Hertz Corp.

National Labor Relations Board - Board Decisions

Mar 9, 1995

316 N.L.R.B. 672 (N.L.R.B. 1995)

672
316 NLRB No. 110
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent asserts that the judge was biased against the Re-
spondent. After full consideration of the record and the judge’s deci-
sion, we find no evidence of bias.
2 We adopt the judge’s recommendation to set the election aside
because the two-page summary of the Respondent’s 401(K) plan that
was distributed to employees during the campaign conveyed the im-
pression that the employees would lose the 401(K) plan immediately
on choosing union representation. The Respondent’s oral explanation
of the negotiation process was insufficient to dispel this impression.
Cf. E & L Plastics Corp., 305 NLRB 1119, 1120 (1992) (finding
8(a)(1) violation where similar impression conveyed and not dis-
pelled). The Respondent’s explanation suggested that the employees
would lose the plan on becoming unionized, subject to possible res-
toration on the completion of negotiations. Thus, the impression re-
mained that unionization itself would trigger the loss of the plan, and
that loss would continue throughout negotiations unless and until it
was restored.
3 Because the threat of the loss of the 401(K) plan was not alleged
as an unfair labor practice, we shall delete the references to the plan
from the Order and notice, and from the remedy and conclusions of
law section of the judge’s decision.
The Hertz Corporation and United Automobile,
Aerospace, Agricultural Implement Workers of
America, UAW. Cases 34–CA–5684, 34–CA–
6104, and 34–RC–1108
March 9, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On September 27, 1994, Administrative Law Judge
Jesse Kleiman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, the
Hertz Corporation, Windsor Locks, Connecticut, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
‘‘(c) Threatening employees with layoffs and other
loss of employment and with loss of benefits including
health benefits if they engaged in union activities, so-
licited the Union to represent them in collective bar-
gaining, or became represented by a union.’’
2. Delete paragraphs 1(l) and 2(b) and reletter the
subsequent paragraphs.
3. Substitute the attached notice for that of the ad-
ministrative 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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate our employees concerning
their union activities and the union activities of other
employees.
WE WILL NOT create the impression that we are
keeping under surveillance the activities of our em-
ployees on behalf of the Union or any other labor or-
ganization.
WE WILL NOT threaten our employees with layoff or
other loss of employment and with loss of benefits in-
cluding health benefits because of the union activities
of our employees or if they solicit and/or become rep-
resented by the Union or any other labor organization.
WE WILL NOT inform our employees that it would
be futile for them to select the Union or any other
labor organization as their bargaining representative.
WE WILL NOT solicit grievances from our employees
with explicit and implicit promises to rectify them.
WE WILL NOT discriminatorily enforce our rule pro-
hibiting noncompany business during working time or
in working areas against our employees.
WE WILL NOT promulgate and enforce a rule prohib-
iting our employees from engaging in union activities
during working hours.
WE WILL NOT inform our employees that they are
being disciplined because of their union activities on
behalf of the Union or any other labor organization.
WE WILL NOT promise employees benefits and no
layoffs if our employees refrain from engaging in
union activities on behalf of the Union or any other
labor organization.
WE WILL NOT suspend or otherwise discipline our
employees if they assist the Union or any other labor
organization and engage in concerted activities.
673HERTZ CORP.
WE WILL NOT discharge or otherwise discriminate
against our employees in order to discourage our em-
ployees’ union activities or their participation in pro-
ceedings conducted by the Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole Samuel Divine for any loss
of earnings he may have suffered because of his sus-
pension and subsequent termination together with in-
terest.
WE WILL remove from our personnel records any
and all references to the suspension and termination of
Samuel Divine, and WE WILL notify him in writing that
this has been done, and that evidence thereof will not
be used against him in any way.
THE HERTZ CORPORATION
William E. O’Connor, Esq., for the General Counsel.
Fred S. Lerner, Esq. and H. Reed Ellis, Esq. (De Maria,
Ellis, Hunt, Salsberg, & Friedman, Esqs.), for the Re-
spondent.
Robert Monahan and Linda K. Lewis, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On the basis
of a charge and amended charge filed on May 11 and June
25, 1992, respectively in Case 34–CA–5684 by United Auto-
mobile, Aerospace, Agricultural Implement Workers of
America, UAW (the Union), a complaint and notice of hear-
ing was issued on June 25, 1992, against the Hertz Corpora-
tion (the Respondent), alleging that the Respondent had en-
gaged in certain unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act). By answer received July 9, 1992, at the Board, the
Respondent denied the material allegations in the complaint.
On September 17, 1992, the Board conducted an election
among the Respondent’s employees in an appropriate unit in
Case 34–RC–1108. The Union lost the election by a vote of
18 for and 22 against the Union. Objections to the election
were filed by the Union on September 30, 1992, and on Oc-
tober 27, 1992, the Regional Director for Region 34 issued
his Report on Objections to the election. By Order issued on
November 9, 1992, Cases 34–CA–5684 and 34–RC–1108
were consolidated for hearing. A hearing on these consoli-
dated cases was held before me on March 17, 18, 19, 30,
and 31, 1993, at the end of which the hearing was closed.
On May 6, 1993, a complaint and notice of hearing issued
in Case 34–CA–6104 alleging that the Respondent violated
Section 8(a)(1), (3), and (4) of the Act. By answer received
May 20, 1993, the Respondent denied the material allega-
tions in this complaint. By Order issued on June 4, 1993, I
granted the General Counsel’s motion to reopen the record
in the above proceedings and consolidated Cases 34–CA–
5684, 34–CA–6104, and 34–RC–1108 for hearing on the
complaint allegations in Case 34–CA–6104. The hearing was
held before me on September 8 and 9, 1993. Subsequent to
the close of the hearing, the General Counsel and the Re-
spondent filed briefs.
On the entire record and the briefs of the parties and on
my observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material, is and has been a
Delaware corporation with an office and place of business in
Windsor Locks, Connecticut, engaged in the operation of a
car rental business at Bradley Airport in Windsor Locks,
Connecticut. During the preceding 12 months, the Respond-
ent in its business operations derived gross revenues in ex-
cess of $500,000 and purchased and received at its Bradley
Field facility products, goods, and materials valued in excess
of $50,000 directly from points outside the State of Con-
necticut. I therefore find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Automobile, Aerospace, Agricultural Implement
Workers of America, UAW is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE APPROPRIATE UNIT
It is undisputed and I find that the following employees
of the Respondent constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time counter sales rep-
resentatives, vehicle service attendants, mechanics and
bus drivers employed by the Employer at its Bradley
Airport, Windsor Locks, Connecticut facility; but ex-
cluding all office clerical, transporters, and other em-
ployees, and all guards, professional employees and su-
pervisors as defined in the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint in Case 34–CA–5684 alleges that the Re-
spondent unlawfully interrogated employees regarding their
union activities, asked employees to ascertain and disclose
the union membership, activities, and sympathies of other
employees; created the impression among employees that
their union activities were under surveillance; threatened em-
ployees with layoffs or discharge and loss of benefits such
as health benefits if they engaged in union activities; in-
formed its employees that it would be futile to select a union
as their bargaining representative; promulgated and main-
tained a rule prohibiting employees from engaging in union
activities during working hours on the Respondent’s prop-
erty; informed employees they would be disciplined because
of their union activities; solicited employee complaints and
grievances and promised employees increased benefits and
improved terms and conditions of employment; and sus-
pended employee Samuel Divine in violation of Section
8(a)(1) and (3) of the Act.
The complaint in Case 34–CA–6104 alleges that the Re-
spondent unlawfully interrogated employees about their pro-
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Connelly tesitifed that about ‘‘three months’’ prior to his appear-
ance as a witness for the Respondent in this case he had been pro-
moted again to a station manager’s position by the Respondent.
tected concerted activities and terminated employee Samuel
Divine in violation of Section 8(a)(1), (3), and (4) of the Act.
A. The Evidence
Sometime in February 1992, garage workers Roberto Diaz
and John Youhees informed lead courtesy busdriver Samuel
Divine that they had contacted a Teamsters Union and ar-
ranged a meeting with employees. When Divine was told by
another employee that Erlene Fitzpatrick, the Respondent’s
Hartford City manager, knew about the meeting Divine ap-
prised Diaz of this and the meeting was canceled. Fitzpatrick
acknowledged that she had heard talk among ‘‘people’’ in
January and February 1992 about union meetings.
Divine then contacted the Greater Hartford Council of
Unions in order to help the employees ‘‘make an informed
decision’’ regarding the choice of a union. On March 23,
1992, Divine met with Union Representative Joseph Calvo
and a meeting with employees was arranged for April 2,
1992, to be held at Friendly’s Restaurant in Enfield, Con-
necticut, at 10 a.m. Subsequently, but prior to the date of this
meeting, Divine spoke to about 12 employees about the April
2, 1992 meeting, particularly with those employees who
worked on the night shift with him, including William Davis,
Chris Vachon, Maxine White, Robert Diaz, John Youhees,
John Connelly, and Jerry Peletier. Divine testified that these
conversations took place primarily in the breakroom since his
position as lead busdriver made it difficult to speak with em-
ployees elsewhere.
Also prior to the April 2, 1992 meeting, Divine spoke to
a gathering of employees in the lunchroom about the Union.
One of the employees asked Divine to explain what a
‘‘closed shop’’ was and Divine responded that it was ‘‘where
everybody joins the union’’ and ‘‘if people didn’t join the
union they might have to look for employment somewhere
else.’’ Employee John Connelly asked Divine if he was
threatening him and Divine answered, ‘‘John, I’m not threat-
ening you at all. I’m explaining what a closed shop is.’’
Connelly testified that he could not recall being at any meet-
ing wherein Divine discussed a ‘‘closed shop.’’ Connelly had
been employed by the Respondent as a station manager from
October 13, 1989, until March 23, 1992, when he was laid
off but given the opportunity to accept a job as a busdriver
again. Connelly had been lead busdriver before he became
a station manager and his return to a busdriver’s position re-
duced him to a rank lower than Divine who was now the
lead busdriver at the Bradley Field facility.1
Divine also testified that he asked employees Jerry
Pelletier in the breakroom if he was still interested in the
Union and that Pelletier said that he was. Divine then told
him about the April 2, 1992 meeting with the Union at
Friendly’s Restaurant. However, Pelletier denied ever having
a conversation with Divine in the breakroom about the
Union.
Maxine White, a counter service representative (CSR) tes-
tified that Divine had advised her about the union meeting
on April 2, 1992, and that she then told CSRs Lisa Holmes,
Lisa Scribner, and Nichole Chalifoux about the meeting.
White related that she spoke to these employees in the
breakroom or at the counter when there were no customers
present. White stated that the Respondent had placed no re-
strictions as to what subjects the employees could discuss
among themselves at work. Scribner testified similarly as to
the lack of any restrictions regarding topics of conversation
between employees at work or at work stations. White added
that Scribner advised her that she was not interested in at-
tending the meeting with the Union, and White could not re-
call Chalifoux’s response. Chalifoux denied speaking to
White about the April 2, 1992 meeting and Scribner testified
that she was not told about the meeting ‘‘until the day that
they had one.’’
1. The events of April 2, 1992
Seven employees met with Union Representatives Calvo
and Robert Monahan on April 2, 1992, at 10 a.m. in
Friendly’s Restaurant, including Divine and White. The
union representatives discussed the Union, distributed author-
ization cards, and gave employees an ‘‘Organizing Informa-
tion’’ pamphlet which included ‘‘do’s and don’ts’’ for em-
ployee organizers. All seven employes signed the union cards
and Divine was given extra cards to obtain additional em-
ployee signatures thereon.
Erlene Fitzpatrick acknowledged that prior to April 2,
1992, she knew that there was going to be a union meeting
but not the actual date or place thereof, but she could not
recall who had told her this. Fitzpatrick then informed Scott
Sider, the Respondent’s regional vice president, New Eng-
land region, about it. Fitzpatrick testified that on April 2,
1992, she was informed by ‘‘two or three people’’ that a
union meeting had taken place that day. While Fitzpatrick
was unsure and uncertain as to who had told her about the
meeting, she did mention ‘‘Lisa Scribner, but I’m not cer-
tain.’’ Fitzpatrick related that she spoke to several employees
during the morning and afternoon of that day, in her office
and in the upstairs breakroom, to make sure that no em-
ployee, ‘‘Felt threatened about their job . . . as far as the
union is concerned.’’
Lisa Scribner testified that on April 2, 1992, she was di-
rected by one of the managers to see Fitzpatrick in the up-
stairs breakroom which she did. Fitzpatrick asked her how
she felt about ‘‘what was going on,’’ and Scribner under-
stood this to be an inquiry about the union activity taking
place at the Respondent’s Bradley Field facility. Scribner
told Fitzpatrick that she ‘‘was sick and tired of hearing about
all the stuff that’s been going on with the union,’’ and that
she was against the Union and didn’t want to hear anything
more about it. Fitzpatrick told her that she couldn’t under-
stand how people that worked for her would want to pay to
have to come to work, and, that she would be talking to
other employees about how they felt about what was going
on. Scribner added that no mention was made of employees
Sam Divine or Maxine White in this conversation which was
the only one she had with Fitzpatrick about the Union.
Regarding this conversation, Fitzpatrick testified that she
had met with Scribner because Station Manager Jeff Wilcox
had told her that Scribner felt threatened about the Union and
Fitzpatrick wanted to make sure that no employee felt threat-
ened regarding their employment status. Fitzpatrick admitted
that she had not asked Scribner as to who it was that alleg-
edly threatened her, and Scribner, herself, denied being har-
assed or threatened at all although she did acknowledge tell-
675HERTZ CORP.
2 Chalifoux was promoted from CSR to group leader on March 10,
1993, about 1 week before her appearance as a subpoenaed witness
for the General Counsel in these proceedings.
ing Wilcox that she was sick and tired of all the talk about
the Union.
Ann Marie Meyers, a busdriver at the time, was also in-
structed to meet with Fitzpatrick in the upstairs breakroom
by a station manager. Meyers testified that Fitzpatrick asked
her if she had heard anything about a union. After Meyers
responded that she had heard talk about it but didn’t know
what was going on, Fitzpatrick asked her why she felt the
employees wanted a union. Meyers explained to Fitzpatrick
that it was because of the layoff of two managers one of
whom was rehired as a busdriver, presumably fearing other
employee layoffs. Fitzpatrick asked Meyers if she had signed
‘‘any kind of a card or something,’’ and then told Meyers
that some of the other major companies in the area who had
unions were laying off employees and that the ‘‘union would
not secure our jobs.’’ In a prior written statement concerning
this conversation, given to Divine, Meyers did not mention
that Fitzpatrick had asked her if she signed ‘‘a card or some-
thing.’’
Fitzpatrick also questioned CSR Nicole Chalifoux2 on two
occasions about the Union presumably on April 2, 1992,
since Chalifoux, although unsure of the date of these con-
versations, appeared to testify that they occurred on the same
day that ‘‘a lot of people’’ were called up. The first con-
versation occurred at the back entrance of the facility and
Fitzpatrick asked Chalifoux if anybody was bothering her
about the Union. After Chalifoux answered, ‘‘[N]o,’’
Fitzpatrick told her that her concern was that someone might
be bothering or harassing Chalifoux. Fitzpatrick told
Chalifoux that she could not understand why anyone would
come to work and pay to do so, and Chalifoux agreed to not
understanding this either. Later that day, Fitzpatrick called
Chalifoux to her office and for a second time asked her if
anyone was bothering her about the Union to which
Chalifoux again said, ‘‘[N]o.’’ Chalifoux told Fitzpatrick that
it was annoying that people were angry at each other because
of the Union, and that employees were being secretive, and
that everybody was tense. According to Chalifoux no names
of other employees were mentioned in either conversation
and Chalifoux stated that Fitzpatrick was ‘‘the one concerned
to see if anybody was being bothered.’’
Fitzpatrick also called a number of garage workers to the
upstairs breakroom that day to view a safety video. Diaz tes-
tified that at the conclusion of the video, Fitzpatrick told the
employees that if they think that with a union they could not
get laid off they were wrong, that even with a union employ-
ees with three warnings could be terminated. Fitzpatrick list-
ed several prominent companies with unions representing
their employees who were experiencing layoffs. She also told
them that if they wanted union representation to go ahead
since they would be paying with their own money for it.
Fitzpatrick advised them that if anyone was going around to
employees with ‘‘green cards’’ and threatening them to sign
it, to report this to the station managers or herself personally
and she would take care of it. Fitzpatrick acknowledged
showing safety videos in the breakroom ‘‘at the same time
all this was going on.’’
It is unclear as to how many other employees were ques-
tioned by Fitzpatrick that day, April 2, 1992. Scribner testi-
fied that CSR Debbie Cambra told her that she also had been
called upstairs to speak to Fitzpatrick that day.
As regards Fitzpatrick’s account of the events described
above, to say the least it was contradictory, equivocal, incon-
sistent, and contrary to the testimony of other witnesses and
evidence in the record, and also as to her own prior state-
ments. For example, contrary to her own testimony given at
the hearing and to that of Scribner’s, in a dictated statement
of the events of April 2, 1992, dated April 3, 1992,
Fitzpatrick recorded that:
On April 2, 1992, Judy Williams advised me that she
was being harassed by some of the people who were
going to a union meeting at 10 a.m. I was walking
through the lot and Lisa Scribner seemed concerned
about something, so I told her to come to my office and
I would speak with her. She said people told her that
if she didn’t sign the Union card and it came in, she
would be laid off. Neither employee mentioned any
names.
Additionally, in an affidavit given to a Board agent on
June 2, 1992, in Case 34–CA–5684, Fitzpatrick claimed that
Nichole Chalifoux and Lisa Scribner had complained to her
that Maxine White was bothering them about the Union.
However, in Fitzpatrick’s above statement she had stated that
Scribner had mentioned no names of employees allegedly en-
gaged in such conduct. Moreover, Williams testified that she
had identified Maxine White to Fitzpatrick as being the per-
son who was bothering her by constantly talking to her about
the Union. Fitzpatrick’s affidavit also states that Scribner or
a garageman complained to her that Sam Divine and some-
one else had harassed them to attend a meeting with the
Union and that they didn’t want to go, and that Scribner had
also told her that people had threatened her during the after-
noon of April 2, 1992, again contrary to at least Scribner’s
testimony at the hearing as well as Fitzpatrick’s April 3,
1992 statement. Additionally, Fitzpatrick failed to mention
either Judy Williams or Jeff Wilcox in her affidavit.
Fitzpatick testified as a witness for the Respondent after
hearing the testimony of the General Counsel’s witnesses,
Scribner and Chalifoux, who had each denied that Maxine
White’s name was mentioned during their conversations with
Fitzpatrick on April 2, 1992, and at least Chalifoux had told
Fitzpatrick that she was not being bothered by anybody about
the Union when asked about this by Fitzpatrick. Fitzpatrick
now testified that it was a station manager who had apprised
her that some employees were upset since they heard talk
that ‘‘[i]f they didn’t sign a [Union] card, they wouldn’t have
their job.’’ Fitzpatrick identified Station Manager Jeff Wilcox
as having told her that Lisa Scribner was ‘‘visibly shaken
and upset,’’ and that she therefore called Scribner in ‘‘and
asked her if she was being threatened or anything like that.’’
However, Fitzpatrick had also testified that Scribner, Judy
Williams, and perhaps Chalifoux had come to her to com-
plain that they were being constantly spoken to at their
counterpositions about the need to sign the Union’s author-
ization cards, although also admitting that she had requested
Scribner to speak to her not the other way around.
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Williams was promoted to the position of dispatcher about a
week before the heaing commenced in these proceedings.
4 The Respondent in its brief asserts that this shows that Divine
lied to White concerning this conversation as affecting his credibil-
ity, I do not agree. Whatever Divine seems to have omitted from this
conversation in his testimony it did not contradict or oppose what
White had testified to since it appeared that Divine was in effect
summarizing what the jist of the conversation was, that basically he
was ‘‘pre-warning her’’ not to talk about the Union or do anything
because Fitzpatrick knew about the union activity. Other than a lack
of recall, Divine would have no reason to ‘‘lie’’ about the content
of this conversation since White was an active union adherent as he
was.
Fitzpatrick testified that she specifically spoke to Ann
Marie Meyers in the breakroom and Nicole Chalifoux in her
office because she wanted to make sure that they did not feel
‘‘threatened or had to do anything that they didn’t want to
do.’’ However, she later testified that she did not question
employees about alleged threats until after Divine’s suspen-
sion (when she told them that they had nothing to worry
about and assured them that Divine’s suspension was not be-
cause of his union activity, but was instead ‘‘for threatening
employees).’’ Instead, she asserted that in the afternoon of
April 2, 1992, she was not inquiring about any ‘‘threats,’’
but was concerned that a few employees, Lisa Scribner, Judy
Williams, and Nicole Chalifoux, were upset about being har-
assed at their counters with constant talk about the Union.
Fitzpatrick’s testimony continued to be contradictory, in-
consistent, and confusing during cross-examination after her
reference was directed to her prior statements. She testified
that Scribner had told her that she was being bothered about
signing a union card and had identified White as having done
so to Wilcox, but not to Fitzpatrick. Fitzpatrick then could
not recall if Scribner or Wilcox had actually used the word
‘‘threat’’ when they individually reported this to her. She
subsequently stated that Wilcox ‘‘could have. I don’t remem-
ber exactly.’’ After testifying that neither Scribner nor
Wilcox had said that White had threatened Scribner,
Fitzpatrick said that the only employees who had told her
that they were threatened if they didn’t sign an authorization
card were John Connelly and Jerry Pelletier.
Confronted with her April 3, 1992 statement, Fitzpatrick
testified that Scribner did tell her that she had been threat-
ened but did not name any employee who had done so, and
Fitzpatrick had not asked her for any names. While
Fitzpatrick identified Wilcox as having told her that White
was the employee bothering Scribner about the Union,
Fitzpatrick, in her affidavit, had stated that Scribner and
Chalifoux had disclosed White’s name as the employee both-
ering them about the Union, also contrary to both Scribner’s
and Chalifoux’s testimony here. Perhaps in an attempt to ex-
plain these contradictions and inconsistencies regarding
White’s name, although unsuccessfully, Fitzpatrick stated
that Wilcox had also told her that Scribner and ‘‘the others
that were working with Maxine . . . didn’t want to state her
name because they had to work side-by-side with her.’’
However, neither Fitzpatrick’s April 3, 1992 statement nor
her Board affidavit mentions Wilcox in regard to this.
When questioned as to which employee had informed
Fitzpatrick that White was bothering them about the Union,
Fitzpatrick now identified Judy Williams as having done so.
But Fitzpatrick had not mentioned Williams in her affidavit,
and in her April 3, 1992 statement Fitzpatrick had stated that
Williams had not mentioned any names. When Fitzpatrick
was reminded about these inconsistencies she then testified
that Williams had mentioned White’s name on a date other
than April 2, 1992, which she cold not remember, although
her April 3, 1992 statement would appear to contradict this.
Fitzpatrick then testified that either Scribner, Chalifoux, or
Williams had identified White as bothering them about the
Union on April 2, 1992, but could not say which one, al-
though it would appear from the record evidence that it was
Williams who had done so and that Williams also informed
Fitzpatrick the morning of April 2, 1992, that employees
were attending a union meeting that morning.
Regarding this, Williams testified that she had in fact gone
to Fitzpatrick to complain about people harassing her about
the Union. However, her testimony about whether she had
also mentioned anything about a union meeting at 10 a.m.
that morning was somewhat contradictory.3 At first she testi-
fied that she never mentioned the meeting to Fitzpatrick.
After being read Fitzpatrick’s April 3, 1992 statement of
what William’s had told her, Williams then admitted telling
Fitzpatrick that she was being harassed by people attending
a union meeting but did not mention the time of the meeting.
Finally, Williams admitted making the entire statement to
Fitzpatrick, ‘‘that she was being harassed by some of the
people who were going to a union meeting at 10 a.m.’’
Finally, Fitzpatrick testified that Scribner did tell Wilcox
on April 2, 1992, that she ‘‘had felt threatened as far as the
Union is concerned . . . and that’s why that whole thing
took place.’’ Fitzpatrick added that Judy Williams and ‘‘a
couple of other employees’’ had informed her about threats
of layoff made to them on the morning of April 2, 1992, but
that no names were mentioned.
On the afternoon of April 2, 1992, Fitzpatrick left to go
to the Respondent’s facility in Groton, Connecticut, Divine
testified that about 2:30 p.m. that day, he received a tele-
phone call at home from CSR Chris Vachon who informed
him that Fitzpatrick ‘‘was questioning employees upstairs
about the Union and who was involved.’’ According to the
testimony of both Divine and White, when they arrived at
work in the late afternoon of that day, and during a brief
conversation Divine informed White that Fitzpatrick knew
about the union meeting and advised her not to ‘‘even talk
about the Union or do anything,’’ while White added that
Divine also told her that someone had told Fitzpatrick that
White was responsible for bringing in the Union. A short
while later CSR Kay Ouellette told White the same thing and
advised her to watch out for herself.4
Divine testified that at about 5 p.m. that evening, he re-
ceived a customer complaint against busdriver Jerry Pelletier
who had allegedly failed to wait to pick up a customer/pas-
senger. Divine hailed Pelletier’s bus and told him that this
had happened before and not to leave customers just standing
and waiting. Pelletier asked Divine about the union meeting
and Divine said that he would tell him what had happened
at the meeting during their breaktime, since he could not
speak to him at that time because it was ‘‘against the rules.’’
However, Pelletier gave a different account of what had
transpired between him and Divine on April 2, 1992.
Pelletier testified that when he came to work that day, every-
one was talking about the union authorization cards, ‘‘green
cards,’’ and whether or not to sign them. Later that evening
677HERTZ CORP.
Divine approached Pelletier in his bus and gave him a card
and asked Pelletier to ‘‘please’’ sign it and that this was im-
portant and in his best interests to do so. Pelletier responded
that he had to think about this.
Pelletier stated that on prior occasions Divine had told him
that because of what was occurring, managers leaving and
different other issues, ‘‘that in order to secure my job or our
jobs there, that we needed a union there, protect your
rights.’’ Pelletier continued that Divine had indicated that he
was privy to inside information that some people would be
laid off or have their hours cutback and having a union
would secure his position. According to Pelletier Divine also
said that the Respondent was unhappy with his work per-
formance and ‘‘this would help more or less guarantee that
I had a position with the company.’’ Pelletier then testified:
But I felt I didn’t have a position either way and
that’s why I became very upset with him over the
whole situation because I felt either way I didn’t have
a job.
Because he always made me feel inadequate about
my position, about my work. He was constantly com-
plaining to me about management said this to him or
management said that to him. So I felt more or less
that—he was indicating to me that the only way for me
to keep my job was to sign that green card. . . . He
said if I did not go along with the majority, that I
would be out of a job. I had no job.
Pelletier added that Divine also told him on many occa-
sions that if he didn’t sign a union authorization card he
would not have a job because Divine ‘‘had the majority vote
of everyone there and . . . if it came to a majority vote and
I didn’t vote yes, that I would lose my job; I’d be out the
door.’’ However, Pelletier testified that Divine had not made
the above statements to him on April 2, 1992, but ‘‘just said
he wanted the card back signed and the importance of sign-
ing the card. . . . He indicated to me that in order for me
to keep my job it was in my best interest to sign that card.’’
Pelletier stated that he ‘‘felt again, like on many occasions
that I was being coerced into making a decision I did not
want to make.’’ Later that evening Divine again asked
Pelletier to sign the card but Pelletier said he needed more
time to consider the request.
According to Pelletier, Divine ‘‘always bitched, pissed and
moaned and groaned’’ about things Pelletier had done, and
not only to Pelletier directly but also to other employees as
well. Pelletier stated that, therefore, he felt threatened by Di-
vine since Divine was using his poor work performance as
‘‘leverage’’ to get him to sign a union card. Pelletier ex-
plained that he had not complained about Divine’s behavior
to management before because he believed that management
would support Divine instead of him, but after he suffered
damage to his automobile, flat tires, and key scratches, which
he appears to have attributed to Divine and the Union, and
with Divine pressuring him to sign a union card on April 2,
1992, he overcame his fear and decided to speak to
Fitzpatrick about this. Pelletier therefore asked Senior Station
Manager David Corris to arrange a meeting between
Fitzpatrick and himself because he ‘‘didn’t trust anybody at
that point.’’ Corris advised Pelletier that Fitzpatrick was
away but would return later that evening. Pelletier did not
advise Corris that he wanted to speak to Fitzpatrick about
Divine.
Pelletier also testified, however, that in the past, when
John Connelly had been a station manager, he had spoken
to Connelly on several occasions complaining about Divine’s
complaints about Pelletier’s job performance. Pelletier related
that Connelly said that he should not feel alone since Divine
complained constantly about everyone, whereupon Pelletier
felt more secure and that Divine’s threats were hollow.
Pelletier added that this feeling of security was shattered
when Divine began to talk to him about the Union and
Pelletier’s need to sign an authorization card to protect his
job whereupon he lost trust in everybody including Connelly.
Divine testified that at about 8:30 p.m. on April 2, 1992,
as he was taking his break period, busdriver John Connelly
asked him how things had gone at the union meeting. Divine
told Connelly that he could have attended the meeting and
that he couldn’t talk to Connelly at the time since Connelly
was on worktime and this was against the rules. Divine gave
Connelly a section of the Union’s pamphlet on organizing
‘‘do’s and don’ts,’’ asked him to read it, and then left the
scene.
Connelly testified that Divine had boarded his bus twice
on April 2, 1992, once to give Connelly a union pamphlet,
and again to retrieve the pamphlet. Divine started to talk
about the Union, but Connelly said he wasn’t interested in
hearing this. According to Connelly, Divine then told him
that if he didn’t sign a union card Divine would tell manage-
ment about things that had occurred when Connelly was a
station manager that could lose him his job, but did not
specify what these were. Connelly reported this threat to
Corris and Greg Lindberg another station manager and said
that Fitzpatrick should be apprised of this.
Fitzpatrick testified that when she arrived back from Grot-
on, Corris informed her that Connelly and Pelletier ‘‘were
very shaken up’’ and wanted to talk to her because they had
been threatened and ‘‘without Sam Divine seeing them.’’
Fitzpatrick spoke to Connelly with Corris present and
Connelly related what had occurred that evening and how he
felt threatened by Divine. Fitzpatrick asked him to put in
writing the events he related telling him, ‘‘If you are that
sincere about being threatened as far as your livelihood is
concerned, then I want you to . . . produce something in
writing to me.’’ On April 5, 1992, Connelly gave a written
statement to Fitzpatrick of what had occurred.
Fitzpatrick stated that she also spoke to Pelletier who told
her that Divine had gotten on his bus and insisted that
Pelletier sign a union authorization card and if he didn’t sign
the card and the Union got in, there was a good possibility
that he would not have a job. Pelletier said that ‘‘it was one
of many times that he was really upset with [Divine] that
night and he felt he didn’t have to be threatened every day
when he came to work.’’ Fitzpatrick then told Pelletier that
‘‘if you’re that sincere about someone threatening you, then
you’ll have to give it in writing to me.’’ Pelletier gave
Fitzpatrick such a statement on April 4, 1992.
On April 2, 1992, at about 9:30 p.m., White was instructed
by Station Manager Greg Lindberg to see Fitzpatrick which
she did. White testified that Fitzpatrick told her that four
people had accused White of ‘‘threatening and harassing
them to join a union.’’ White denied doing this and
Fitzpatrick offered to bring the four people in and White
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘just put my hands up and shrugged and like, you know,
whatever.’’ However, Fitzpatrick did not identify the ‘‘four
people’’ nor bring them in to confront White. Fitzpatrick
asked White why anyone would want to pay to work there,
and White said she didn’t know. Fitzpatrick said that UTC
had a union and they were laying employees off. Fitzpatrick
told White that her job would be easier if there was a union
since she would only have to follow the contract, and if there
was a union White would not be allowed to have coffee or
a cigarette.
Fitzpatrick also told White not to talk to employees who
don’t want to hear about the Union at their counters while
they are working. Fitzpatrick said to White that ‘‘carrying on
union activities while on the clock or on Hertz property . . .
that distributing or talking about the union on company time
in the premises was against the rules.’’ Fitzpatrick acknowl-
edged to White that ‘‘she did know we had had a meeting
at Friendly’s that day.’’ According to White, Fitzpatrick had
started to say during this conversation that, ‘‘I could susl,’’
but White interrupted her in midsentence and told Fitzpatrick
that she was tired and didn’t care anymore. White testified
that Fitzpatrick had started to state that she could suspend
her when White interrupted her. White received no discipline
at all as a result of her conversation with Fitzpatrick.
Fitzpatrick did not deny in her testimony that she had begun
to tell White she could be suspended. Fitzpatrick admitted
that she told White that she knew about the union meeting.
Later that evening, at about 10:45 p.m., Fitzpatrick called
Divine to her office with Corris present. Fitzpatrick told Di-
vine that she was relieving him of his duties because four
people had called her during that day to accuse him of
threatening them with loss of their jobs if they refused to
sign union cards. Divine said, ‘‘[T]hat’s not true. I didn’t
threaten anybody to sign union cards to join the union.’’ Di-
vine testified that he asked Fitzpatrick to produce his accus-
ers but she wouldn’t do that. Divine mentioned several em-
ployees first names including Judy Williams and Fitzpatrick
only responded that Williams ‘‘speaks very highly of you.’’
Fitzpatrick discussed unions at UTC and the Respondent’s
Boston facility and that the union did nothing for the people
in Boston, that the employees in Hartford have better bene-
fits and if a union came in some employees could lose their
jobs if it was a closed shop and they didn’t want to join a
union. Fitzpatrick asked him why he would want to pay for
the privilege of working there if it meant having a union, and
that the employees could lose all their benefits.
Divine continued that Fitzpatrick asked him to identify the
Union and the employees involved with it, and while Divine
mentioned no employees’ names he did disclose the UAW
as the Union. Fitzpatrick asked Divine why he wanted to get
involved with the Union and he explained that the garage-
men were complaining about Jeff Wilcox and how he treated
them and the employees wanted to make sure that things
were done right. Fitzpatrick finally asked him if he had any-
thing more to say and after answering, ‘‘No,’’ he offered that
if he had ‘‘hurt anybody or hurt the company, I apologize.’’
Fitzpatrick then instructed Divine to leave without punching
out, that she would take care of his timecard and to call her
the next day to see if he still had a job since she now had
to report the situation to ‘‘Park Ridge.’’
Fitzpatrick testified that she first asked Divine what was
going on since she had been told by a ‘‘couple’’ of employ-
ees that he had threatened them if they didn’t sign union
cards. Divine denied this and explained ‘‘how the whole
thing got started.’’ Divine then offered that ‘‘some of the
people running to you now are the ones who came to me for
help and now they’ve got cold feet and they’re backing out.
I guess I got a little hot under the collar. I probably
shouldn’t have, but I did get hot under the collar.’’
Fitzpatrick told Divine that she had no problem with his
union activity if it ‘‘doesn’t happen during working hours
and while you’re working on the bus and you can’t threaten
people.’’ Divine expressed employees’ concerns about losing
health benefits and the layoffs of managers as the reasons for
their interest in union representation. Fitzpatrick denied that
she questioned Divine about the Union and as to the employ-
ees involved in the organizing effort or that they had dis-
cussed a ‘‘closed shop.’’ Fitzpatrick did admit, however, that
she told Divine that she was aware of the union meeting. Di-
vine was instructed to leave for the day and to call her be-
fore he came into work the next day since Fitzpatrick wanted
to speak to personnel ‘‘to see where we’d go from there be-
cause it was serious.’’
Corris testified that Fitzpatrick advised Divine that ‘‘a
couple of employees ‘‘had accused Divine of threatening
them with the Union. Corris related that Divine did not deny
this and while Divine did not admit to making such threats,
he did say that he got ‘‘hot under the collar, that he wasn’t
the one who brought the Union, and he only wanted to help
them make sure they were doing it correctly.’’ Corris added
that Fitzpatrick did not explain to Divine what the supposed
threats were. Corris’ recollection of what was said during
this conversation appeared limited.
I note that nowhere in her direct testimony did Fitzpatrick
mention the names of Jerry Pelletier or John Connelly or of
their allegations against Divine. However, on cross-examina-
tion, Fitzpatrick claimed she did identify Pelletier and
Connelly to Divine. Moreover, Fitzpatrick also testified that
Pelletier and Connelly did not want Divine to know that they
had spoken to her. Corris also failed to mention the names
of Pelletier and Connelly when he was testifying as to what
had been said between Fitzpatrick and Divine on April 2,
1992.
On April 3, 1992, Divine was called to Fitzpatrick’s office
and with Corris present, Fitzpatrick advised Divine that while
the Park Ridge management had recommended she fire Di-
vine, Fitzpatrick told them that he was a good worker and
that he should be suspended only. Fitzpatrick gave Divine a
letter of suspension dated April 3, 1992, suspending him for
3 days. Divine testified that after signing ‘‘the papers,’’
Fitzpatrick ‘‘said as a friend’’ that he ‘‘shouldn’t get in-
volved with other people’s problems at our location.’’ The
suspension letter stated that Divine had violated two ‘‘related
work rules’’ and reads in pertinent part:
Conducting non-Hertz business involving any and all
Hertz employees while you or said employees are on
working time and/or in working areas will not be toler-
ated.
Action on the part of any individual or group of em-
ployees disrupting harmony, intimidating fellow em-
ployees, or to interfere with the normal and efficient
operation will not be tolerated.
679HERTZ CORP.
5 The two rules in the Respondent’s employee rules and regula-
tions on which Divine’s suspension was based state:
6. Soliciting or distributing and collecting any papers, mate-
rials or contributions on working time or in work area.
. . . .
24. Action on the part of any individual or group of employ-
ees to disrupt harmony, intimidate fellow employees or to inter-
fere with normal and efficient operations.
Further actions of this type will not be tolerated, and
upon review, will result in serious and immediate dis-
ciplinary action up to and including termination.5
2. What occurred thereafter
Roberto Diaz testified that a few days after the meeting
with union representatives at Friendly’s Restaurant on April
2, 1992, Fitzpatrick, while in her car, approached Diaz at a
garage gas pump and said, ‘‘Roberto, you get ready for a
long trip.’’ Diaz responded, ‘‘not me, I don’t know what
you’re talking about.’’ After Fitzpatrick and leadman Jimmy
Hartford drove around the garage lot, Fitzpatrick then said to
Diaz, ‘‘Roberto, you’re the treasurer of the Union.’’ Diaz
told her that he was ‘‘no treasurer for nobody,’’ and didn’t
know what she was talking about. Diaz added that
Fitzpatrick just smiled and then drove away. Hartford then
said to Diaz, ‘‘Buddy, if you think you got my vote, you’re
wrong.’’ Diaz told Hartford that he did not know what he
was talking about.
While Fitzpatrick admitted stating to Diaz, ‘‘Roberto,
you’re going to be the treasurer, right?’’ and then leaving
without saying anything else to him, she testified that this
occurred later on in the year and was part of joking around
with the garagemen wherein she assigned various official po-
sitions to them such as president and secretary.
After Divine returned to work on April 8, 1992, on con-
clusion of his suspension period, Fitzpatrick told the service
managers to make sure that Divine and other employees do
not threaten employees and to have employees report such
threats to their managers so that the employees don’t feel
threatened. Moreover, as testified to by both Maxine White
and Divine, after April 8, 1992, whenever Divine and White
took their breaks together as they had done at times pre-
viously, Station Managers Jeff Wilcox or Gary Lindberg
would take their lunchbreaks at the same time and for the
full period that Divine and White were together, which
Wilcox and Lindberg had not done before. Neither Wilcox
nor Lindberg testified at the trial.
Divine testified that on May 11, 1992, while attending a
meeting between the employees and the Union held at the
Holiday Inn in Windsor Locks, Connecticut, he observed Jeff
Wilcox in a silver Ford Taurus circling the parking lot and
stopping behind his van and White’s car. Diaz testified that
on that same day and at the building where the union meet-
ing was taking place he observed Wilcox in a gray Taurus
taking down license plate numbers of those employees at-
tending this meeting.
White testified that on April 17, 1992, Fitzpatrick ap-
proached her at check-in and said to her that Divine was
concerned about health benefits and if the Union came in the
Respondent would not have to give him health coverage.
White replied that she understood his concerns because of his
wife’s serious health problems and that White was attending
union meetings to be informed so she could make intelligent
decisions affecting her future and livelihood.
3. The April 8, 1992 meeting
By posted notice to its employees the Respondent held a
meeting with employees on April 8, 1992. Scott Sider, re-
gional vice president, testified that in March 1992 Fitzpatrick
informed him that there had been talk among employees
about the need for union representation because of their con-
cerns about their jobs in view of the Respondent’s layoffs of
some managers, and in order to address these employee con-
cerns and since he had not as yet met with the Hartford em-
ployees, Sider decided on the April 8, 1992 meeting. This
meeting was unprecedented in several aspects. No employee
meeting had been held at the Respondent’s Bradley Field fa-
cility by any corporate vice president in recent memory. The
Respondent provided a buffet luncheon for employees at this
meeting which was also unprecedented. Moreover,
Fitzpatrick told employees that the purpose of this meeting
was to hear the employees, ‘‘concerns, ideas . . . it was an
open-ended meeting.’’ The meeting was open for employee
questions to management which had also never been done
before on such a scale. Fitzpatrick spoke about companies
like ‘‘UTC’’ and ‘‘Caterpillar’’ having unions, and that de-
spite the unions these companies were still having layoffs,
and explained that although the Respondent was eliminating
some managerial positions, returning them to nonmanage-
ment positions, there would be no employee layoffs or
firings at the Respondent’s Bradley Field facility.
Sider introduced himself and opened the meeting to em-
ployee questions regarding their concerns or complaints and
said that he would try to answer the questions if he could
then and there and, if not, then he would get back to them.
Employees asked questions about seniority, pay differentials,
the employee health plan, and the ‘‘fleet’’ size at Bradley
Field. Divine testified that he identified himself as the ‘‘the
fellow that got suspended ’cause of my activity for the
union’’ and stated that he was concerned that new managers
were not being trained as to how to treat employees better.
Divine told Sider that the concerns being expressed by the
employees at this meeting were the reasons they felt they
needed to contact a union. White testified that Sider re-
sponded that part of the reason for this meeting was to find
out what the employees’ concerns and problems were and to
see if they could be ‘‘ironed out and worked out.’’ After the
meeting the employees ‘‘ate the buffet.’’ Both White and Di-
vine testified that Sider had indicated that he could make no
promises or guarantees regarding the employees’ concerns
expressed at this meeting.
4. The April 30, 1992 meeting
Announced by posted notice on April 14, 1992, the Re-
spondent held another meeting with employees on April 30,
1992. The notice indicated that this meeting would ‘‘be simi-
lar to that held on April 8th,’’ and that ‘‘immediately follow-
ing the meeting Mr. Sider will be available to meet on an
individual basis with those employees who would like to fur-
ther discuss any issues/concerns.’’ Sider and Regional Em-
ployee Relations Manager David Almeda conducted this
meeting. Sider told the employees that management wanted
to hear their questions, concerns, and ideas and go over
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Divine’s testimony as to this conversation was unrebutted and
therefore supports his testimony that he had been told by Fitzpatrick
that there were four accusers who were not identified to him.
them. Employees asked about the sick call-in policy and sup-
plying doctors’ notes for sick leave, how vacation leave is
set as to who goes when, and how personal days were al-
lowed. Sider related that he gave no immediate answers to
these concerns although he may have answered other ques-
tions and told the employees that he would consider their
concerns and get back to them.
5. The May 15, 1992 meeting
By posted notice on May 12, 1992, the Respondent an-
nounced another meeting to be held on May 15, 1992,
wherein the ‘‘[c]oncerns presented by employees at the last
such meeting will be addressed.’’ This notice also indicated
that Sider and Almeda would be meeting with employees on
an individual basis afterwards to ‘‘further discuss any issues
or concerns.’’ At the meeting Sider and Almeda distributed
a memorandum which set forth ‘‘proposals initiated by em-
ployee concerns voiced at prior meeting.’’ This memorandum
clarified vacation scheduling, personal day requests, sick day
policies, and announced that ‘‘Smoking/Non-smoking breaks;
Staffing; Others as needed,’’ would be topics for further dis-
cussion later on.
From the end of April to the middle of May 1, 1992,
Fitzpatrick was out and Sider visited the Bradley Field facil-
ity frequently to fill in for her. During this period he met
with employees individually to discuss their concerns. In Au-
gust 1992 Sider held approximately 38 individual meetings
with employees, these occurring after the Union had filed a
representation petiton with the Board. Divine testified to one
of these meetings involving himself wherein Sider and
Almeda asked Divine what his concerns were. Divine raised
the issue of his suspension as being unfair and a denial of
his ‘‘rights.’’ Divine asked Sider if he had investigated this
and had determined who his accusers were. Sider replied that
he had been told that four people had accused Divine of
threatening them to join the Union and harassing them. Di-
vine denied this to Sider as untrue and Sider told him that
if only two people had accused him he would not have been
suspended, but since four people did, the Respondent had to
take action against him. Divine just answered, ‘‘[O]K.’’
Sider said, ‘‘[T]hat’s water under the dam’’ and the discus-
sion turned to other matters.6
6. The discharge of Sam Divine
The hearing in Cases 34–CA–5684 and 34–RC–1108
closed on March 31, 1993. Divine had assisted counsel for
the General Counsel O’Connor throughout the trial and sat
alongside him at the counsel table. During the trial Divine
heard the testimony of the other witnesses and saw
Fitzpatrick’s April 3, 1992 memorandum in evidence, in
which she stated, ‘‘On 4/2/92, Judy Williams advised me
that she was being harassed by some of the people who were
going to a union meeting at 10 a.m.’’ Williams had not testi-
fied at the hearing in the above cases.
Divine testified that on March 31, 1993, when he reported
to work after the hearing had closed, he met Judy Williams
who asked him how the case went and was it over. Divine
answered yes it was over and then Williams asked him why
he was being unfriendly toward her. Divine replied that since
his suspension Williams had maintained that she had never
talked to Fitzpatrick about the Union, but that Fitzpatrick had
testified at the trial that Williams had told her that she was
fearful of people going to the union meeting. Williams be-
came angry and said, ‘‘I never went to Erlene, Erlene has
no fuckin’ right to use my name at all.’’ Divine related that
later that evening employees Ann Marie Myers and Maxine
White also advised him that Williams was upset about
Fitzpatrick’s testimony concerning her at the trial. Later,
Williams herself again told Divine that she hadn’t told
Fitzpatrick anything and wasn’t involved in this.
Williams’ testimony regarding her conversation with Di-
vine was different. Williams testified that after she had asked
Divine how things were going he had said, ‘‘I can’t believe
that you did this to me.’’ Divine told Williams that
Fitzpatrick had testified at the hearing that Williams had met
with her at 10 a.m. and identified employees who were at-
tending a union meeting and had told Fitzpatrick that she felt
that her life was being threatened. Williams responded that
this was ‘‘bullshit,’’ and said that she would have been
asleep at 10 o’clock in the morning and could never have
told this to Fitzpatrick. According to Williams, Divine told
her that the Respondent and Fitzpatrick were just using her,
had created the job of dispatcher for her in order to lower
her seniority status, and would fire her after the case was
over. Divine said that Fitzpatrick would deny everything
Williams had said. Divine also told Williams that the people
she worked with were not going to want to continue working
with her because they wouldn’t trust her as being a ‘‘spy.’’
Williams added that Divine called Sider and Fitzpatrick
‘‘two-faced,’’ and that at the conclusion of the conversation
she was so upset that she left work early and cried while
driving home.
Williams testified that on April 1, 1993, at about 6 p.m.,
she went to Fitzpatrick and told her that she was upset be-
cause people would not want to work with her since
Fitzpatrick had testified at the hearing that Williams had
given her the names of employees who had attended a union
meeting and the place of the meeting. Williams stated that
Fitzpatrick denied doing this and Williams then recounted to
her most of what Divine had said to her on March 31, 1993,
excluding his remark about Sider and Fitzpatrick being
‘‘two-faced.’’ Fitzpatrick then told Williams that her job was
not in jeopardy and that she had nothing to worry about.
Williams was not a supporter of the Union.
However, while Fitzpatrick’s version of her conversation
with Williams on April 1, 1993, was somewhat similar to
Williams’ (what Divine had said about Fitzpatrick’s testi-
mony concerning Williams at the hearing, about losing her
job, and about employees not wanting to work with her be-
cause she ‘‘ratted’’ on them), it did differ in that Fitzpatrick,
after reviewing her affidavit given to a Board agent on April
22, 1993, 2 weeks after Divine was terminated, stated that
Williams did tell her that Divine had called Fitzpatrick and
Sider ‘‘two-faced.’’ Fitzpatrick added that later she called
Sider to apprise him of what had occurred and Sider in-
structed her to monitor the situation and keep him informed.
Divine testified that about 9:30 p.m. on April 1, 1993,
Williams approached him and asked if they were going to
the casino again and if he intended to go to the Kentucky
Derby with her. After Divine responded that if he didn’t
681HERTZ CORP.
7 I note that Divine’s prior 3-day suspension was imposed on April
3, 1992, by Fitzpatrick, while what may be considered as written
‘‘formal complaints’’ were not made by Pelletier and Connelly until
April 4 and 5, 1992, respectively.
have any plans he would go, Williams then said, ‘‘I can’t be-
lieve Erlene mentioned my name in the testimony.’’ Divine
told her that a lot of the employees did not trust her because
they were afraid that she might be reporting to Fitzpatrick
‘‘that they’ve done something wrong.’’ Williams responded
that ‘‘I never tell Erlene anything.’’ Divine stated that he
mentioned to Williams that employees might no longer help
her out by loaning her money or giving her a ride when
needed. Williams’ reply was only that she was going to the
race track on Saturday and Divine wished her ‘‘good luck.’’
Again Williams’ version of her conversation with Divine
on April 1, 1993, differed from his. Williams related that Di-
vine initiated this conversation which she said occurred at
her work station counter at about 9 or 9:30 p.m. Williams
related that Divine told her that he couldn’t believe that the
Respondent had done this to her, that Hertz would not stand
behind her, and to remember that he was her friend. Divine
also said that other people had heard Fitzpatrick’s statement
that Williams had come to her with the names of people and
that they were disappointed in her and wouldn’t want to
work with her. While Williams testified that she then went
upstairs to speak to Fitzpatrick, the record evidence indicates
that she instead had actually spoke to Fitzpatrick earlier that
evening.
Williams testified that she contiuned to work but became
‘‘very upset’’ and ‘‘a little angry’’ and went outside to ‘‘con-
front’’ Divine by his bus. Divine told her that the Respond-
ent was using her for its own selfish reasons, that Fitzpatick
was a ‘‘liar’’ and using Williams ‘‘to save her own ass’’ and
‘‘didn’t give a shit about what happened to me,’’ that no-
body was going to want to work with her any longer, and
that the Respondent was going to fire her. Williams re-
counted that she then told Nicole Chalifoux what Divine had
said to her and Chalifoux said, ‘‘[T]hat she had heard that
before.’’ Williams also related that Maxine White had told
her that she was disappointed in Williams because she had
heard that Fitzpatrick’s testimony included the statement that
Williams had disclosed to Fitzpatrick the names of people
who had gone to the union meeting.
Williams testified that on April 2, 1993, on her day off,
she went to see Fitzpatrick at 10 a.m. and told her that Di-
vine called Fitzpatrick and Sider ‘‘two-faced,’’ and that she
was still upset that people would not want to work with her.
Fitzpatrick told her that employees should not have to come
to work and be upset, and asked Williams if she wanted ‘‘to
file a complaint.’’ Williams responded that she would have
to think about it.
Fitzpatrick testified that Williams had told her in this con-
versation on April 2, 1993, that she had previously been em-
barrassed to state the ‘‘vulgarities’’ that Divine had used in
their conversation on April 1, 1993, but would now do so.
Williams told Fitzpatrick, besides reiterating her being upset
about people not wanting to work with her because of
Fitzpatrick’s disclosure of her name at the hearing, that Di-
vine had said that the Respondent and Fitzpatrick were
‘‘fucked up,’’ that the Respondent and Sider were ‘‘two-
faced,’’ and that ‘‘Dave Corris should be concerned about
coming back to work because his testimony was an embar-
rassment.’’
Fitzpatrick again called Sider to report that Williams was
still upset about Divine’s remarks to her regarding
Fitzpatrick’s testimony naming Williams as a source of infor-
mation regarding employees’ union activities. Sider testified
that he told Fitzpatrick ‘‘to gather the details’’ regarding
Williams’ assertions about Divine. While Fitzpatrick ac-
knowledged that she considered Divine’s actions as ‘‘mis-
conduct,’’ she did not confront Divine about this ‘‘because
I had no formal complaint.’’ Moreover, Fitzpatrick admitted
that there is no requirement in the Respondent’s procedural
manual for the filing of a ‘‘formal complaint’’ before consid-
ering and implementing any discipline.7
Williams testified that on April 5, 1993, she came to work
early having suffered a damaged car battery cable, and met
with Fitzpatrick to complain that her battery cable had been
cut occurring sometime over the weekend and off the Re-
spondent’s premises. She then again complained about
Divine’s prior statements to her and asked to speak to Sider.
Later that afternoon Williams met with Sider and Dave
Almeda, who had come to the Bradley Field facility, in
Fitzpatrick’s office with Fitzpatrick present. Williams told
Sider that because of Fitzpatrick’s statement at the hearing
she was having problems with other employees and was not
going to be able to work with them. Williams reiterated to
Sider what she had previously told Fitzpatrick about what
Divine had said to her, and indicated to him that she was
afraid of losing her job and reiterated that other employees
would not want to work with her.
Concerning this conversation on April 5, 1993, Sider testi-
fied that Williams also mentioned that Maxine White had ex-
pressed disappointment in Williams presumably stemming
from Fitzpatrick’s statement at the hearing, and that
Chalifoux had told Williams that Divine had told her about
Fitzpatrick’s testimony that Williams had named people who
went to the union meeting. Sider related that Williams was
‘‘visibly shaken’’ and he told her that she would have to
make a written statement regarding Divine’s conduct toward
her before the Respondent would proceed any further.
On April 6, 1993, Williams arrived at work early, at 10
a.m., to speak to Fitzpatrick and then wrote out a statement
complaining about Divine while in Fitzpatrick’s office. Wil-
liams stated that Fitzpatrick was ‘‘in and out’’ of the office
while she wrote out her statement. Williams explained that
she decided to give the Respondent a written statement be-
cause Divine had lied to both her and her friends and had
hurt her. She was unable to perform her job and Divine was
harassing her at work and she couldn’t take it anymore. Wil-
liams ‘‘hoped they would fire him.’’ Williams’ statement
was then faxed to the Respondent’s counsel.
Also on April 6, 1993, Sider and Almeda again appeared
at the Bradley Field facility and at about 4:30 that afternoon
called Divine to the upstairs breakroom where they met with
him. Fitzpatrick was also present. Divine testified that Sider
gave him a copy of his prior suspension notice to read and
then told Divine that another employee had come forward to
complain about Divine threatening her. Divine denied threat-
ening anybody. Sider asked Divine if he had spoken to any-
body about the case and Divine replied that he had talked
to Judy Williams, and told her among other things that
Fitzpatrick had said in her testimony at the hearing that Wil-
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
liams had told her ‘‘she was fearful of people attending the
union meeting.’’ Sider admonished Divine that he was still
under oath and had no right to discuss that with Williams,
but Divine said that he was no longer under oath since the
case had ended on March 31, 1993. Divine admitted to Sider
that he had also mentioned Fitzpatrick’s testimony concern-
ing what Williams had said to her, to Maxine White as well.
Divine disclosed to Sider that during Fitzpatrick’s testimony
he learned that one of her written statements said that Wil-
liams had gone to her about being fearful of people going
to the union meeting and Divine read the first line of that
statement which had been placed in evidence at the hearing.
However, Sider testified that what Divine told him was
that ‘‘he was disappointed in Judy Williams, that at the re-
cent hearing . . . he had read a statement by Erlene
[Fitzpatrick] that was given to her by Judy, the information
was given to her by Judy, that said that Judy had given
Erlene names of people who went to a 10:00 o’clock union
meeting at Friendly’s and that she had been harassed.’’ Sider
stated that he now left the room to determine what document
Divine had referred to and to speak to the Respondent’s
counsel. Sider also spoke to Williams to ascertain whether
Divine had referred to Fitzpatrick’s ‘‘testimony’’ or to a
written statement, and Williams said it was her testimony.
When he returned, Sider handed Divine a blank piece of
paper and asked him to write what he had read at the hear-
ing. Divine told Sider he could not do this verbatim but did
write down what he remembered seeing. After he handed
back the paper to Sider, Sider, Almeda, and Fitzpatrick left
the room.
After a while, Sider returned and asked Divine if he had
threatened Williams by telling her that if the Union came in
she would lose her job, and Divine said that this was untrue.
Divine told Sider that he was very upset with Williams be-
cause since his suspension she had expressed support for him
and hoped that Fitzpatrick got everything she deserved, and
that Williams had said that she never told Fitzpatrick that she
was afraid of people attending union meetings. According to
Divine, after he told Sider that he was upset because Wil-
liams lied to him and Sider responded sarcastically, ‘‘what’s
the difference,’’ Divine said, ‘‘well it sounds like—do you
want me to resign?’’ When Sider responded that it was up
to Divine, Divine refused stating, ‘‘no sir, I don’t because I
don’t want to lose my health benefits.’’
Sider testified that he asked Divine if he had told Williams
that she would lose her job on the decision rendered in this
case, that people would refuse to work with her and she
would lose her job, that she was a ‘‘scape-goat’’ for the
company, that she got ‘‘fucked’’ by the company, and that
he had called Sider and Fitzpatrick ‘‘two-faced,’’ to all of
which Divine answered ‘‘no.’’ Divine also responded that he
didn’t use that type of language around female employees re-
ferring to the word ‘‘fucked.’’
Sider stated that he also spoke to Nicole Chalifoux be-
cause he remembered that Williams had mentioned Chalifoux
when she spoke to him. Sider stated that Chalifoux told him
that Divine had said to her that Fitzpatrick had testified at
the hearing that Williams told Fitzpatrick the names of em-
ployees who went to union meetings. However, on her direct
testimony Chalifoux at first testified that Divine had told her
‘‘what Erlene had said, but I don’t know if it was about Judy
. . . that Erlene had testified the names that were at the
union meeting.’’ After the Respondent’s counsel mentioned
Williams in the next question, decidedly leading in nature,
Chalifoux now indicated that it was Williams who had given
Fitzpatrick the names. Later on in her testimony she could
not remember if Divine mentioned Williams’ name at all in
their conversation. Chalifoux appeared somewhat confused
about her conversation with Divine regarding Fitzpatrick’s
testimony at the hearing. Chalifoux also testified that she told
Sider that Divine’’ was talking about what Erlene had testi-
fied to,’’ and that she thought the employees were not sup-
posed to talk about the case until it was over. She could not
remember if she told Williams that Divine had said that Wil-
liams gave Fitzpatrick the names of people who had gone to
a union meeting. Chalifoux also denied that Fitzpatrick had
ever approached her to inquire about what Divine had said
to Chalifoux.
When Sider finally returned to the room in which Divine
waited, he told Divine that he wa suspended indefinitely until
the Respondent’s investigation was completed, and that
Fitzpatrick would call him to apprise him of the results. On
April 7, 1993, Fitzpatrick called Divine and told him to re-
port to her at 12:30 p.m. which he did. Fitzpatrick in the
presence of Dave Corris advised Divine that he was fired and
wished him ‘‘good luck.’’ Nothing further was said and Di-
vine subsequently received a ‘‘pink slip,’’ which stated that
he was terminated for ‘‘repeated willful misconduct.’’
As to the decision to terminate Divine and the reasons as-
serted by the Respondent for such decision, in an affidavit
dated April 22, 1993, given by Fitzpatrick to a Board agent
in Case 34–CA–6104, Fitzpatrick claimed that it was she and
Dave Almeda who decided to terminate Divine. Fitzpatrick
gave various factors for the decision including that Divine
said that she and Sider were ‘‘two-faced,’’ that Divine had
spread rumors about Corris’ testimony, that Divine had told
employees that Williams was a ‘‘rat’’ and a ‘‘company spy,’’
and that Williams was the third employee to file a written
complaint against Divine in the past year (the first two being
Pelletier and Connolly, which led to Divine’s suspension).
At the reopened trial, Fitzpatrick testified that she had
used a poor choice of words in her prior affidavit, since she
and Almeda had only recommended Divine’s discharge but
that Sider made the actual decision to fire him. Sider testified
that he made the decision to terminate Divine, but that
Fitzpatrick’s and Almeda’s recommendations were a factor in
this decision. Sider admitted that the only ‘‘further investiga-
tion’’ conducted by the Respondent after suspending Divine
indefinitely on April 6, 1993, was ‘‘to think about it and
‘‘talk to counsel.’’ He gave as other factors for his decision
to terminate Divine as:
that Sam had lied to Judy Williams and other employ-
ees of Hertz, and through his lies tried to build mistrust
between Judy Williams and the Hertz Corporation and
also fellow employees against Judy Williams; that
through his lies caused intentional emotional assault on
Judy similar to if he had hit [her] or something to that
degree. Sam Divine through his lies caused emotional
distress on Judy Williams to the point that she had a
tough time doing her job, her daily job and that she felt
that she was going to be terminated from the Hertz
Corporation. Sam also lied to myself during the inves-
tigation.
683HERTZ CORP.
In sum, Sam Divine intentionally intimidated Judy
Williams. He disrupted the harmony of the work force,
he disrupted the work place. He violated work rule
number 24, which in itself is termination, it’s a ter-
minable offense. This is the second such time that he
violated this rule, he was suspended prior for it. I con-
cluded that I had to terminate Sam Divine.
While Sider denied that Divine’s ‘‘pro-union’’ position in-
fluenced his decision to terminate Divine, Sider did admit
that he was aware of this when he met with Divine on April
6, 1993. Moreover, among the purported ‘‘lies’’ made by Di-
vine to Williams was his statement to her that Fitzpatrick had
testified at the hearing that Williams had named the persons
who were attending the union meeting on April 2, 1992, at
10 a.m. and Divine’s harassment of her. However, on cross-
examination Sider acknowledged that Divine could have
been mistaken regarding Fitzpatrick’s testimony and what he
had read in her statement, rather than lying about it to Wil-
liams, although he also testified on redirect that since
Fitzpatrick’s statement said nothing about Williams’ naming
names, that Divine could not be mistaken but had instead
lied to Williams about this.
B. Analysis and Conclusions
1. The 8(a)(1) violations—Case 34–CA–5684
Section 8(a)(1) of the Act provides that it shall be an un-
fair labor practice for an employer to interfere with, restrain,
or coerce employees in the exercise of their statutory right
to engage in, or refrain from engaging in, concerted activity.
This provision is modified, however, by Section 8(c) of the
Act, which defines and implements the First Amendment
right of free speech in the context of labor relations. NLRB
v. Four Winds Industries, 530 (1969). Section 8(c) permits
employers to express ‘‘any views, arguments or opinions’’
concerning union representation without running afoul of
Section 8(a)(1) of the Act if the expression ‘‘contains no
threat of reprisal or force or promise of benefit.’’ NLRB v.
Marine World USA, 611 F.2d 1274 (9th Cir. 1980); NLRB
v. Raytheon Co., 445 F.2d 272 (9th Cir. 1971). The employer
is also free to express opinions or make predictions, reason-
ably based in fact, about the possible effects of unionization
on its company. NLRB v. Gissel Packing Co., 395 U.S. 575
at 618 (1969). In determining whether questioned statements
are permissible under Section 8(c), the statements must be
considered in the context in which they were made and in
view of the totality of the employer’s conduct. NLRB v. Ma-
rine World USA, supra; NLRB v. Lenkurt Electric Co., 438
F.2d 1102 (9th Cir. 1971). Also recognized must be the eco-
nomically dependent relationship of the employees to the
employer and the necessary tendency of the former, because
of that relationship, to pick up intended implications of the
latter that might be more readily dismissed by a more disin-
terested ear. NLRB v. Gissel Packing Co., supra at 617;
NLRB v. Marine World USA, supra.
a. Interrogation
The complaint in Case 34–CA–5684 alleges that the Re-
spondent violated Section 8(a)(1) of the Act when its super-
visor, Erlene Fitzpatrick, on April 2, 1992, interrogated em-
ployees about their union and protected concerted activities.
The Respondent denies this allegation.
In Rossmore House, 269 NLRB 1176 (1984), affd. 760
F.2d 1006 (9th Cir. 1985), the Board reiterated the basic test
for evaluating whether interrogations violate Section 8(a)(1)
of the Act established in Blue Flash Express, 109 NLRB 591
(1954): whether under all the circumstances the interrogation
reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act. The Board then stated in Rossmore
House, supra at 1177:
Our view is consonant with that expressed by the
Seventh Circuit, Court of Appeals in Midwest Stock Ex-
change v. NLRB, [635 F.2d 1255, 1267 (7th Cir.
1980)]:
It is well established that interrogation of employ-
ees is not illegal per se. Section 8(a)(1) of the Act
prohibits employers only from activity which in
some manner tends to restrain, coerce or interfere
with employee rights. To fall within the ambit of
Section 8(a)(1), either the words themselves or the
context in which they are used must suggest an ele-
ment of coercion or interference.
Thus, the surrounding circumstances of the interrogation de-
termines its unlawfulness and the Board will consider the
time, place, personnel involved, and the known position of
the employer, in making such a determination. Teamsters
Local 633 (Bulk Haulers) v. NLRB, 509 F.2d 490 (D.C. Cir.
1974).
According to the evidence herein, soon after learning that
a union meeting had taken place on that morning of April
2, 1992, Fitzpatrick had employee Lisa Scribner summoned
to the upstairs breakroom where she asked Scribner how she
felt about ‘‘what was going on.’’ Scribner understood this to
be and it was in reference to the union activity occurring at
the Bradley Field facility. Scribner told Fitzpatrick that she
was tired of hearing about the Union and that she was
against the Union and the reason why. Fitzpatrick then said
that she couldn’t understand why employees who worked for
her would want to pay to come to work, obviously a ref-
erence to union dues payments, and that she would be talk-
ing to other employees about how they felt concerning what
was going on.
Fitzpatrick also had employee Ann Marie Meyers called to
the upstairs breakroom whereupon Fitzpatrick asked her if
she had heard anything about a union and as to why she felt
that the employees wanted a union. Meyers also testified that
Fitzpatrick asked her if she had signed ‘‘any kind of card or
something.’’ Fitzpatrick then told Meyers that other major
companies in the area whose employees were represented by
a union were laying off employees and that the Union would
not ‘‘secure our jobs.’’
Fitzpatrick questioned employee Nicole Chalifoux twice
on April 2, 1992, asking her if anybody was bothering her
about the Union, first at the back entranceway and second
in Fitzpatrick’s office. Fitzpatrick told Chalifoux that she
could not understand why anyone would come to work and
pay to do so. Chalifoux agreed and indicated that she was
annoyed that other employees seemed angry and were secre-
tive as a result of the union activity occurring at the Bradley
Field facility.
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 I am aware that Diaz was discharged by the Respondent for al-
legedly trying to run over another employee with his car. However,
his testimony appeared consistent with that of the other considered
employees whose credibility is more certain.
9 While Meyers testified that Fitzpatrick had asked her if she
signed a union authorization card, Meyers had failed to include this
in a ‘‘note’’ she gave to Divine regarding her conversation with
Fitzpatrick on April 2, 1992. Meyers testified credibly that while she
had not written this down, Fitzpatrick did ask her about signing a
card. I credit Meyers’ testimony since there appears in the record no
reason for her to lie about this, especially since she was still em-
ployed by the Respondent at the time she testified in this case. See
Georgia Rug Mill, 131 NLRB 1304 fn. 2 (1961).
Fitzpatrick also spoke to a number of garage employees
who were being shown a safety video at the time in the up-
stairs breakroom. At the conclusion of the video, Fitzpatrick
told these employees that they could be terminated even with
a union if they accumulated three warnings, and that she
knew of several big companies whose employees were rep-
resented by unions who were laying off employees.
Fitzpatrick asked them to report to management any employ-
ees who threatened them to sign union authorization cards,
‘‘green cards.’’
Fitzpatrick gave as her reasons for questioning employees,
that she wanted to make sure that no employees felt threat-
ened about their jobs because of the union activity occurring,
or was being harassed by other employees regarding the
Union. However, neither Scribner, Meyers, Chalifoux, nor
any of the garage workers testified that this had happened to
them. Instead, Scribner and Chalifoux only indicated annoy-
ance at all the talk about the Union and the union activity
taking place around them.
With regard to this issue, I credit the testimony of
Scribner, Meyers, Chaulifoux, and Diaz8 over that of
Fitzpatrick. Their testimony was given in a forthright manner
and was generally consistent with each other, while as set
forth hereinbefore, Fitzpatrick’s testimony on occasion was
contradictory, inconsistent, and equivocal. Moreover,
Scribner, Meyers, and Chalifoux were still employed by the
Respondent at the time of the hearing and their testimony,
apparently adverse to the Respondent on this issue, would be
entitled to additional weight in support of their credibility.
Shop-Rite Supermarket, 231 NLRB 500 (1977).
The record evidence shows that when Fitzpatrick learned
that a union meeting had taken place on the morning of April
2, 1992, she began a systematic interrogation of employees.
See, for example, Basin Frozen Foods, 307 NLRB 1406,
1415 (1992). In this case neither Scribner, Meyers, nor
Chalifoux was an open and active supporter of the Union at
the time that Fitzpatrick questioned them about their feelings
regarding the union activity, Fitzpatrick’s questioning did not
occur in the context of a ‘‘casual’’ and ‘‘friendly’’
converation, was limited solely and precisely to the employ-
ees’ personal sympathies and interplay with the Union, was
accomplished by the highest placed management supervisor
at the Respondent’s Bradley Field facility, occurred at work
and on worktime, in Meyers’ case concerned disclosure of
her own union activity if any9 and none of these employees
were self-proclaimed union adherents, and therefore con-
stituted unlawful interrogation of these employees. Hudson
Neckware, 302 NLRB 93 (1991); H.S.M. Machine Works,
284 NLRB 1482 (1987); Sunnyvale Medical Clinic, 277
NLRB 1217 (1985); Rossmore House, supra.
Moreover, where an employer seeks to have an employee
disclose his/her union sentiments without communicating a
valid purpose and an assurance against reprisal, such ques-
tioning will be held to be coercive. Monroe Mfg. Co., 200
NLRB 62 (1972). Not only did Fitzpatrick’s interrogations of
employees not contain such assurances against reprisals, but
the interrogation of Meyers also included in the same con-
versation unlawful implied threats of job loss as will be dis-
cussed more fully hereinafter.
From the above, I find and conclude that under all the cir-
cumstances present in this case, the Respondent’s interroga-
tion of Scribner, Meyers, and Chalifoux was unlawful and
violated Section 8(a)(1) of the Act because it reasonably
tended to restrain, coerce, and interfere with their rights guar-
anteed under the Act. Rossmore House, supra. Also see Hud-
son Neckwear, supra; H.S.M. Machine Works, supra.
Regarding Fitzpatrick’s statement to the garage workers to
report anyone going around with ‘‘green cards’’ and threat-
ening employees to sign the card, I do not find that this con-
stituted a violation of Section 8(a)(1) of the Act as alleged
by the General Counsel. In Arcata Graphics, 304 NLRB 541,
542 (1991), the Boad held that where a request by an em-
ployer for employees to report the identify of union card so-
licitors is not limited to reports on matters that could prop-
erly be within the employer’s legitimate concerns such as
‘‘threats,’’ such a request is unlawful since it has the ‘‘poten-
tial dual effect of encouraging employees to report to Re-
spondent the identity of union card solicitors who in any way
approach employees in a manner subjectively offensive to
the solicited employee, and of correspondingly discouraging
card solicitors in their protected organizing activities.’’ In
Arcata Graphics, the Board cited Liberty House Nursing
Homes, 245 NLRB 1194, 1197 (1979), wherein it held that
while requesting employees to report instances of ‘‘harass-
ment’’ violated Section 8(a)(1) of the Act, asking them to re-
port if they were ‘‘threatened’’ in connection with the union
activities is sufficiently specific as to constitute a lawful ex-
ercise of management’s right to enforce plant discipline.
Fitzpatrick confined her request to the garagemen for disclo-
sure to those union card solicitors who ‘‘threatened’’ em-
ployees to sign the cards.
However, Fitzpatrick’s questioning of Nicole Chalifoux re-
garding those employees who were ‘‘bothering’’ her about
the Union was ‘‘tantamount to a request that the employee
report persistent attempts to persuade and would therefore
tend to restrain the union proponent from attempting to per-
suade any employee through fear that such conduct would be
reported to management.’’ Sunbeam Corp., 287 NLRB 996,
997 (1988). I therefore find and conclude that the Respond-
ent violated Section 8(a)(1) of the Act when Fitzpatrick
asked Chalifoux to disclose the names of employees bother-
ing her about the Union. Arcata Graphics, supra; Colony
Printing & Labeling, 249 NLRB 223 (1980), enfd. 651 F.2d
502 (7th Cir. 1981).
Fitzpatrick also called Sam Divine to her office during the
evening of April 2, 1992, with regard to complaints by em-
ployees that Divine had allegedly threatened them with job
loss if they failed to sign a union authorization card. Divine
testified that Fitzpatrick asked him to identify the Union and
the names of the employees involved with it and as to why
685HERTZ CORP.
Divine wanted to engage in activities for the Union. While
Fitzpatrick denied such interrogation of Divine, I do not
credit her denial. In addition to the reasons previously set
forth hereinbefore for crediting the testimony of other wit-
nesses over that of Fitzpatrick when in conflict is the fact
that David Corris, who was present during this conversation
between Fitzpatrick and Divine, did not corroborate
Fitzpatrick’s testimony in some instances, i.e., both
Fitzpatrick and Divine testified that Divine had denied hav-
ing threatened employees to sign union cards, while Corris
stated that Divine had not done so. Additionally, while
Fitzpatrick testified on cross-examination that she had identi-
fied Pelletier and Connelly to Divine as the employees who
had reported that Divine had threatened them, Corris did not
corroborate this. Moreover, I do not credit the testimony of
Corris which appeared directed solely toward establishing the
implication that Divine admitted threatening employees since
he acknowledged having gotten ‘‘hot under the collar’’ with
fellow employees, regardless of the questions being asked
him, especially on cross-examination.
Therefore, I find and conlcude for much the same reasons
as set forth above concerning the Respondent’s engaging in
unlawful interrogation of other employees here that the Re-
spondent violated Section 8(a)(1) of the Act when Fitzpatrick
questioned Divine as to who was involved in the union activ-
ity and why the employees wanted union representation.
Rossmore House, supra. Also see Hudson Neckwear, supra;
H.S.M. Machine Works, supra.
Additionally, I do not find the cases cited by the Respond-
ent in its brief to be persuasive in support of its contentions
here. For example, in Premier Rubber Co., 272 NLRB 466
(1984), the employee questioned about attending a union
meeting was a ‘‘known union supporter’’; in Flint Provision
Co., 219 NLRB 523 (1975), unlike the instant case, the ques-
tioning there did not occur against a background of the em-
ployer’s antiunion campaign calculated to intimidate and co-
erce its employees; and Liquitane Corp., 298 NLRB 292
(1980), and Classe Ribbon Co., 227 NLRB 406 (1976), actu-
ally tend to support the General Counsel’s case more than
the Respondent’s regarding unlawful interrogation as alleged
in the complaint.
b. Surveillance
The complaint in Case 34–CA–5684 alleges that the Re-
spondent violated Section 8(a)(1) of the Act when it created
the impression that it was keeping under surveillance the
union activities of its employees. The Respondent denies this
allegation.
In determining whether a respondent has created an im-
pression of surveillance, the Board applies the following test:
whether employees would reasonably assume from a state-
ment or action in question that their union activities have
been placed under surveillance. United Charter Service, 306
NLRB 150 (1992); South Shore Hospital, 229 NLRB 363
(1977); Schrementi Bros., 179 NLRB 853 (1969).
The evidence here shows that on April 2, 1992, in separate
conversations with Maxine White and Sam Divine, Erlene
Fitzpatrick told them that she knew that they had a union
meeting that day. This meeting was held at a nearby res-
taurant, not on the Respondent’s premises, the record strong-
ly suggests that the employees did not engage in union ac-
tivities openly, and Fitzpatrick’s statements were made along
with threats of loss of benefits if a union came in within the
same conversations, as will be more fully discussed herein-
after.
Accordingly, I find that Fitzpatrick’s statements to White
and Divine created the impression that the employees’ pro-
tected concerted activities were under surveillance and the
Respondent thereby violated Section 8(a)(1) of the Act.
United Charter Service, supra; Spring City Knitting Co., 285
NLRB 426 (1987); Hamilton Avnet Electronics, 240 NLRB
781 (1979).
Moreover, according to the unrebutted testimony herein,
Station Manager Jeff Wilcox was observed by employees re-
cording license plate numbers in the parking area of the Hol-
iday Inn in Windsor Locks, Connecticut, on May 11, 1992,
wherein a union meeting was taking place with some of the
Respondent’s employees. There was no good cause shown by
the Respondent for Wilcox’s action. Such conduct inhibits
employees in their communication with a union, thereby re-
straining and coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act. The same rationale
would apply here as the Board found applicable in Crown
Cork & Seal Co., 254 NLRB 1340 (1981). Therefore, I find
that the Respondent violated Section 8(a)(1) of the Act by
this conduct.
Additionally, Station Managers Wilcox and/or Greg
Lindberg began a pattern of sitting in the breakroom when-
ever White and Divine appeared there together beginning on
April 9, 1992, and remained there for the whole time that
White and Divine were present, which these supervisors had
never done before. The Respondent produced no evidence to
show that this practice had occurred previous to the advent
of these employees’ union activities. While Fitzpatrick had
advised the Respondent’s supervisors that they should make
sure that Divine and White do not threaten other employees
regarding the Union, this does not justify the obvious mon-
itoring and surveillance of White and Divine together on
break. The Respondent offered no evidence to show that the
action of its supervisors in this respect occurred only when
other employees than White and Divine were present in the
breakroom or that there was any justifiable reason for such
conduct other than to overhear what White and Divine were
saying and to place under surveillance their activities regard-
ing the Union. I therefore find that the Respondent’s actions
in observing what was occurring and/or listening to the con-
versations of these employees, in the context of a vigorous
antiunion campaign, constituted surveillance of its employees
in violation of Section 8(a)(1) of the Act. Belcher Towing
Co., 265 NLRB 1258 (1982), enfd. in pertinent part 726 F.2d
705 (11th Cir. 1984); Alexander’s Restaurant & Lounge, 228
NLRB 165 (1977), enfd. 586 F.2d 1300 (9th Cir. 1978).
c. Threats
The complaint in Case 34–CA–5684 alleges that the Re-
spondent violated Section 8(a)(1) of the Act by threatening
employees with layoffs and other loss of employment, and
with the loss of benefits if they engaged in union activities
or solicited the Union to represent them in collective bar-
gaining; and informed employees that it would be futile for
them to select the Union as their bargaining representative.
The Respondent denies these allegations.
As the Board and the courts have recognized, in the course
of organizational campaigns, statements are sometimes made
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 For the reasons stated hereinbefore, I credit the testimony of
White and Divine over that of Fitzpatrick.
of a kind that may or may not be coercive, depending on the
context in which they are uttered. In order to derive the true
import of these remarks, it is necessary to view the cir-
cumstances in which they are made. Shaw’s Supermarkets,
289 NLRB 844 (1988).
The evidence here indicates that during her conversations
with employees Ann Marie Meyers, Maxine White, and Sam
Divine and with the garage employees on April 2, 1992,
Fitzpatrick told them that UTC and other major companies
in the area having unions were laying off employees and, in
effect, that a union could not secure or save their jobs. First,
I credit the testimony of these employees over that of
Fitzpatrick for the reasons set forth hereinbefore and also be-
cause their testimony was generally forthright and corrobora-
tive of each others regarding this issue. Moreover and sig-
nificantly, this statement was made to Meyers, White, Di-
vine, and the garage employees only, and while Fitzpatrick
spoke to other employees as well, such as Judy Williams,
Lisa Scribner, and Nicole Chalifoux, she did not repeat this
statement to them. Williams, Scribner, and Chalifoux each
indicated to Fitzpatrick during their conversations that they
did not support union representation. Also, Fitzpatrick ap-
pears to have made this statement as an adjunct to her un-
lawful interrogation of these employees and in the case of
the garage employees, in connection with other seemingly
negative remarks about union representation.
In effect the Respondent implied to its employees that the
selection of a union to represent them could result in layoffs
which the Union could do nothing about. I therefore con-
clude that the Respondent violated Section 8(a)(1) of the Act
when Fitzpatrick made the above unlawful statements to em-
ployees. Minette Mills, 305 NLRB 1032 (1991). Contrast
Liquitane Corp., 298 NLRB 292, 296–297 (1990), wherein
the employer explained in some detail the reasons for men-
tioning plant closings and layoffs by other companies, unlike
the instant case wherein the unlawful statement was made
without more or any explanation.
At the general meeting with employees on April 8, 1992,
Fitzpatrick repeated, this time to all the employees, that UTC
and ‘‘Caterpillar’’ have unions and, despite this, these com-
panies were laying off employees. Again this statement im-
plied that the selection of a union could result in employee
layoffs which the Union would be ineffectual in preventing.
Therefore, for the same reasons as above, excluding
Fitzpatrick’s selective choice as to whom she would make
such statements when meeting individually with employees,
I find that the Respondent violated Section 8(a)(1) of the
Act.
Additionally, Fitzpatrick also told White during their April
2, 1992 conversation that if there was a union, she would not
be allowed to have coffee or a cigarette. Fitzpatrick also told
Divine during their April 2, 1992 conversation that the em-
ployees could lose all their benefits if a union came in.10
Fitzpatrick spoke in absolute terms concerning the con-
sequences of unionization. In effect, the Respondent told its
employees that the selection of a union to represent them
would result in dire disadvantages such as loss of benefits
and this was attributed solely to union representation. This
is also true of Fitzpatrick’s statement to White on April 17,
1992, that if the Union came in the Respondent would not
have to give health benefits to Sam Divine.
I therefore find and conclude that the Respondent violated
Section 8(a)(1) of the Act when Fitzpatrick made the above
unlawful statements. South Carolina Baptist Ministries, 310
NLRB 156 (1993); Minette Mills, supra; Standard Products,
281 NLRB 141 (1986).
Also, Fitzpatrick’s statements to Divine on April 2, 1991,
that if there was a union, the employees could lose all their
benefits, that the Union doesn’t do anything for the employ-
ees at the Respondent’s Boston facility, and that employees
at the Hartford facility have better benefits than the Boston
employees, in effect informed employees that it would be fu-
tile for them to select the Union as their bargaining rep-
resentative. I therefore find that the Respondent violated Sec-
tion 8(a)(1) of the Act by such statements.
Moreover, within a few days after April 2, 1992, while
Diaz was standing near an outside gasoline pump, Fitzpatrick
drove up and advised Diaz to ‘‘get ready for a long trip.’’
A short while later she told him that he was the Union’s
treasurer. After she drove away, leadman James Hartford
who had been present in Fitzpatrick’s car when this occurred
then told Diaz that in effect he should not count on Hart-
ford’s vote in favor of the Union. While Fitzpatrick testified
that she only asked Diaz if he were the Union’s treasurer as
a joke, I do not credit her testimony for the reasons set forth
hereinbefore. Additionally, Hartford did not testify here to
corroborate her testimony regarding this. Thus, a top-level
manager telling an employee to get ready for a long trip, and
then telling him that he is the Union’s treasurer, followed by
a leadman who witnessed this and asserting to the employee
that he cannot count on a favorable vote for the Union from
him, strongly implies a threat of layoff or some discipline for
that employee’s union activities. No other implication makes
sense in such a sequence. Even if it is argued that the state-
ment implying layoff is somewhat ambiguous, it would still
constitute an unlawful threat of discipline because of union
activity, since an employer’s words may be ambiguous and
still constitute a violation of the Act. Webb’s Industrial Plant
Service, 260 NLRB 933, 939 (1982). I therefore find that the
Respondent violated Section 8(a)(1) of the Act regarding
Fitzpatrick’s statements to Diaz.
d. Solicitation of grievances
The complaint in Case 34–CA–5684 alleges that the Re-
spondent, by Scott Sider, violated Section 8(a)(1) of the Act
by soliciting employee complaints and grievances and prom-
ising employees increased benefits and improved terms and
conditions of employment on April 8 and 30 and May 15,
1992. The Respondent denies these allegations.
In Reliance Electric Co., 191 NLRB 44, 46 (1971), the
Board stated:
Where, as here, an employer, who has not previously
had a practice of soliciting employee grievances or
complaints, adopts such a course when unions engage
in organizational campaigns seeking to represent em-
ployees, we think there is a compelling inference that
he is implicitly promising to correct these inequities he
discovers as a result of his inquiries and likewise urging
on his employees that the combined program of inquiry
687HERTZ CORP.
and correction will make union representation unneces-
sary.
