvious delay in writing. Further, both Kingsbury and
Purnell affirmed that Whicker was unknown to them. Thus,
for all they knew from the letter, he could have been
nonexistent; they did not bother to even check the "WIZ-
ARD" number, and the letter itself had no letterhead. In
contrast, we might note the different treatment accorded a
letter similarly vague as to facts and equally fold in
generalities, but with a demand for discharge by an Avis
VIP-no less than Avis' international president. The con-
trast is the more blatant when you consider the lengths
Respondent went to in maintaining its position even to the
extent of requiring other employees to hide the offending
rental agent whenever the vip appeared on the scene. This is
not the only example of disparate treatment. Consider the
situation where the employee refused to rent a car to the
customer she regarded as neither a lady nor a gentleman; the
one in which the employee threatened to have a customer
charged with auto theft when he stated his entitlement to
them that Respondent needed something more solid on which to take any
discharge action. Also, some weight must be given to Stevens' failre to
personally instruct Kingsbury regarding Duffy if her conduct were considered
questionable, especially since she knew at the time that she was taking leave
and that Kingsbury would be her substitute. Stevens memorandum to
personnel on these incidents, written so long after the event and after service
orf the charge herein, is clearly self-serving and not worthy of consideration as
a documented record kept in the normal course of business. but rather is open
to the interpretation that it is a document prepared for purposes of defense to
the act ion already filed.
1462
AVIS RENT-A-CAR
another day's possession of the car; or the cases where
employees had accumulated as many as three letters of
complaint without disciplinary action. In my view the
disparate treatment is glaring.
Nor can one ignore the "advance warning" to Duffy on
the night following the Union's election defeat that she "had
stuck her neck out" and was "on her way out." By this time,
Respondent's officials knew well that Duffy was the Union's
in-house advocate and activist. She was open in her
acknowledgement of this role to management officials and
firmly stated her lack of regret, affirming that she would do
it again. Given Respondent's method of avoiding unioniza-
tion of its employees over the years by following the top
competition's union-negotiated contract and establishing
and annually granting its employee benefits and by granting
all that was provided therein, as soon as the union
organizing effort appeared to be taking serious hold, along
with Respondent's openly expressed determination to avoid
ever dealing with the Union at all cost, Respondent's motive,
in finding a way to remove from its employ the one rental
agent who spearheaded the organizing campaign and who
openly avowed she would do it again, becomes inescapable.
Accordingly, I find that Respondent discharged Muriel
Duffy on August 10, 1977, because of her protected union
activity and thereby violated Section 8(a)(3) and (1) of the
Act.
IV. THE EFFECT O01 THE UNFAIR IABOR PRACTIC.S
UPON COMMERCE
The activities of Respondent set forth in section IIl, above
occurring in connection with its operations described in
section 1, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCt.USIONS 01 LAW
I. General Rental Co., d/b/a Avis Rent-A-Car, is an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge 38, at all times material
herein, has been and is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights protected by Section 7
of the Act, and thereby has engaged in, and is engaging in,
unfair labor practices proscribed in Section 8(a)(1) of the
Act by committing the following conduct during an election
campaign of its employees:
(a) Interrogating its employees concerning their union
sympathies and activities, and those of other employees, and
the reasons therefor;
(b) Promising, announcing, and granting increases in
wages and benefits;
"In the event no exceptions are iled as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board the findings.
conclusions. and recommended Order herein shall, as provided in Sec. 102.48
(c) Implying promises that grievances would be remedied,
and adjusting grievances;
(d) Threatening loss of benefits and more onerous working
conditions if union representation should be selected;
(e) Creating the impression that employees' union sympa-
thies and activities were under surveillance; and
(f) Implying threats of retaliation by discharge.
4. Respondent discriminated with respect to hire, tenure,
terms, and conditions of employment, and has engaged in,
and is engaging in, unfair labor practices within the meaning
of Section 8(a)(3) and (I) of the Act by discharging, and
thereafter failing and refusing to reinstate, Muriel Duffy
because she engaged in union activities.
5. The aforesaid are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, certain unfair labor practices, I shall recom-
mend that it be ordered to cease and desist therefrom and to
take certain affirmative action deemed necessary to effectu-
ate the policies of the Act. Having found that Respondent
unlawfully discharged Muriel Duffy in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that Respon-
dent be required to offer her immediate and full reinstate-
ment to her former position or, if such position no longer
exists, to a substantially equivalent position, without preju-
dice to any seniority or other rights and privileges previously
enjoyed, and make her whole for any loss of pay suffered as a
result of the discrimination against her, by payment to her of
a sum of money equal to that which she normally would
have earned, absent the unlawful discharge, with backpay
and interest computed under the established standard of the
Board.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER'"
The Respondent, General Rental Co., d/b/a Avis Rent-
A-Car, of Boston, Massachusetts, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Engaging in the following conduct in opposition to the
exercise by employees of protected Section 7 activities:
(1) Interrogating its employees concerning their union
sympathies and activities and those of other employees, and
the reasons therefor;
(2) Promising, announcing, and granting increases in
wages and benefits;
(3) Implying that grievances would be remedied and
adjusting grievances;
(4) Threatening loss of benefits and more onerous working
conditions if union representation should be selected;
of the Rules and Regulations. be adopted by the oard and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) Creating the impression that employees' union sympa-
thies and activities are under surveillance; and
(6) Implying threats of retaliation by discharge.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations Act.
2. Take the following affirmative actions which are
deemed necessary to effectuate the policies of the Act:
(a) Offer Muriel Duffy immediate and full reinstatement
to her former position or, if it no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges.
(b) Make Muriel Duffy whole for any loss of earnings
suffered as a result of the discrimination against her in the
manner set forth in the section of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
'" In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze and compute the amounts of backpay due under the
terms of this Order.
(d) Post at its operations at Boston, Massachusetts, and at
each of its locations at Logan Airport, copies of the attached
notice marked "Appendix.""'" Copies of said notice, on forms
provided by the Regional Director for Region , after being
duly signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region I in writing,
within 20 days from the receipt of this Decision, what steps
have been taken by Respondent to comply herewith.
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1464