Budget Rent A Car Of Washington, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 315 (N.L.R.B. 1985)

1 BUDGET RENT A CAR
315
Budget Rent A Car of Washington , Inc. and Auto-
motive , Petroleum , Cylinder and Bottled Gas,
Chemical Drivers , Helpers and Allied Workers
and Public Transportation Employees, Local
,Union 922, IBTCWHA. Cases 5-CA-13784
and.5-RC-11519
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 24- September 1982 Administrative- Law
Judge Stanley N. Ohlbaum issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding. to a three-
member panel.
The Board has considered the decision and the
record -in light of the exceptions' and brief2 and
has decided to affirm the judge's rulings, findings,
and conclusions3 and to adopt the recommended
Order as modified.
We disagree with the judge's finding that the Re-
spondent violated Section 8(a)(1) of the Act by in-
creasing employee bonuses. The record indicates
that the Respondent "restructured its bonus system
at its National Airport locations for legitimate busi-
ness reasons . The, Respondent anticipated that the
new airport location would result in an increase in
the volume of sales as well as in the number of per-
sonnel serving ' that location. The increase in sales-
and thus profits-required the Respondent to adjust
the bonus eligibility quota so that the employees as
a group would not reap a windfall relative to em-
ployees in other locations not enjoying a similar in-
crease in profits. Likewise, the' increase in person-
nel required the Respondent to reformulate the
' The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The Respondent has requested oral argument The request is denied
as the record, exceptions, and brief adequately present the issues and 'the
positions of the parties
8 The judge found that the Respondent assigned Christopher Loschack
an unfavorable work schedule in retaliation for his union activity Chair-
man Dotson disagrees It was not unreasonable for the Respondent to
schedule an experienced employee to work during one of two busiest
times of the day Moreover, Loschack's own testimony on cross-examina-
tion indicates that seniority was not strictly followed in establishing work
schedules Finally , fellow Shift Supervisor Kris Agrafiotis received a rel-
atively favorable work schedule even though the Respondent knew she
was an active union supporter . In sum , there is sufficient evidence to
demonstrate that the Respondent had a legitimate business justification
for changing Loschack's schedule Accordingly, the Chairman would dis-
miss this allegation of the complaint
percentage of above-quota profits to be shared by
individual employees: Failure to readjust this per-
centage figure would have resulted in' many em-
ployees sharing in a bonus designed to,award far
fewer individuals: Accordingly, we conclude that
the Respondent's restructuring of-the bonus system
at the, National Airport locations was justified by
legitimate business considerations and thus did not
violate Section 8(a)(1).
ORDER•
The National Labor Relations Board adopts the
recommended Order " of the administrative law
judge-'as modified below and orders that the Re-
spondent, Budget Rent A Car of Washington, Inc.,
Washington, D.C., its -officers,. agents, ' successors,
and assigns , shall take the action set forth in the
Order as modified. - , - '
1. Substitute the following for paragraph 1(f).
"(f)- Announcing, promising, placing into effect,
.or paying increased wages -or wage rates; or any
other economic benefit, in order to encourage em-
ployees 'to reject a union as their -bargaining repre-
sentative or to refrain from exercising any other
right guaranteed by the Act; but without prejudice
to any such benefit heretofore instituted or an-
nounced.". -
2.-Substitute the attached notice for that of the
administrative law judge.
APPENDIX -
NOTICE To EMPLOYEES
POSTED BY ORDER'OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities. - .
WE WILL NOT' question you, in violation of the
Act, about your or other employees' union mem-
bership, affiliation, sympathies, desires, or activities.
WE WILL NOT, in violation of the Act, solicit or
invite your complaints or grievances, or promise to
take care of them, so as to discourage you from
276 NLRB No. 32
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joining a union or maintaining your union member-
ship, so as to discourage you from bargaining with
us collectively as a group.
WE WILL NOT, in violation of the Act, threaten
you with any loss of benefits in the event you
select a union to bargain with us as your represent-
ative.
WE WILL NOT, in violation of the Act, threaten
that we will not bargain with any union you select
to bargain with us as your representative..
WE WILL NOT change the work schedule of any
employee to a less favorable schedule, or otherwise
change his or her conditions of employment, be-
cause of or in order to discourage his or her sup-
port of a union.
WE WILL, NOT announce, promise, put into
effect, or pay higher wages or other benefits in
order to discourage you from union membership or
support, to discourage you from bargaining collec-
tively with us ; as a group, or to discourage you
from exercising any. of,your rights under the Act.
This, however, shall have no effect whatsoever on
any_ wage raises or any other benefits we have al-
ready placed into effect or promised or announced.
WE WILL, NOT discharge or -otherwise discrimi-
nate against any employee because of his-or her
union membership, affiliation, sympathy, support,
assistance, or activity; nor thereby to discourage or
discriminate against , or to interfere with,.. restrain,
or coerce, any employee in the exercise of any
right under the Act,
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Lyndon B. Headen immediate
and full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights or privileges previously enjoyed and
WE WILL make him whole for any loss of 'earnings
and other benefits resulting from his discharge, _ less
any net interim earnings , plus interest.
WE WILL delete from all of our records all indi-
cations that Lyndon B. Headen was discharged by
us about 17 June 1981 because of'his fault, and WE
WILL promptly notify him to that effect; and WE
WILL NOT tell any employer or reference-seeker
that he was fired then because of any-fault on his
part.
All of our employees are free to join, or not to
join, Teamsters Local 922, or any other union of
their' choice, without any interference, coercion, or
discrimination from us.
BUDGET RENT A CAR OF WASHING-
TON, INC.
Harvey A. Holzman, 'Esq., Baltimore , Maryland , for the
General Counsel.
Martin H. Steckel and - Clifford H. Nelson, Jr., Esq.
(Messrs. Artken, Caldwell, Horton & Steckel, Attorneys),
Atlanta , Georgia, for the Respondent Employer.
Kenneth Henley, Esq. (Messrs. Long, Henley & Long, At-
torneys), Bethesda , Maryland , for the Charging Party
Petitioner. -
DECISION
PRELIMINARY STATEMENT; ISSUES
STANLEY OHLBAUM, Administrative Law Judge. This
consolidated proceeding' under the National Labor Re-
lations Act was litigated before me in Washington, D.C.,
on July 13-19, 1982, with all parties participating
through counsel and given full opportunity to present
evidence, arguments, proposed findings, and conclusions
and,- after unopposed application for time extension,
briefs, which were received on September 17, 1982.
Record and briefs have been carefully considered.
The complaint (Case 5-CA-13784) alleges violations
by Respondent Employer of Section 8(a)(1) and' (3) of
the Act through unlawful interrogation, creation of im-
pression of surveillance, solicitation of and promise to re-
dress grievances, economic threats, threats of refusal to
bargain collectively, economic sanctions, economic bene-
fits, and discharge of employees. Related issues arising
out of-the Union's objections to a representation election
conducted under Board auspices on June 25-26, 1981
"(Case 5-RC-11519) have been rendered moot by with-
drawal thereof at this trial.
On the entire record and my observation of the testi-
monial demeanor of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
At all material times, Respondent has been and is a
Delaware corporation with an office and place of busi-
ness in Washington, D.C., where it has engaged and en-
gages in the business of retail 'rental of automobiles, vans,
,and trucks at and from its various locations in Washing-
ton, D.C., and its metropolitan area. During the course
and conduct of its business operations in the representa-
tive 12-month period immediately antedating issuance of
the complaint, Respondent derived gross revenues ex-
ceeding $500,000, and also purchased and received at its
these locations, directly in interstate commerce from
places outside of Washington, D.C., products valued at
over $5000. '
I find that at all material times Respondent 'has been
and is an employer engaged in commerce within the
.meaning of Section 2(2), (6), and (7),2 and Charging
I Case 5-CA-13784 complaint dated February 22 as amended June 24,
1982, based on charge filed October 9 as amended December 2, 1981
Case 5-RC-11519 issues arising out of objections to election. conducted
on June 25-26, 1981, consolidated with Case 5-CA-13784 by February
25, 1982 direction of the Regional Director for Region 5
2 It is noted that, business dollar levels aside , the Board exercises ple-
nary jurisdiction over the District of Columbia. Cf Westchester Corp, 124
Continued
BUDGET RENT A CAR
Party Union a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A Background
Respondent owns and operates a retail automobile,
van, and truck rental business in Washington, D.C., and
its surrounding environs, as a franchisee of Budget-Rent-
a-Car Corp., a worldwide organization. Respondent has
been in this business for about 20 years. Starting with a
single Washington -location (at, 20th and M Streets,
N.W.) and a substation in Silver Spring, Maryland, by
May 1981 Respondent had expanded to around 20 loca-
tions in the Washington metropolitan area. Respondent
issued sublicenses to some and retained direct control
over four-viz., at 1200 K Street, N.W. (about 18 years;
"K Street" herein), 10th and I Streets, S.W. (about a
year), Jefferson Davis Highway, near National Airport
(about 8 'years, but' also at other nearby locations for
around 17 years), and at or near Dulles Airport (about
15 years). A fifth rental location under Respondent's
direct control has recently been added, at New Hamp-
shire Avenue and M Street, N.W. Respondent also main-
tains an accounting office at 1411 K Street, N.W.
Respondent's principal and president since its founda-
tion has been Leonard Snyder, a lawyer with a law
office in College Park, Maryland, who is the chief policy
head of the Company, concerned with overall or impor-
tant policy such as opening of new locations or labor re-
lations, but who does not preoccupy himself with minuti-
ae of its day-to-day operations, which are handled by
Morton L. Snyder- (unrelated to Leonard Snyder), for-
merly its general manager but for the past 15 years its
vice president and chief operating manager (as well as,
until recently, its personnel director). Edward J. Cohen,
with an office at the Jefferson Davis Highway location,
is Respondent's general manager. While Morton Snyder
handles purchase and sale of rental cars, and programs,
projection, planning, and the "big picture"'of operations,
Cohen deals with more "basic" operations including
hiring of employees.
A typical rental office personnel component consists of
an office manager, an assistant manager (or night manag-
er), a, parking lot manager,. service representatives (who
fuel, clean , maintain , and shuttle rental cars), and counter
clerks (who answer telephones, brief patrons, arrange for
rental • car reservations, and prepare car rental form
agreements); Shortly before Respondent's opening of a
car rental counter at National Airport in June 1981, a
new job classification of "shift supervisor" (inside and
outside) was added.
In January-April 1981 Respondent became the suc-
cessful bidder on a new location consisting of a car
rental, counter in the National Airport concourse. After
successfully fending off a•lawsuit by a competing bidder
(Dollar-Rent-A-Car), Respondent commenced actual op-
erations at its new National Airport counter on June 22
or 23, 1981, under a 4-1/2-year franchise. (Rental cars
NLRB 194 (1959) At the trial, Respondent 'withdrew its "Third De-
fense" in its answer disputing jurisdiction
317
for the National Airport counter were supplied and shut-
tled from Respondent's- existing Jefferson Davis High-
way location.)
In April 1981 Respondent's employees began exercis-
ing their right under the Act to organize themselves in
order to deal collectively with Respondent through
Charging Party Union, by holding meetings, distributing
union promotional literature, enlisting union supporters,
and collecting the usual -union bargaining authorization
designation cards.3
Respondent conducted a determined countercampaign
against this attempted unionization of its employees, in
the interim period up to the holding of a Board-super-
vised representation election on June 25-26, 1981.
Morton Snyder's reaction to the unionization attempt, of
which he, as well as other company executives, were
kept informed by their subordinates, was, in'his words at
the trial:
I felt that we were probably doing something
wrong and we would try to correct any situa-
tion. . .. If people are unhappy about something,
they go to people for help. Evidently, we had some
unhappy people working 'for us so they must have
contacted the union . . . . Evidently they must
have been unhappy about something because they
went to the union . . . . I tried tb find out what the
problems were and how to correct them . . . . [t]o
try to keep my employees happy, sir.. . . of course
I,tried to keep them out of the union . I felt that I
could accomplish as much as any union could. .. .
If -[I] made them happy, they wouldn't need the
union.
Respondent also distributed antiunion literature 4
through its supervisors (including Israel Atkins, of whom
3 The Union (Charging Party here) selected by Respondent's employ-
ees`for -this'purpose has, according to the uncross-examined and uncon-
troverted testimony of its president , Eddy Kornegay Jr, similarly repre-
sented employees of the Hertz, Avis, and National automobile rental
chains for 15 to 20 years
4 Respondent 's antiunion campaign literature (R Exhs 2, 3, and 4),
distributed - by it to all of its employees with their paychecks and posted
on its bulletin ;boards at all of its locations , included the following state-
ments -
[W]e could legally refuse to give in on any single request made by
the union In fact, it is entirely possible for the Company to tighten
down on the way things are run now and eliminate some benefits
employees already have There - is just as much possibility legal-
ly for wages or some benefits to go down in labor negotiations as it
is for them to go up There is no law or requirement that makes the
Company . keep wages and benefits at the present levels The
fact of the matter is that unions often trade away wage and benefit
demands just to get 'in the door . and requiring some employees
to join the union just to keep their job . I [Company President
Leonard Snyder ] know personally of situations where unions have
traded away fringe benefits employees already had (like good vaca-
tion schedules, employee pay advances , and Christmas bonuses) just
to get dues checkoff rights The only thing a union can guarantee
is a hole in your pocket where the dues money goes from being
yours to being theirs Sure, some people can argue that unions have
forced big corporations like steel companies and auto manufacturers
to give in . Budget can't do that If Budget tried to match
the wage rates and rental rates of Hertz, Avis and National, we
would soon be out 'of business . . Recently we've made some
wage improvements With some hard work by all of us (and
Continued
318 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more below) attempted to discourage unionization, and
exposed its employees to an antiunion propaganda, film. 5
According to the credited testimony of Charging
Party Union 's president and business agent Kornegay,
one of the two most ardent union -protagonists during the
organizational campaign was Respondent 's .K Street serv-
ice employee Lyndon Headen, who was discharged by
Respondent' a week before the election, under circum-
stances to be described' (infra). The Union lost the elec-
tion by a vote of 25 to 24, with the ballots of Headen
and Perry (the latter also discharged.at the same time-
infra) challenged and not counted.
Supervisory Status of Atkins and Kokanoth
Since Respondent denies the supervisory status of at
least Israel Shenan Atkins and Chuang Kokanoth, -it • is
necessary to deal with this question.
Section 2(11) of the Act defines a supervisor to include
one possessed of authority to "assign ... or discipline
other employees, 'or responsibly to direct them . . . or
effectively to recommend such action It will
have been noted that these characteristics are listed in
the disjunctive so that, as has repeatedly been pointed
out,6 possession of any suffices to constitute its possessor
a supervisor for purposes of the Act. -
some good luck, too) we can continue to improve our wages and
benefits after the move into the airport has settled down no
union can provide anything our company and employees can't do by
ourselves And a union can risk the loss of some things you already
have while costing you money you've already got Think -about it!
[R. Exh 2; emphases . in original-] - ,
THE' UNITED STATES COURT OF APPEALS, SIXTH CIR-
CUIT, HAS SAID .?
The U S. Government and the NLRB do not guarantee employees
that the collective bargaining process starts from where you present-
ly are in wages, , insurance , pensions, profit sharing and all other con-
ditions of employment (Exact quote from the case of BENDIX'
CORP is NLRB, 400 F.2d 141, 146 (CA 6, 1968) ,
AS THE COURT-SAID,,THE TRUTH IS THAT YOU CAN
LOSE WAGES AND BENEFITS IN COLLECTIVE BARGAIN-
ING" [R Exh 3 ] .
It's true that union officials pay themselves big salaries with the
dues money they collect Improving our wages and benefits
can be accomplishedbest without the possible interruptions - and inte-
ference to business -that unions so often bring.
VOTE "NO"
(R. Exh 4) -
Speaking for a unanimous Supreme Court in NLRB v. Exchange Parts
Co, 375 U S 405, 409 (1964), Mr -Justice Harlan instructed that "Em-
ployees are not likely to miss the. inference that the source of benefits
now conferred is also the source from which future benefits must flow
and which may dry up if it is not obliged " (Cf. also Clothing Workers
(Winfield Mfg) Y. NLRB, 424 F 2d 818 (D C. Cir . 1970), characterizing
employer pronouncements there as a "fist inside the velvet glove" (id at
409) .
S It is neither alleged nor suggested that the showing of the film (R.
Exh 6) breached the Act -
e See, e g., 25 NLRB Annual Report 45 (1960), Amalgamated Local
Union 355 (Russell Motors) v NLRB, 481 F 2d 996, 999 and cases cited
(2d Cir. 1973), NLRB v Elhott - Williams Co, 345 F.2d 460, 463 (7th Cir
1965); NLRB Y. City Yellow- Cab Co., 344 F.2d 575, 580 (6th-Cir 1965);
NLRB Y. Southern Bleachery Works, 257 F 2d 235, 239. (4th Cir _' 1958),
cert. denied 359 U S 911 (1959).
Applying this criterion to the two individuals in ques-
tion, it is clear that each was a supervisor , at the times
here material, for purposes of the Act. Respondent's vice
president and chief of operations Morton.L. Snyder testi-
fied that K Street Lot Supervisor Kokanoth-who in
late 1979 executed a formal "performance evaluation" on
Atkins,' signing as the latter's supervisor (G.C. Exh. 3)-
possessed authority-over other employees there and that
management gave weight to his reports and recommen-
dations in that regard; and that Atkins, also at K Street,.'_
possessed substantially the same authority' as Kokanoth.
Atkins, who was recognized by K Street lot servicemen
including Headen 'as being in authority dver ' them, him-
self testified that his job classification is K Street "lot su-
pervisor" (since June 1, 1981; before that, "assistant lot
supervisor" to "Lot Supervisor" Kokanoth). The actions','
of Atkins in relation to the discharge of K Street service-.
man Headen (infra), including Atkins' termination memo-
randum of June 17, 1981, in regard thereto (G.C. Exhs.
5-Id and 6) as testified to by Atkins, clearly betoken and '
establish not only effective disciplinary recommendatory
authority but actual exercise of job power over subordi-
nates . Atkins was expressly characterized by Respond- -
ent's director of personnel as "the supervisor at that lo-
cation" (K Street) in an official letter to the Virginia
Employment Commission (G.C. Exh. 6b). And Respond-
ent's general manager Cohen acknowledged in his testi-
mony that both Atkins and Kokanoth gave orders to em-_
ployees "under" them which the latter were required to
carry out , and that management accorded weight to their
disciplinary recommendations.
It is accordingly found that, at the times here material,
Atkins and Kokanoth were, within the Act's definition,
supervisors of Respondent. . "
B. Intrusive Interrogation
The complaint (pars. 10 and 11) alleges that Respond- -
ent interrogated employees , ' in violation of Section
8(a)(1) of the Act, concerning their union affiliation and
activities-through its alleged agent Jody Snyder
(daughter of Vice President Morton L. Snyder) and
through its admitted supervisor, Chief Lot 'Supervisor -
Donald Lockett. -
Since the allegations concerning , Jody Snyder (com-
plaint pars . 5 and 10) were withdrawn at the trial, they
need not be dealt with here , leaving only the, allegation
involving Lockett (id. par. 11). -
Concerning Lockett, who was Respondent's lot super- -
visor at 'its Jefferson Davis Highway location as well as
its senior or chief lot supervisor at all of ,its locations,
and admittedly Respondent 's supervisor and agent within
the meaning of the Act, Respondent 's former K Street
serviceman Lyndon Headen testified credibly and with-
out contradiction that on the last day he worked for Re-
spondent, -and just prior to his discharge (June 17, 1981,
1 week prior to the Board-conducted union representa-
tion election), he was ,instructed by his supervisor Ko-
kanoth to see' Lockett, with whom he accordingly had a -
conversation at the latter 's initiation . Lockett thereupon
without informing Headen that he was not- obliged to
enter into such a discussion: - '
BUDGET RENT A CAR
. . ask[ed] me [Headen ] what did I think about the
union and how did I feel I told him at the time that
I was for it, When I told him I was for it,- he told
me, "Well , what about the others??' He said, "Did I
[Headen] know how they would vote?" I told him,
"No." I could just speak for myself •
Lockett thereupon tried to talk Headers-who, it will be
recalled, was one of the two leading union protagonists--
out of the Union, but without success, as Headen plainly
expressed. Shortly thereafter, Headen was discharged
(infra).
Headen's testimony stands totally unchallenged and,
based on my observation of his testimonial demeanor, is
credited.7 It is accordingly found that the complaint alle-
gation (par. 11) concerning interrogation by Lockett in
violation of Section 8(a)(1) is established.
C. Creation of Impression of Surveillance
It is alleged that Respondent violated Section 8(a)(1)
of the Act by creating the impression of surveillance.
Substantiation of this allegation appears to depend on a
remark made by Respondent's general manager Los-
chack that Respondent was aware of his (and another
employee's) union activities. While such a statement
might under some circumstances possibly rise to the sig-
nificance of creating the impression of surveillance, I
hardly'think that is true here. Since Loschack's union ac-
tivities were unconcealed and conducted openly and
were well known, I cannot regard the stray remark in
the course of noncoercive talk with Cohen indicating
Respondent's awareness of ,that which was plain to see„
and evident to all, as sufficient to form a predicate for a
finding of violation of the Act in this regard.
D. Solicitation of and Promises to Redress Grievances
The complaint alleges that, in May 1981, Respondent
solicited employee complaints and grievances and pro-
vided assurances that they would be redressed, through
installation of an employee "suggestion box" (par. 9 (b)); .
and that further, for the same purpose and with the same
assurance (par. 7(b), it made similar inquiries and provid-`
ed like assurances orally on June 24, 1981 (the day
before the union election), in order to derail the employ-
ees' organizational effort.
It is undisputed that Respondent installed employee
"suggestion boxes" during the Union's organizing drive,
for the avowed-purpose of soliciting their complaints and
grievances. These could have had -no other objective
than rectification or creating the mind-set and impression
thereof. e
Kristine Kay Agrafiotis, Respondent's:former Jefferson
Davis Highway and Capitol Hill counterrepresentative
and subsequent National Airport shift supervisor,
through her own choice no longer in its' employ, testified
7 Although Lockett has died in the interim , there is no reason to spec-
ulate that if he were alive he would contradict Headen Without explana-
tion, Kokanoth was not produced to testify
8 The fact , if it be such , as contended by Respondent , that it had or
may have at some previous time had a "suggestion box" or boxes, is im-
material since it is conceded that they had been removed and were re-
stored only during the Union's organizational dove
319
credibly that on June 24, 1981, the day before the Board-
conducted election, through prearrangement, she met
privately with Respondent's president and principal
Leonard Snyder at a restaurant near the Jefferson Davis
Highway rental location. Snyder plied her with questions
concerning any work complaints; after she enumerated
them, Snyder indicated these, as well as other employees'
work dissatisfactions and problems, would be taken care
of.
On the basis of the foregoing, I find that, as alleged in
paragraphs 7(b) and 9(b) of the complaint, in violation of
Section 8(a)(1) of the Act, Respondent in May and June
1981, during its employees' union organizational cam-
paign, and with knowledge thereof and in order to derail
the same, solicited employees' complaints and grievances,
and gave assurances that they would be redressed.
E. Economic Threats,, Threats of Refusal to Bargain
Collectively
The complaint (par. 8(c)) alleges that about June 17,
1981, in violation of Section-8(a)(1) of the Act, Respond-
ent at itsNational Airport location threatened employees
with loss of benefits and that it would refuse to bargain
with the Union if the employees selected the Union as
their bargaining representative. -
Respondent's current Jefferson Davis Highway shift
supervisor Christopher Robert Loschack testified that
around mid-June 1981, approximately I week before the,
opening, of Respondent's National Airport counter, he
and other employees not yet designated as shift supervi-
sors (and who voted unchallenged in the ensuing elec-
tion) were present in General Manager Cohen's office,
where its vice president Morton Snyder announced. that
if the Union prevailed in the imminent election, he "was
not going to negotiate." Although Company Attorney
Steckel interjected that in that event Snyder would ne-
=gotiate , Snyder left his statement uncorrected and un-
changed.9
I discredit Snyder's elicited testimony when he was re-
called to the witness stand much later in the trial, that he
thereupon, after correction by Steckel, indicated he
would negotiate if the Union won the election-as an
afterthought, inconsistent with preponderating substantial
credited testimony.
Respondent's former shift supervisor Kristine Kay
Agrafiotis also testified credibly that, during the union
election campaign, about a week or two-before the elec-
tion, in General Manager Cohen's office in connection
with Respondent's showing to employees of an antiunion
propaganda film, Company Vice 'President Snyder in-
formed the attending rank-and-file employees that "if
[you] went union, [you] would probably lose some of the
8 We have been instructed that testimony of an employee-even more
strongly in the case of Loschack, who is now a supervisor still in a re-
spondent employer's employ-contrary to his employer 's interest , is enti-
tled, by reason , of the hazard to his continuing in his employer's good
graces if not at peril to his very job, to added weight in the credibility
scales See Georgia Rug Mill, 131 • NLRB 1304, 1305 fn 2 (1961 ), enfd as
modified'308 F.2d 89 (5th Cir 1962), Wirtz Y B.A C Steel Products, 312
F.2d 14, 16 (4th Cir 1963)
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits that [you] have. now, like bonuses and Christmas
party and extra stuff like that."
The foregoing testimony of Loschack and Agrafiotis
was in essence corroborated by ,Lisa Hartman, also cur-
rently in Respondent's-employ as arank-and-file- counter
representative at its Jefferson Davis Highway location.l o
In his testimony on this aspect of•the ease, Respond-
ent's vice' president Morton Snyder gives his described
statements to the employees a different cant, indicating
that he made no such- definite statements but rather that
the described consequences of unionization could possi-
bly eventuate in the event of negotiations -•witli the
Union. Snyder concedes that he did tell the employees
"that the company had a right to conduct business as
usual" and that "I would not negotiate away my right to
run the business the way I saw fit."
It is of interest to note that ' in the described state of
testimonial- contradiction on this subject, although the
General Counsel produced no less than three witnesses
in support of his alleged version, Respondent, without
explanation, failed to produce any witness,to corroborate
Snyder's version. It may also have been, observed that
the statements credibly ascribed to Respondent's second
highest executive are of a character with its contempora-
neous written statements, with their skillfully blended
and shaded semanticisms,, which it was beaming at its
employees (at least some, as observed by me, with seem-
ingly modest formal education) just prior to the Board-
supervised election (see fns. 4 supra and 12 infra.)''
In this state of the record, after 'carefully comparing
testimonial demeanor as, observed, on the record as a
whole I prefer and credit the testimony of the employee
witnesses, and accordingly find the complaint allegation
(par. (c)) established by preponderating evidence.
F. Economic Sanctions
Paragraph 8(b) .of the complaint as amended alleges
that, in violation of Section 8(a)(1) and (3) of the Act, in
mid-June 1981, at its-National Airport location; Respond-
ent changed the conditions of employment of its employ-
ee Christopher Loschack by giving him a less favorable
work schedule because of his union support.
Loschack has been employed by Respondent at its Jef-
ferson Davis Highway location for about 5 years, check-
ing the status of_ rental cars and making car counts there,
and assuring that rental contracts were properly
"opened" and "closed." Since the opening of the rental
desk at National Airport, he has had the ,title of "shift
supervisor." He was one of the four employees who first
sought out the Union, and he signed a union authoriza-
tion card on April 21, 1981; and, to Respondent's knowl-
edge, he has been openly active in union espousal and
card solicitation among Respondent's employees. He also
served as an observer on behalf of the Union at the
Board-supervised representation election. -
10 See fn 9 supra -'
11 There is no indication-that Respondent's employees , at whom its
shrewdly forked phrases were tongued , were versed in the subtleties of
labor law or that they were "grammarians" (NLRB ;v Miller, 341 F.2d
870, 874 (2d Cir 1965)):
About a week before Respondent opened its car rental
counter at National Airport, Loschack's day-shift work
schedule was abruptly changed to 3 p.m. to midnight,
with Wednesday- and Thursday instead of Sunday and
Monday 'off-regarded by Loschack as substantially less
favorable than his previous schedule. The work sched-
ules regarded by Loschack as more favorable were as-
signed to employees with less seniority than Loschack,
although seniority had previously governed. When he
complained to General Manager Cohen about it, -the
latter told him he could do nothing about it--since it had
been done personally-for the first time'known-by Re-
spondent's vice president Snyder himself. In conse-
quence, Loschack was compelled to work the-'substari-
tially less favorable schedule for some 4 or 5months,
until October 1981, when the schedules were rearranged -
in accordance with seniority, as formerly.
Respondent's vice president Snyder's explanation for
the foregoing is that he himself changed Loschack's
schedule only because Snyder wished to ensure the suc-
cess of-the newly instituted operation 'at National Air-
port, Loschack being one of his best employees. Snyder
acknowledges that he was aware of Loschack's union ac-'
tivities. -
Snyder's' explanation does not ring true for two rea-
sons: viz. (1) there is no proof or indication that Los-
chack was in any way peerless or essential in his touted
capacity, particularly since, as credited proof shows, the
busiest car rental hours are from 4 p.m. to around 7 p.m:
and 10 a.m. to 2 p.m.-not before midnight or during the
late night hours; and (2) the unexplainedly lengthy dura-
tion (4 to 5 months) of the unprecedently onerous assign-
ment singling out Loschack in unique disregard of se-
niority. In view of the foregoing, as well as Snyder's
demonstrated antiunion animus, which it may be pre-
sumed would naturally be directed toward so fervent
and effective a union protagonist as Loschack and, final-
ly, Snyder's total failure to explain to Loschack his pur-
ported business concerns and alleged reason for the un-
usual assignment; I am constrained to regard Snyder's
current explanation as unpersuasive, and to find that the
action was in fact engendered by Loschack's high degree
of effective union activism, and that Section 8(a)(1) and
(3) were thereby violated as alleged. '
G. Economic Benefits
The complaint (pars. .7(a), 8(a), 9(c), and 12) also al-
leges that, in order to stem the tide of feared unioniza-
tion of its employees, Respondent shortly prior to the
June 1981 Board-conducted union representation election
announced and instituted wage increases and modifica-
tions in its bonus calculation system among its employ-
ees.
There is no doubt that Respondent announced and ef-
fectuated the across-the-board wage and bonus increases
in question as alleged, and the evidence on both sides as
well as its stipulated comparative rates of pay (G.C. Exh.
2) clearly so show. This much is not disputed. The law is
clear that such wage and bonus increases in the midst of
a union organizational campaign , as well as such timing
of announcements thereof, would normally. constitute
BUDGET RENT A CAR
plain violations of the Act.12 Respondent contends, how-
ever, that it should be excused from,the usual prohibi-
tions and. requirements: because- it allegedly instituted
these economic benefits only by reason of its advent into
its newly added location in National Airport, in order to
obtain or maintain a better, type of personnel and im-
proved efficiency, and so as to be competitive with other
car rental companies (Hertz, Avis, and National) operat-
ing there.
A,threshold infirmity in this argument is that it flies in
the face of, ignores, or crisscrosses against the fact that
the- announcements and, institution- of these economic
benefits occurred only after and during the course of the
brief union organizational campaign and indeed on the
eve of the Board-supervised union representation elec-
tion. Never before in its 20 years of operations-not even
with its advent into Dulles Airport, where presumably a
comparable competitive situation existed-had Respond-
ent (as testified to by its vice president Morton Snyder)
instituted a general pay raise.
Respondent's underpinnings for its contention are simi-
larly unpersuasive. Thus, although it claims that it
planned or contemplated the wage and bonus increases
as early as the end of 1980 and the beginning of 1981 in
connection with its preparations to bid on the National
Airport counter (some months before the outset of the
unionizing campaign), it would seem that if these eco-
nomic wage and bonus increases were contemplated
before the advent of the, union effort, and since they
were not announced or placed into effect prior thereto
or delayed until after the election, they would at least
have been reflected in some way, in Respondent's De-
cember 1980 expense projections in preparation for its
bid for that counter, since the sums involved would have
constituted a substantial added 'expense of operation.
Whether such an entry or item appears in Respondent's
December 1980 analysis in preparation for its bid could
therefore be of critical significance here, in support of
Respondent's contention as advanced in the testimony of
its principal Leonard Snyder. Since Leonard Snyder in-
dicated he was unable to remember one way or the other
this critical point, he was asked whether his- memory
would be assisted by the Company's December 1980
written analysis. He indicated it would but that he did
not know- whether it was in court. When Snyder in-
quired of his counsel whether the 'documentation was
available , his counsel requested 'a recess, which I al-
lowed. At the conclusion of the requested recess, Re-
spondent produced the alleged accountant's projection
sheet'in question, in connection with Respondent's Na-
tional Airport bid (R. Exh. 1-Id), but it concededly con-
tains no mention of any bonus. Nor has Respondent seen
fit to produce any "proposal," "bid," or other substanti-
12 See, e g, Act, Sec 8(c), NLRB v Gissel Packing Co, 395 U S. 575,
617-620 (1969), NLRB v Exchange Parts Co, 375 U S 405, 409-410
(1964),, Holmes, J , in Towne v, Eisner, 245 U S. 418, 425 (1918), NLRB v.
Spotlight Co, 462 F 2d 18, '20 (8th Cir 1972), Henry J. Siegel Co. v
NLRB, 417 F 2d 1206, 1208, 1214 (6th Cir 1969), cert denied 398 U S
959 (1970), NLRB v. Harbison-Fischer Mfg. Co, 304 F 2d 738, 739-740
,(5th Or 1962); Learned Hand, J, in NLRB v. Federbush Co., 121 F.2d
954, 957 (2d Or 1941), Components, Inc, 197 NLRB 163 (1972), Wigwam
Mills, Inc, 149 NLRB 1601, 1611, 1618 ( 1964), enfd 351 •F 2d 591 (7th
,Cir. 1965), Hudson Hosiery 'Ca, 72 NLRB 1434, 1437 (1947)
321
ating document in connection with its National Airport
bid. Nor has any accountant's testimony or any formal
financial analysis or ledger support for Respondent's de-
scribed contention been supplied." a
Furthermore, Respondent here claims (e.g., testimony
of its vice president Morton Snyder and its general man-
ager Cohen)- that it instituted these wage raises,in order
to be competitive with the Hertz, Avis, and-National car
rental companies at National Airport. We need riot dwell
on the question of how an increase in operating expenses
would improve Respondent's competitive position. But
in its antiunion campaign letter to its employees, Re-
spondent's president Leonard Snyder was telling its em-
ployees that "if Budget tried to match the wage rates
... of Hertz, Avis and National, we would soon be out
of business " (R. Exh. 2, p. 2, end of first full paragraph.)
Which, then, is true?
Under all of the circumstances, I am wholly unper-
suaded by Respondent's unsupported contention that it
announced and instituted the substantial across-the-board
wage increases and bonus system betterments, ' in the
midst of its employees' union organizational campaign
and 'shortly before the Board-supervised union represen-
tation election, only because its opening of an added lo-
cation at a counter at National 'Airport (served by its
long-established nearby facility on Jefferson Davis High-
way). I am constrained'to regard its attempt to account
for those substantial economic betterments to its employ-
ees, in the described context, by its opening of that
counter as somewhat of an elaborate "red herring" lack-
ing in plausibility or substance. It is accordingly, on the
record as a whole,, found that Respondent's described
wage and bonus increases , as well as its promises and an-
nouncements, thereof, were , as alleged in paragraphs
7(a), 8(a), 9(c), and 12 of the complaint, designed to
interfere with, restrain, and coerce employees in the' ex-
ercise of their union organizational rights, membership,
and activities -under the Act, and to cause them to reject
the Union as,their bargaining representative through eco-
nomic promises and blandishments, and 'were thereby
violative of Section 8(a)(1) of the Act.
H. Discharge of Employees
It is,- finally, also alleged (complaint par. 13 ) that, in
violation of Section 8(a)(1) and (3) of the Act, Respond-
ent 'about June 17, 1981, terminated the employment of
its employees Lyndon Headen and James Perry.
1. James Perry -
The discharge of James Perry having been nonprejudi-
cially adjusted and settled at the trial, it is unnecessary to
deal with it here. `
2. Lyndon Headen
Lyndon Byrd Headen has worked for Respondent as a
service representative during two periods of time, the
13 In the absence thereof, there is no justification for assuming that, if
such exists and were produced, it would be supportive of Respondent's
contention Cf, e.g, U.S. v Denver R.G.R.Co., 191 US 84, 91, 92 (1903);
NLRB v. Wallick, 198 F 2d 477, 483 (2d Cir 1952). -
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
later from November 1980 until his discharge on June
17, 1981, under circumstances to be described. At the
time of that discharge he was assigned to K Street, under
the supervision of Kokanoth and Atkins (supra III,A).
There is nothing in his written work record prior-to his
discharge indicative of dissatisfaction by Respondent
with his work performance , other than an alleged auto-
mobile accident for which he was discharged but never-
theless later rehired.
As soon as he was told by Atkins to clean the garage,
Headen , after obtaining the necessary cleaning imple-
ments , entered the garage , where he observed five indi-
viduals (three males and two females , none in Respond-
ent's employ and none related to Headen ). Headen rec-
ognized some of them as having been there before or on
the sidewalk in front of the nearby Franklin school.
They, or some of them ,- were apparently smoking "pot"
or marijuana . Headen had never been told to remove
Headen was an early union joiner-April 23, 1981- - such persons-who had regularly lingered there, eating,
(G.C. Exh 13). He thereafter participated actively in the
union campaign, distributing union cards, becoming, ac-
cording to the,uncontradicted testimony of Union Presi-•
dent and Business Agent Kornegay, one of the two most
ardent union protagonists-not only at K Street but at
Respondent's other locations. Among his other activities
during the union campaign, Headen not only engaged in
union discussions with fellow employees but also- with
his supervisors, Konkanoth and Atkins, openly opposing
the antiunion positions taken by Kokanoth and Atkins."
On, one occasion, when - Union Official Kornegay was
promoting the Union among employees and Atkins was
expressing disapproval on "religious" grounds, Headen
expostulated. to Atkins, "Listen, man, he's [i.e., Korne-
gay's] only.trying to help us." Since Atkins could not be
swayed, Headen finally remarked to Kornegay "in dis-
gust" that "You [Kornegay] might as well give up be-
cause .he is not going to do anything to help us.,"
On the morning of his discharge, Headen was instruct-
ed by his supervisor Kokanoth that Chief Lot Supervisor
Lockett would be around later to talk to him. Soon
thereafter,. Lockett appeared and questioned Headen on
the subject of.where he stood on.the Union-the Board-
announced election was about a week away. When
Headen informed Lockett in no uncertain terms that he
was for the Union, Lockett, after attempting unsuccess-
fully to dissuade Headen, left in a car with Kokanoth.
Shortly thereafter, around 11:45 a.m., Headen's supervi-
sor Atkins told Headen to clean up the garage.
Respondent's K Street location, on 12th and K Streets,
N.W., Washington, D.C.,. consists of an office on the
corner of 12th and K Streets and a shed to the rear
thereof, an adjoining parking lot on K Street toward
11th Street, and a garage further along in the same direc-
tion abutting on an alley parallel ' to K Street about 100
feet toward L Street (G.C. Exh. 16). A large school
building, known as Franklin Adult Education Center, oc-
cupies a large nearby corner at 12th and K Streets. Re-
spondent's vice president -Morton Snyder in his own tes-
timony characterized the neighborhood as a "transient
area" for derelicts including drug addicts who regularly
entered the K Street garage. '
14 Totally undenied .here by Kokanoth, who, without explanation, was
not called to testify As for Atkins, after first swearing he was unable to
remember any such discussions , he then conceded that the "subject of the
union" had indeed come up "general [ly]" between him and Headen, but
that his mind at the trial was "total[ly] blank" on what was said by either
of them Based on my testimonial demeanor observations , I discredit this
highly unlikely assertion , as well as his equally incredible assertion that
he ' was ignorant of Headen 's union sentiments Later in his testimony,
Atkins further conceded that he had also spoken to other employees, in
addition to Headen , about the Union, but Atkins persisted in his absurd
denial of recollection of anything he told them
drinking , smoking, and just "hanging around ," to the
knowledge of Headen 's supervisors - and without attempt
or direction on their part to remove them-nor would it
have been reasonable to expect Headen to do so by him-
self' s Based on comparative testimonial demeanor ob-
servations , I credit Headen 's denial , in contradiction to
testimony or intimations from Respondent 's witnesses
that he had previously been expressly instructed not to
tolerate-any "pot" smoking in the garage and to report
and remove any violators of that requirement . Respond-
ent's witnesses conceded there is no such requirement in
writing , claiming unpersuasively that it was or assumedly
was communicated to Headen orally.
Observing that the - persons in question-about 40 feet
from him , on the other side of the garage from Headen-
were none other or different from the usual loungers
there , harming nobody, Headen proceeded to go about
his work of cleaning up the garage . (He declined the in-
vitation of one of the loungers to take a "drag .") About
10 minutes later , while Headen was collecting trash in
the,garage , Perry entered in his car and parked it near
the loungers, on the other side from where Headers was
cleaning . Atkins , observing the "pot" smokers, said noth-
ing to them ; instead , he directed Headen (and Perry-see
III,H , 1, supra) to the office , "for smoking and drinking."
Accordingly , Headen (with Perry) went to the office, re-
maining - outside until Atkins emerged with Morton
Synder, who said to him, "Were those the two? . .. .
You know what to do , let them go." Atkins thereupon-
summarily discharged Headen (and Perry). Respondent .
continues to refuse to rescind Headen's discharge or to
reemploy him. -
Respondent 's version of and position concerning the
foregoing events--credibly established by General Coun-
sel and found as above described-is as follows.
According to the testimony of Respondent 's K Street
lot supervisor Israel Atkins, who continues in its employ
after 3 - 1/2 years, when he entered the garage on the oc-
casion in question, he observed only two persons (one '
male, one female) in addition to Headen. Although
Atkins identifies the male as Headen 's "brother". (alleged-
ly based on an introduction to Atkins by Headen some
weeks or months perviously ), I credit Headen's un-
equivocal denial that he was or is related to this man or
to any other person in the garage on the described occa-
sion . Atkins claims, but Headen denies , that both of these
individuals were seated inside of Headen's car, and
that-for-some unexplained reason-the female came out
's Headen spoke of an occasion when another employee was'severely
beaten and -robbed in the garage when he requested persons lingering
there to leave.
BUDGET RENT A CAR
while the male remained there. Based on my testimonial.
demeanor observations and the fact that Atkins demon-
strated himself to. be an, evasive witness displaying a de-
liberately "selective" recollection and testifying incon-
sistently, I much prefer and accept Headen 's contrary
testimony in this and other respects. Conceding that he
did not observe Headen smoking anything,` Atkins testi-
fied he assumed Headen had been smoking "pot" on this
occasion, in part because he (Atkins) had allegedly
warned him (Headen) on a previous occasion 16-with no
discipline imposed and unreflected in Headen's personnel
file-against "smoking reefer on the job." Atkins con-
cedes he did not tell the loungers.to leave the garage, .al-
though he also claims that on previous occasions he had
observed "pot" smokers or daily loungers in the garage
he had asked them to leave.
According to Atkins' testimony, he is unable `to "re-
member" what reason he gave Headen for his discharge.
He did testify, however, that when he reported the inci-
dent in question to Morton Snyder, immediately preced-
ing and leading to Snyder's direction to him to discharge
Headen, Atkins indicated to Snyder that he had not ob-
served'Headen smoking a "reefer," and that Snyder in-
structed him to set down on -paper what had occurred,
whereupon Atkins wrote (G.C. Exh. 5):
TERMINATION-6-17-81 -
Lyndon Headen allowing friends of his to smoke
pot in the garage. James Perry drinking [beer] in
the garage. I asked what was in the bag. [James
Perry] said it was soda.. I saw it wasn't what he
said. On several other occasions i 7 I have warned
Lyndon Head en about smoking on' the, job [pot].
Once in the garage. Another occasion after shut-
tling a car back from the airport-that was full of
[pot] smoke." ' . '
Contrary to the foregoing testimony by -Atkins, Re-
spondent's vice president Morton Snyder testified that on
the occasion in question Atkins reported to him that he
had observed Headen and Perry "drinking this" (beer)
and "smoking that" (pot) in. the K Street garage; and
that, although they both denied it to him, he summarily
directed that they be, discharged. Contrary to Atkins,
who swore he is "positive" beyond "any doubt" that he
wrote out the aforequoted termination slip on the same
day, Snyder swears that Atkins wrote it out on the fol-
lowing day. It will, of course, also have been noted that
16 As narrated by Atkins,,on this alleged occasion , some months poor
to Headen 's discharge here in question , Headen had returned ,a car to the
K Street location from National Airport While Atkins allegedly detected
"reefer" smoke in it, Atkins concedes there was no indication or admis-
sion that , on the assumption there was "reefer" smoke, Headen had cre-
ated or was responsible for it I credit Headen 's absolute denial of respon-
sibility If Headen had in fact created it, it is incomprehensible why he
would not have turned on the air conditioner or venting fan or opened
the window to dispel it No discipline in any form was imposed on
Headen , nor would it have been warranted under the circumstances, the
entire incident-if it occurred-being based wholly on a series of assump-
tions Headen credibly denies he ever even drove the car , in question
Atkins also swore he does not smoke "pot" and is unfamiliar with the
smell of it , but that its smell has been described to him, later , however,
he also testified he teamed its smell at school and elsewhere
" This is inconsistent with Atkins ' own testimony at the trial.
323
Atkins'. termination slip (G.C. Exh. 5) does not state that
he observed Headen smoking "pot," After he was shown
that slip, Snyder blandly acknowledged that it was not
"in error."
Respondent's general manager Cohen (who was, on
the occasion here under discussion, also its personnel di-
rector) confirmed that its K Street premises (garage and
alley) are frequented by vagrants . He claims that it has a
policy of ejecting such persons, but that that alleged
policy has not been communicated to its employees in
writing or through any posted bulletin. Although he
claims the policy is, or should be, imparted orally to em-
ployees, he concedes •he did not so inform Headen since
he did not hire him. In the absence of any credible proof
that he was so informed, I credit Headen's testimony to
the contrary
On the day after his discharge, • in an attempt to re-
trieve his job and to right what he felt was a rank injus-
tice, and after first having recounted to his supervisor
Kokanoth the sequence of events of the preceding day
including Chief Lot Supervisor, Lockett's visit to him on
the subject of his union views (after which Kokanoth in-
formed him that he spoke to but was unable to sway
Lockett or Cohen to rescind' Headen 's discharge),
Headen personally visited Respondent's general manager
(and then personnel director) ' Cohen at the Jefferson
Davis Highway location, to appeal to him to intercede
on his behalf. From Headen's point-of view the visit
proved disastrous, since he "there unexpectedly encoun-
tered Respondent's attorney Martin H. Steckel, with
consequences to be described. After Headen recounted
the facts as 'he' knew them, including 'his conversation
with Chief Lot Supervisor Lockett a few hours before
his discharge, Steckel telephoned Morton Snyder at the
K Street "'headquarters" and indicated to him that, from
what Steckel had heard, Headen 'should not have been
fired, and that he was on his way over. Steckel then
drove Headen to the K Street 'location. What occurred
between the two of them on the way over is in dispute;
but the fact that Headen thereafter remained discharged
is not in dispute.
Taking the witness stand in the case he was in process
of trying for Respondent, its attorney Martin H. Steckel -
swore that Respondent's vice president Morton Snyder
had 'previously informed him that he had discharged
Headen because Atkins had told him he had "seen"
Heiden smoking pot and "that lie discharged him for
that." (This,' of course; is inconsistent with Atkins' testi-
mony, supra.) Steckel further testified that, after hearing
Headen's version in Cohen's, office at Jefferson Davis
Highway, he telephoned Snyder that he was coming
over to K Street with Headen and- to keep the latter's
discharge on "hold" meanwhile. In the car on the way
over there; according to Steckel, he asked Headen if he
"had been smoking pot ,in the -garage," to which Headen
replied, "I've not, I wasn't smoking pot.... You know
that." Later on (and as amplified by Steckel on cross-ex-
amination), Steckel-asked Headen whether he had "ever
smoked pot" and; according to Steckel, Headen denied
it. However, still according to Steckel, the following col-
loquy ensued:,
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steckel: Come on, that can't be the case; it just
doesn't sound to me like that's reasonable. Are you
sure that you haven't smoked pot on some occa-
sions?
Headen: Yes, I guess I have but the few times.
Steckel: While you were at work?
Headen: Yes.
Steckel: How about when you were driving vehi-
cles, some of the company cars?
Headen: Yeah, maybe I had, when I was driving
once.
According to Steckel, when he, upon arrival at K Street,
informed Snyder of the foregoing, it was determined that
Headen's discharge should not be rescinded, and he so
informed Headen. Steckel insists-contrary to Atkins'
"positive" testimony (supra)-that Atkins' aforequoted
termination slip (G.C. Exh. 5) was predated by Steckel
on the day following Headen's discharge (i.e., June 18) to-
the preceding 'date (June 17), according to Steckel (di-
rectly contrary to Atkins" testimony) "simply to mark
the date that the incident took place." i 8
Headen, while insistently and, to my close observation,
sincerely and convincingly denying that he told Steckel
he had ever smoked "pot" on the job, claims that what
(and only what) he acknowledged to Steckel during the
ride in question that he had smoked "pot," but never on
the job. i 9 He strongly insists he has never smoked or
been under the influence of "pot" on the job. Respond-
ent acknowledges that it has had and has no policy pre-
cluding the smoking of "pot" by its employees while off
duty. 2 °
Notwithstanding his aforequoted testimony at the trial
concerning the admission allegedly made to him by
Headen on the ride from Jefferson Davis Highway to K
Street on the day following Headen's discharge, in a
letter dated January 6, 1982, to the Board's Acting Re-
gional Director Louis J. D'Amico, Steckel expressly
stated (G.C. Exh. 15, p. 3, par. 4, last sentence; emphasis
added): "It should also be noted that Mr. Headen admit-
ted to me the day after his discharge that he regularly
smoked pot while on the job." Concerning this, the fol-
lowing testimonial colloquy on the record (Tr. 668-669)
is of interest:
JUDGE OHLBAUM: Well, when you were going
back to, when you were going to K Street, rather,
with Mr. Headen in the car, on the 18th [of June
18 Steckel also, again ' contrary to Atkins ' testimony, swore that Atkins
had told him it was only a man, not a woman, he had observed in the car
on the occasion in' question Atkins was not recalled to the stand to re-
solve any of these inconsistencies •
19 On his several sojourns on the witness stand , Headen impressed me
as a forthright and honest witness, albeit lacking in much formal educa-
tion-Steckel estimates, without contradiction and with seeming approxi-
mate accuracy , that he is not even nearly a high school graduate
20 Although Respondent makes what is seemingly an elaborate pre-
tense of treating such smoking under any circumstances as serious crimi-
nal activity , it concedes that on no occasion in the past when it allegedly
apprehended employees (other than Headen) in the very act of smoking
"pot" on the job has it ever called in or notified the police And, al-
though Respondent further maintains that it considers suffering others to
smoke "pot" as equal in culpability to smoking it personally, it is unable
to cite a single employee other than Headen discharged for that reason,
even though it was apparently commonplace at its K Street location
1981], did Headen indicate to you that he had been
regularly smoking pot, while on the job?
THE WITNESS: [Attorney Steckel] No, sir.
JUDGE OHLBAUM: He did not say that?
THE WITNESS: No sir, he did not say he was reg-
ularly smoking pot.
JUDGE OHLBAUM: You're emphasizing the word
"regularly," is that correct?
THE WITNESS: Right.
JUDGE OHLBAUM: So, he did not tell you he had
been regularly smoking pot, is, that correct?
THE WITNESS: No, no, yes, sir.
JUDGE OHLBAUM: Any doubt in your mind about
it?
THE WITNESS: No.
JUDGE OHLBAUM: I'd like to read to you from
General Counsel's Exhibit 15, page 3. It appears to
be a letter that you wrote to the Regional Director
of the Board on January 6, 1982, quote: "It should
also be noted that Mr. Headen admitted to me the
day after his, discharge that he regularly smoked pot -
while on the job." That word "regularly" was used
by you. Were you mistaken in that letter?
THE WITNESS: That's an if. .
JUDGE OHLBAUM: Were you or were you not?
THE WITNESS: I was mistaken in that letter, yes
sir.
Steckel explicitly conceded that the reason for Hea-
den's -discharge was the described admission allegedly
made by Headen to him in the car on June 18, the day
after his discharge, on the way from Jefferson Davis
Highway to K Street: "[T]he deciding factor ... was
what Headen told [me] in the car. . . . Absolutely." (Tr.
654.) Respondent's vice president Morton Snyder in his
testimony concurred in this (Tr. 574).
About November 30, 1981, the State of Virginia' Em-
ployment Commission in a favorable ruling on Headen's
application. for unemployment compensation arising ' out
of the discharge in question, ruled2 i (G.C. Exh. 6A):
In the absence of evidence that would establish mis-
conduct, the Deputy can only conclude that you
[i.e., Headen] were discharged, but not for miscon-
duct, and you are, therefore, not disqualified.
Perhaps of more direct interest is a letter of December
17, 1981, from Respondent's director of personnel to that
commission ; appealing the foregoing determination. In
that letter (G.C. Exh. 6B), Respondent's director of per-
sonnel stated in-part (emphases added): i
The reason Lyndon Headon was discharged is
that he said people in the garage were smoking mari-
21 The Board has indicated that , while such rulings do not have con-
clusive effect as to issues before the Board , they are nevertheless entitled
to appropriate recognition Mitchell Plastics , 117 NLRB 597, 598 fn I
(1957), enfd as modified in other respects 260 F.2d 472 (6th Cir 1958);
Seyfert Foods Co, 109 NLRB 800, 810 fn 5 ( 1954), Sun Co of San Ber-
nardino, California , 105 NLRB 515, 521 ( 1953), enfd as modified in other
respects 215 F.2d 379 (9th Cir . 1954); Aerovox Corp , 104 NLRB 246, 247
(1953), enfd 211 F 2d 640 (D C Cir 1954), cert denied 347 U.S. 968,
(1954)
BUDGET RENT A CAR - 325
juana as observed by the supervisor at the location,
Israel Atkins. Mr. Headon, was not seen actually
smoking marijuana but he appeared to be. He had
been warned several times verbally about this previ-
ously. The people in the garage were friends of Mr.
Headon.
It will have been observed that the emphasized portions
of Respondent's letter are again inconsistent with its wit-'
nesses' testimony here. On January 6, 1982, the foregoing
decision was affirmed, on the Employer's appeal, -by the
Appeals Examiner of the Virginia Employment Commis-
Sion with findings of fact, after appearances and a deci-
sion (G.C. Exh. 6C)-calling attention to the fact that the
Employer knew about Headen's union activity and that
there was "no evidence that the claimant was in' fact
using controlled substances while on duty." (Id. p.-2.)
It will have been noted that the varying reasons pro-
vided by Respondent's witnesses and its documents, con-
cerning the true reason for Headen's discharge, suffer
from a high degree of inconsistency. In view of Headen's
convincing denials of making the unlikely and incompre-
hensible admission to Respondent's attorney Steckel on
the described drive to IC Street, and Steckel's at best de-
fective memory as demonstrated by the inconsistency of
his testimony here and his letter-to the Board's Regional
Director, I cannot but conclude, giving the matter-its
best face, that Steckel imperfectly understood what
Headen told him. In any event, Headen could hardly
have been discharged for an admission he allegedly made
subsequent to his discharge. As the General Counsel
points out, such an admission, if credited, might at best
serve as a possible predicate militating against Headen's
reinstatement in a subsequent compliance proceeding22
although, under all of the circumstances here disclosed, I
do not see how it justifiably could. I have in mind the
improbability of Headen's making such an uncalled-for
alleged admission at all, the likelihood that Steckel-who
claims he made no notes of such an important conversa-
tion, or mislaid or discarded them-misunderstood him,
especially considering Steckel's described - contradiction
between what he wrote to the Regional Director and
what he testified to under oath at the trial; and the shift-
ing, inconsistent , suspicious, and patently pretextual
framework of the varying "grounds" advanced at vari-
ous times for Headen's discharge, in the framework of
his preeminent union organizational activism and the
rebuff he delivered in, that connection to Respondent's
chief lot supervisor Lockett a scant few hours before his
precipitate discharge.
After carefully weighing the entire congeries of cir-
cumstances presented, within the frame of reference of
Respondent's avowedly strong antiunion animus, Hea-
den's preeminence in union organizational activity, the
shifting and implausible grounds assigned for his dis-
charge, and my close observations of the testimonial de-
meanor of the witnesses, I am persuaded that the reasons
advanced by Respondent for that discharge, including
22 The General Counsel's trial motion to strike from the record, on
that basis, all testimony concerning the June 18, 1981 admission ascribed
to Headen is denied
the most recent-i.e., the alleged postdischarge "admis-
•sion" on the drive from- Jefferson Davis Highway to K
Street, characterized as "the deciding factor"-were and
are pretextual, and that ` the real reason was Headen's
strong prounionism and his express refusal to relinquish
it a scant few hours before he was fired, shortly before
the razor-close election. Respondent has failed by-pre-
ponderating- substantial credible evidence to rebut the
General Counsel's prima facie case and has failed persua-
sively to establish that in any event it would have dis-
charged Headen for any. of the reasons . assigned. Cf.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981). It is accordingly found and determined
that those "reasons" were and are pretextuous, the true
reason being Headen's protected concerted a6tivities,23
and that therefore Headen's discharge was in violation of
Section 8(a)(1) and (3) of the Act as alleged in the com-
plaint. 2 4 .
III. THE REPRESENTATION CASE
In view of the withdrawal of Charging Party's objec-
tions to the June 25-26, 1981 election in NLRB Case 5-
RC-11519 -(previously consolidated herewith), thereby
mooting those objections, that case was during trial, sev-
ered and remanded to the Regional Director for such
action as may be appropriate, including certification- of
the results of that election.
On the foregoing findings25 and the entire record, I
state the following - -
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By engaging in the acts set- forth and found in sec-
tions III,B (interrogation), II;D (solicitation of and assur-
ances to redress complaints and grievances), II,E (threat
of loss of benefits and to refuse to bargain collectively),
II,F (economic sanctions), II,G'(announcement and insti-
tution of economic benefits), and II, I,H,2 (discharge of
employee Heiden), supra, Respondent has interfered
with, restrained, and coerced employees in the exercise
of their rights under Section 7 and continues to do so,
thereby violating Section 8(a)(1) of the Act.
23 As pointed out above, the Union lost the representation election I
week following Headen's discharge , by only one vote; with Headen's
(and also Perry's) ballot challenged because not appearing on the eligibil-
ity list in view of his (and Perry 's) discharge the previous week
24 Respondent's "Second Defense" in its answer, alleging untimeliness
under Sec 10(b) of the Act , is dismissed Since that section requires only
that alleged unfair labor practices shall not predate by more than 6
months'the filing of a charge, and since the complaint may properly en-
compass additional matters uncovered during investigation of the charge
(NLRB v Font Milling Co, 360 U S 301 (1959), National Licorice Co Y.
NLRB, 309 U S 350, 367-369 (1940), NLRB v Allis-Chalmers Corp, 563
F 2d 674, 676 (5th Cir. 1977); NLRB v Jack LaLanne Management Corp,
539 F.2d 292, 294-295 (2d Cir 1976), NLRB v. Braswell Motor Freight
Lines, 486 743, 746 (7th Cir. 1973), Texas Industries v NLRB, 336 F 2d
128, 132 (5th Cir 1964), NLRB v Kohler Co, 220 F.2d 3, 6-8 (7th Cir.
1955); Wayne Electric, 226 NLRB 409, 415-416 (1976), North Country
Motors, 133 NLRB 1479 (1961); Dal-Tex Optical Co, 130 NLRB 1313
(1961)), that defense is without merit . In view of the dispositions made in
sec II , supra, Respondent's redundant "Fourth Defense" is likewise dis-
missed
25 A summary of those findings, with related reference material, is
contained in the attached Appendix A [omitted from publication]
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By engaging in the acts set forth and found in sec-
tions III,F (economic sanctions) and II,H,2 (discharge of
employee Headen),-supra, Respondent has discriminated;
and continues to discriminate in regard to the hire,
tenure, and terms and conditions of employment of its
employees, thereby discouraging membership in a labor
organization, in violation of Section 8(a)(3) of the Act.
4. -The foregoing unfair -labor -practices and -each- of
them have affected, are affecting and unless permanently
restrained and enjoined -will continue to affect commerce
within the meaning of ' Section 2(6) and (7) of the Act.
5. It has not been established by substantial- credible
evidence that Respondent- has engaged in creating the
impression of surveillance, as alleged in paragraphs 9(a)
and 15 of the complaint herein.
REMEDY
Having been found to have terminated the employ-
ment of an employee and in-that and another respect to_
have discriminated against employees because of their
activities protected under the Act, and to have interfered
with, restrained, and coerced employees in the exercise
of their Section 7 rights, thereby violating Section 8(a)(3)
and (1) of theAct, Respondent should, as is usual-in such.
cases, be required to cease and desist therefrom; and also
to offer unconditional and full reinstatement to the dis-
charged employee and to make him whole- for any
wages, accruals, bonuses, and benefits (including vaca-
tions and vacation pay, and hospitalization and other
medical benefits, including reimbursement for any ex-
penses incurred by reason of any cancellation, withdraw-
al, or lapse thereof by Respondent) lost or reduced and
which may be due, plus interest, and with restoration of
seniority, all as determinable in -a suppplemental backpay
proceeding if necessary. Sums and interest due should be
computed as explicated in F. W. Woolworth Co., 90
NLRB 289 (1950), Isis Plumbing Co., 138 NLRB' 716
(1962), and Florida Steel Corp.,-231 NLRB 651 (1977).
All references in Respondent's records indicating dis-
charge of Lyndon Headen on, or about June 17, 1981, for
cause should be deleted, and he should be so informed in
writing; and Respondent should be, required to desist
from so indicating to any prospective employer or refer-
ence-seeker. Respondent should also be required to pre-
serve and make available • to the Board's agents its books
.and records for,backpay and compliance determination
purposes; and to post the.usual notice to employees. In
view of Respondent's serious, pervasive, and deliberate
violations of the Act which,thrust at "the very-heart of
the Act"26 Respondent should also be required to cease
and desist from • further violation of its provisions.27. ,
On these findings of fact Wand conclusions of law and -
on the entire record, I issue the following recommend-
ed2s
28 A. J Krajewski Mfg. Co., 180 NLRB 107 (1970) -
27 NLRB v. Entwistle Mfg Co, 120 F.2d 532, 536 (4th Cir 1941)
28 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and - Regulations , the. findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules , be adopted by the
Board and all objections - to them shall be deemed waived , for all pur-
poses -
ORDER
It is recommended that the Respondent, Budget Rent
A Car of Washington, Inc., Washington, D.C., its-offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from - •
(a) Interrogating employees, in violation of the Nation-
al Labor Relations Act, concerning their or other em-
ployees' union or other protected organizational mem-
bership, affiliation,, sympathies, or activities. -
(b) Soliciting employees' complaints or grievances, or
promising to redress them, in violation of said Act, in
order to discourage employees from union organizational
representation or activities. - - - •
(c),Threatening employees with loss of benefits, in vio-
lation of the Act, in the event of selection by employees
of a collective-bargaining representative.' -
(d) Threatening employees, in violation of the Act,
that it would refuse to bargain with' a union if selected
by employees as their bargaining representative.
(e) Changing conditions- of employment of an employ-
ee by assigning . him or her to -a less favorable work
schedule, or otherwise, because of his or her support for
a union as bargaining representative under the Act.
(t) Announcing, promising, placing into effect, or
paying increased wages or^wage rates, improved bonus
or bonus system, or any other economic benefit or emol-'
ument, in order to encourage employees to reject a union
as their bargaining I representative or in order to refrain
from exercising any other right guaranteed • by the Act.
(g) Terminating the employment of, or otherwise dis-
criminating against, any employee because of his or her
union membership; affiliation, sympathy support, activity
or assistance, or so as to discourage- such; or so as to
interfere with, restrain, or coerce him or her or any
'other employee in the exercise of any right guaranteed
by the Act. - - r '
(h) In any other manner interfering with, restraining,
or coercing any employee in the exercise of the right to
self-organization;, to form, join, or assist any labor organi-
zation; to bargain collectively through representatives of
his or her own -choosing; to engage in concerted activi-
ties for the purpose of collective bargaining or other
mutual aid,or protection; or to refrain from any and all
such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act. -
(a) Offer Lyndon Byrd Headen ' immediate, full, and
unconditional reinstatement to his former job with Re-
spondent (or,, if not available, a substantially equivalent -
job with Respondent), without prejudice to his seniority
and other rights, privileges, wages, benefits, and emolu-
ments, including but not limited to any and all wage and
pay scale increases and progressions as.if not discharged -
on or about June 17, 1981; and make him whole 'for any ,
loss of income (including overtime, holiday and vacation
pay, and reimbursement for all hospitalization, surgical,
medical, and other payments or obligations incurred by
reason of any cancellation, withdrawal, or nonpayment.
of any applicable insurance coverages in consequence of
Headen's discharge on or about June -17, 1982), together
BUDGET RENT A CAR
with interest in the manner set forth in the remedy por
tion of this decision
(b) Remove from all of Respondents books and
records any entry or reference indicating or to the effect
that the discharge of Headen was for or related to the
smoking use or possession by him or another of man
Juana pot or other unlawful or proscribed or con
trolled substance or for any other reason related to his
job performance and promptly notify Headen in writing
that such entries have been removed and that evidence
of the discharge will not be used as a basis for any future
personnel action against him and refrain from making
any such statement voluntarily or in response to any in
quiry from any employer prospective employer employ
ment agency unemployment insurance office reference
seeker or credit or character inquiry
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its locations in Washington D C and the
metropolitan area thereof copies of the attached notice
327
marked Appendix B 29 Copies of the notice on forms
provided by the Regional Director for Region 5 after
being signed by the Respondents authorized representa
tive shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered defaced or covered by any other maten
al
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that paragaraph 9(a) of
the complaint is dismissed and that Case 5-RC-11519
having been severed herefrom is remanded to the
Board s Regional Director for its Region 5 for such
action as may be appropriate
29 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board