Furthermore, in Uarco Inc., 216 NLRB 1 (1974), the Board,
on reference to the holding in Reliance Electric Co., supra,
stated:
However, it is not the soliciation of grievances itself
that is coercive and violative of Section 8(a)(1), but the
promise to correct grievances or a concurrent interroga-
tion or polling about union sympathies that is unlawful;
the solicitaiton of grievances merely raises an inference
that the employer is making such a promise, which in-
ference is rebuttable by the employer.
The promise is implied from the circumstances of the case,
including the timing of the solicitation and the announced
purpose thereof. Lasco Industries, 217 NLRB 527 (1975).
Also see Mast Advertising & Publishing, 286 NLRB 955 fn.
2 (1987).
By posted notice to employees, the Respondent held meet-
ings with its employees on April 8 and 30 and May 15,
1992, in groups and then individually with employees from
April 30 through mid-May 1992. The evidence here shows
that these meetings at the Bradley Field facility were unprec-
edented in that they were held by a top-level corporate re-
gional vice president, Sider, were opened to employee ques-
tions on a scale never done before, and at the April 8, 1992
meeting followed by a buffet luncheon for the attending em-
ployees, which was also unprecedented. Moreover, these
meetings were a direct response to the union campaign and
were admittedly held to address employee concerns, com-
plaints, and problems regarding their job security and work-
ing conditions and to see if they could be ‘‘worked out.’’
However, Sider also told the employees that the Respondent
was making no promises or guarantees regarding such con-
cerns or complaints.
Furthermore, the solicitation of grievances at preelection
meetings, especially where an employer has not had a prac-
tice of soliciting employee grievances or complaints before,
as is true at the Respondent’s Bradley Field facility, carries
with it the inference that the employer is implicitly promis-
ing to correct these inequities, even though the employer
merely states it would look into or review the problems but
did not commit itself to corrective action or promise to rem-
edy them. Permanent Label Corp., 248 NLRB 118, 130
(1980), and cases cited therein.
Additionally, at the May 15, 1992 meeting the Respondent
distributed a memorandum to the employees which set forth
‘‘proposals initiated by employee concerns voiced at prior
meetings.’’ The Respondent characterizes this as ‘‘merely
clarifying’’ its administrative policies on issues raised by em-
ployee questions. However, I believe that such ‘‘clarifica-
tion’’ tended toward indicating to the employees that their
concerns or problems raised at these meetings regarding such
policies would be ameliorated, at the least by implication,
and suggested to them that other voiced concerns would be
discussed and considered in the future. Stride Rite Corp., 228
NLRB 224 (1977).
From all the above, I find and conclude that the Respond-
ent violated Section 8(a)(1) of the Act by soliciting griev-
ances from its employees with implicit promises to rectify
them. Vinyl-Fab Industries, 265 NLRB 1097 (1983); Hamil-
ton Avnet Electronics, 240 NLRB 781 (1979); Reliance Elec-
tric Co., supra. Also see General Electric Co., 264 NLRB
953 (1982).
The Respondent cites Kinder-Care Learning Centers, 284
NLRB 509, 516 (1987), in support of its contention that this
allegation should be dismissed. However that case is distin-
guishable from the instant case. In the case at bar, the meet-
ings held were unprecedented in nature and scope and the
statements made were not only that these concerns and griev-
ances would be ‘‘looked into,’’ but ‘‘worked out’’ if pos-
sible, although no promises were being made to remedy
them, unlike, as in the Kinder-Care case. Moreover, the Re-
spondent’s memorandum distributed at the latter group meet-
ing with employees, which addressed some of their concerns
and problems raised, could reasonably be interpreted by the
employees as carrying the implication that the Respondent
would correct these grievances and complaints along the
way.
e. Restrictions on union activities
The complaint in Case 34–CA–5684 alleges that the Re-
spondent violated Section 8(a)(1) of the Act by promulgating
and maintaining a rule prohibiting employees from engaging
in union activities during working time on the Respondent’s
property. The Respondent denies this allegation.
During their conversation on April 2, 1992, Fitzpatrick
told White not to talk about the Union to other employees
working at their counters, and that engaging in union activi-
ties such as distributing union literature and talking about the
Union on companytime on the Respondent’s premises was
‘‘against the rules.’’ Additionally, the Respondent informed
Divine on April 3, 1992, that he was being suspended for
violating a work rule: ‘‘Conducting non-Hertz business in-
volving any and all Hertz employees while you or said em-
ployees are on working time and/or in working areas will not
be tolerated.’’
The record evidence here shows that the Respondent had
enforced no restrictions on what employees could say to one
another at their counters or elsewhere when customers were
not present including work areas and on working time.
Fitzpatrick admitted that she had not enforced the rule
against such talk. Enforcing a rule which prohibits discussion
of the Union or distribution of union materials on working
time or in working areas, where there has been no enforce-
ment of restrictions on other subjects or materials, is dis-
criminatory and violates Section 8(a)(1) of the Act and I so
find in this case. Capitol EMI Music, Inc., 311 NLRB 997
(1993), enfd. mem. 23 F.3d 399 (4th Cir. 1994) ; New Proc-
ess Co., 290 NLRB 704 (1988); Our Way, Inc., 268 NLRB
394 (1983).
Moreover, when Fitzpatrick told Divine that he could en-
gage in union activities but not during ‘‘working hours’’ she
was in effect promulgating a rule that was presumptively in-
valid because that term connotes periods from the beginning
to the end of work shifts, periods that include the employee’s
own time. This violated Section 8(a)(1) of the Act. Our Way,
Inc., supra. Also see Chicago Metallic Corp., 273 NLRB
1677 (1985). While the Respodnent’s no-solicitation rule
may have been presumptively valid, Fitzpatrick had unlaw-
fully modified it in appplication. Our Way, Inc., supra at fn.
6.
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
f. Additional 8(a)(1) violations
The complaint in Case 34–CA–5684 alleges that the Re-
spondent violated Section 8(a)(1) of the Act when it in-
formed employees that they were being disciplined because
of their union and other protected concerted activities.
On April 3, 1992, Fitzpatrick told Divine on his suspen-
sion for 3 days without pay, that he should not get involved
in other people’s problems. From the content of the con-
versation the previous day between Divine and Fitzpatrick re-
garding the possibility of discipline for his alleged actions,
the conclusion is inescapable that Fitzpatrick’s mention of
other people’s problems meant the employees’ unhappiness
with the Respondent and their decision to seek union rep-
resentation to resolve this. Coming right after Fitzpatrick’s
notification to him of his suspension, this in effect amounted
to her informing him that he was being disciplined because
of his union activities. I therefore find and conclude that the
Respondent violated Section 8(a)(1) of the Act in this regard.
Additionally, while the complaint in Case 34–CA–5684
does not specifically allege a violation of Section 8(a)(1) of
the Act by the Respondent promising benefits if the employ-
ees refrain from engaging in union activities, the General
Counsel so asserts in his brief. However, I find that this mat-
ter was fully litigated at the hearing and is closely related to
other allegations in the complaint. See, for example, Soltech,
Inc., 306 NLRB 269 (1992).
At the April 8, 1992 meeting with employees, Fitzpatrick
spoke about area companies with union representation who
were laying off employees and explained that while the Re-
spondent was eliminating managerial positions, there would
be no layoffs or firing of employees at the Respondent’s
Bradley Field facility. In connecting these occurrences there
arises a strong inference that the Respondent was impliedly
promising the benefit of no employee layoffs if its employees
refrained from engaging in union activities to bring in a
union. I therefore find that the Respondent violated Section
8(a)(1) of the Act by such conduct.
2. The 8(a)(3) violations—Case 34–CA–5684
Section 8(a)(3) of the Act makes it an unfair labor practice
for an employer to discriminate ‘‘in regard to hire or tenure
of employment or any term or condition of employment to
encourage or discourage membership in any labor organiza-
tion.’’ Under the test announced in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), and approved by the Supreme Court
in NLRB v. Transportation Management Corp., 462 U.S. 393
(1983), a discharge is violative of the Act only if the em-
ployee’s protected conduct is a substantial or motivating fac-
tor for the employer’s action. If the General Counsel carries
his burden of proving unlawful motivation, then the em-
ployer may avoid being held in vioaltion of Section 8(a)(1)
and (3) of the Act only if it can show that ‘‘the same action
would have taken place even in the absence of the protected
conduct. Wright Line, supra, 251 NLRB at 1089. Also see
J. Huizinga Cartage Co. v. NLRB, 941 F.2d 616 (7th Cir.
1991). In establishing a prima facie case of unlawful motiva-
tion as the first part of the Wright Line test, the General
Counsel is required to prove not only that the employer knew
of the employee’s union activities, but also that the timing
of the alleged reprisal was proximate to the protected activi-
ties and that there was antiunion animus ‘‘to link the factors
of timing and knowledge to the improper motivation.’’ Hall
Construction v. NLRB, 941 F.2d 684 (8th Cir. 1991). It is
also well settled, however, that when an employer’s stated
motives for its actions are found to be false, the circumstance
may warrant an inference that the true motivation is an un-
lawful one that the employer desires to conceal. Shattuck
Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1960).
The motive may be inferred from the total circumstances
proved. Moreover the Board may properly look to
curcumstantial evidence in determining whether the employ-
er’s actions were illegally motivated. Associacion Hospital
del Maestro, 291 NLRB 198 (1988); White-Evans Service
Co., 285 NLRB 81 (1987); NLRB v. O’Hare-Midway Lim-
ousine Service, 924 F.2d 692 (7th Cir. 1991). That finding
may be based on the Board’s review of the record as a
whole. ACTIV Industries, 277 NLRB 356 (1985); Heath
International, 196 NLRB 318 (1972).
The complaint in Case 34–CA–5684 alleges that the Re-
spondent violated Section 8(a)(1) and (3) of the Act when it
suspended Samuel Divine for 3 days on April 3, 1992. The
Respondent denies this allegation.
The record establishes ample evidence of Divine’s union
activities. Between March 23 and April 2, 1992, Divine
spoke to employees about the Union and the union meeting
scheduled for April 2, 1992. At this meeting he signed a
union authorization card and later that day, at the Respond-
ent’s Bradley Field facility, distributed authorization cards to
other employees requesting them to sign the cards. That the
Respondent had knowledge of Divine’s support for the
Union is also confirmed in the record. On April 2, 1992,
Fitzpatrick called Divine to her office and spoke to him
about employee complaints against him for allegedly threat-
ening them if they refused to sign union authorization cards
and then Fitzpatrick proceeded to unlawfully interrogate Di-
vine about his activities on behalf of the Union and the union
activities of other employees. Additionally, Fitzpatrick admit-
ted that she was aware of union activity among the Respond-
ent’s employees prior to April 2, 1992.
The Respondent’s animus toward the Union is also clearly
demonstrated by the numerous unfair labor practices found
here, engaged in by the Respondent in violation of Section
8(a)(1) of the Act. Roure Bertrand Dupont, Inc., 271 NLRB
443 (1984). The Respondent unlawfully interrogated its em-
ployees regarding their union activities and those of other
employees, threatened employes with layoff and discharge if
they engaged in union activities, created the impression that
employees’ union activities were under surveillance, solicited
employee grievances, and implicitly promised increased ben-
efits, etc.
Moreover, Divine was suspended 1 day after the Respond-
ent learned of his union activities. In fact, the evidence here
tends to show that the Respondent could then have well be-
lieved that Divine was the leading union adherent at its facil-
ity. Thus the timing of Divine’s suspension in close proxim-
ity to his union activities gives rise to a strong inference that
it was unlawfully motivated. Health International, Inc., 196
NLRB 318 (1972).
As found here, the Respondent engaged in numerous vio-
lations of Section 8(a)(1) of the Act at times relevant and
material regarding the employees’ union activities including
Divine’s. This together with the Respondent’s knowledge of
689HERTZ CORP.
11 In addressing the Respondent’s assertions in its brief regarding
this, the fact that the Respondent only disciplined one of four em-
ployees engaged in union soliciting activities does not, without more,
support an inference that the Respondent’s motivation for such dis-
cipline was lawful. Nachman v. NLRB, 337 F.2d 421 (7th Cir. 1964).
Moreover, