Dollar Thrifty Automotive Group

National Labor Relations Board - Board Decisions

Jan 28, 2016

12-RC-143409 (N.L.R.B. Jan. 28, 2016)

1
NOT TO BE INCLUDED
IN BOUND VOLUMES
PMH
Orlando, FL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
Employer
and Case 12-RC-143409
UNITED SERVICE WORKERS UNION, LOCAL 74,
IUJAT
Petitioner
DECISION AND CERTIFICATION OF REPRESENTATIVE
The National Labor Relations Board, by a three-member panel, has considered objections
to an election held on January 29, 2015, and the hearing officer’s report recommending
disposition of them. The election was conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 27 for and 22 against the Petitioner, with no void or challenged
ballots.
The Board has reviewed the record in light of the exceptions and briefs, has adopted the
hearing officer’s findings1 and recommendations,2 and finds that a certification of representative
should be issued.

1 The Employer has excepted to some of the hearing officer's credibility findings. The Board's
established policy is not to overrule a hearing officer's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are incorrect. Stretch-Tex Co.,
118 NLRB 1359, 1361 (1957). We have carefully examined the record and find no basis for
reversing the findings.
2
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have been cast for the United
Service Workers Union, Local 74, IUJAT, and that it is the exclusive collective-bargaining
representative of the employees in the following appropriate unit:
Included: All full-time and regular part-time Dollar Thrifty rental
sales agents (RSAs), RSA leads, and cashiers, employed by the
Employer at its DTG Orlando Airport location located at 9118 Jeff
Fuqua Blvd., Orlando, FL 32827.

We do not rely on the hearing officer’s adverse inference rulings. In addition, we do not
pass on the Employer’s exceptions to the hearing officer’s exclusion of certain text messages on
hearsay grounds. Even if considered, this evidence would be insufficient to establish
objectionable conduct.
Member Miscimarra joins his colleagues in not relying on the adverse inference drawn by
the hearing officer. He believes the hearing officer erred in drawing an adverse inference from
the Employer’s failure to call Location Manager Brady Warner. An adverse inference may be
drawn when a party fails to call a witness who may reasonably be assumed to be favorably
disposed to the party regarding any factual question on which the witness is likely to have
knowledge. See, e.g., International Automated Machines, 285 NLRB 1122, 1123 (1987), enfd.
861 F.2d 720 (6th Cir. 1988). It is not reasonable to assume that Warner was favorably disposed
towards the Employer, considering that the Employer had suspended him at the time of the
hearing. Member Miscimarra further believes that the hearing officer erred in rejecting as
hearsay text messages sent by Warner to employee Abdel “Todd” Bendahou. Hearsay evidence
is admissible in Board proceedings. See RJR Communications, Inc., 248 NLRB 920, 921 (1980).
Moreover, the hearing officer admitted the evidence at the hearing over the Petitioner’s
objection, and then sua sponte reversed his ruling after the hearing was closed. This procedure
deprived the Employer of the opportunity to present the evidence by other means. For these
reasons, Member Miscimarra would reverse the hearing officer’s post-hearing evidentiary ruling.
Even considering this evidence, and even absent the adverse inference discussed above,
however, Member Miscimarra agrees with his colleagues that the Employer has established, at
most, that Warner engaged in objectionable conduct affecting one employee, and he joins in
overruling the objections on that basis.
2 We adopt the hearing officer’s recommendation to overrule the Employer’s objections solely
on the ground that we find that the evidence shows, at most, that Location Manager Brady
Warner engaged in objectionable conduct affecting one employee (Ali Khalil), which is
insufficient to affect the results of the election. There are no exceptions to the hearing officer’s
findings that Warner did not solicit authorization cards or encourage the filing of the
representation petition.
3
Excluded: All clerks, clerk leads, lot attendants, express agents,
Instant return representatives, office clerical employees,
administrative employees, confidential employees, security
representatives, professional employees, managers, all other
employees, and guards as defined in the Act.
Dated, Washington, D.C., January 28, 2016.
________________________________
Mark Gaston Pearce, Chairman
________________________________
Philip A. Miscimarra, Member
________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD