Avis Rent-A-Car

National Labor Relations Board - Board Decisions

Sep 25, 1997

324 N.L.R.B. 445 (N.L.R.B. 1997)

445
324 NLRB No. 81
AVIS RENT-A-CAR
1 All dates are in l997 unless otherwise stated.
Avis Rent-A-Car and International Longshoremen’s
and Warehousemen’s Union, Local 142, AFL–
CIO, Petitioner. Case 37–RC–3787
September 25, 1997
DECISION AND ORDER REMANDING
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
The National Labor Relations Board has considered
objections to an election held May 9, 1997,1 and the
Regional Director’s report recommending disposition
of them. The election was conducted pursuant to a
Stipulated Election Agreement. The tally of ballots
shows 30 for and 21 against the Petitioner, with 5
challenged ballots, an insufficient number to affect the
results of the election.
The Board has reviewed the record in light of the
exceptions and brief, and has adopted the Regional Di-
rector’s findings and recommendations only to the ex-
tent consistent with this Decision and Order Remand-
ing.
The Regional Director found that the Employer
failed to file timely objections to the election. The Em-
ployer excepts, contending that the charge it filed in
Case 37–CB–1323 constitutes timely filed objections.
We find merit in the Employer’s contention.
On May 16, 7 days after the election, the Employer
filed with the Subregional office, on the Board’s stand-
ard unfair labor practice charge form, a set of allega-
tions pertaining to the conduct of Union Representative
Calvin Warner on the day of the election. The Em-
ployer alleged the following:
On Friday, May 9, Mr. Calvin Warner the
union organizing representative, did sit in front of
a local surf shop at Kings Shopping Complex,
visible to employees across the street from Avis’
Waikiki location at 148 Kaiulani Avenue, during
the polling period 11:30 a.m. to 12:00 p.m. this
distance is approximately 100 feet away.
On Friday, May 9, Mr. Calvin Warner re-
mained in the rental parking area adjacent to the
Employer’s airport facility during the polling pe-
riod 1:00 p.m. to 2:00 p.m. Mr. Calvin Warner
was observed standing within 15 feet of the poll-
ing area entrance and was observed engaging in
conversations with employees, by Roth Puahala,
as employees entered the polling area during the
polling period 5:00 p.m. to 6:00 p.m.
On Friday, May 9, Mr. Warner had approached
Mr. Lloyd Young, Shuttler and offered to buy Mr.
Young lunch (pizza) if Mr. Young voted in favor
of the union.
The union violated Section 8(b)(1)(A) of the
NLRB, specifically engaging in conduct that is
reasonably calculated to coerce Section 7 rights.
The Subregional office docketed the Employer’s fil-
ing as an unfair labor practice charge in Case 37–CB–
1323.
On May 19, the Subregion received a letter from
Guy E. Wegener, the Employer’s vice president, refer-
ring to certain evidence the Employer was providing in
support of what the Employer called its previously
filed election objections. Having only received from
the Employer its filing of May 16, the Subregion
called the Employer and explained that it had not re-
ceived any objections to the election. The Employer
responded that the allegations set forth in its unfair
labor practice charge constitute the Employer’s objec-
tions to the election.
The Regional Director found that the Employer’s
May 16 filing is not sufficient to constitute objections
to the election, as it neither calls the election results
into question, nor seeks to have the election set aside.
Thus, the Regional Director found that Employer failed
to file timely objections to the election and accordingly
recommended that a Certification of Representative
should issue.
Contrary to the Regional Director, we find that the
Employer’s filing of May 16, having been received
within 7 days of the election as required by Section
102.69(a) of the Board’s Rules and Regulations, is suf-
ficient to constitute timely filed objections to the May
9 election. Although the Employer’s allegations were
set forth on the Board’s standard unfair labor practice
charge form, the allegations clearly communicate the
Employer’s contention that the Union’s agent engaged
in conduct interfering with the election. Indeed, the de-
scription of the conduct identified in the Employer’s
filing is typically identified with allegations of objec-
tionable conduct. Further, as required by Section
102.69(a) of the Board’s Rules and Regulations, the
Employer’s filing was made within 7 days of the elec-
tion, and, within 7 days thereafter, the Employer fur-
nished to the Subregion its evidence in support of its
allegations of objectionable conduct. Thus, it is clear
that the Employer acted consistent with an intent to
file objections to the election.
In finding that the Employer failed to file objections
to the election, the Regional Director relied on Gard-
ner Engineering, Inc., 313 NLRB 755 fn. 2 (1994);
Bandag, Inc., 225 NLRB 72 (1976); and Irving Air
Chute, 149 NLRB 627, 629–630 (1964). We find those
cases inapplicable to the instant facts. In those cases,
the Board held that in the absence of timely filed ob-
jections an election will not be set aside based on the
merits of an unfair labor practice charge. There was no
contention in those cases, however, that the unfair
labor practice charges were intended to serve as objec-
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446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Indeed, in Bandag, Inc., supra, the party filing unfair labor prac-
tice charges specifically requested that its election objections be
withdrawn.
tions to the election.2 Thus, the above cases do not re-
quire rejecting the Employer’s May 16 filing as objec-
tions to the election merely because the allegations are
set forth on an unfair labor practice charge form. That
the allegations were contained on an unfair labor prac-
tice charge form and were not explicitly identified as
election objections does not, by itself, undermine the
otherwise clearly expressed intent by the Employer to
allege the occurrence of conduct interfering with the
election.
Accordingly, we find that, in these circumstances,
the Employer’s May 16 filing constitutes timely filed
objections to the election. Therefore, we shall remand
the case to the Regional Director to consider the merits
of these objections.
ORDER
It is ordered that the allegations set forth in the May
16, 1997 filing docketed in Case 37–CB–1323 are ac-
cepted as objections to the May 9, 1997 election, and
that the above-entitled matter is remanded to the Re-
gional Director for Region 20 for further appropriate
action.
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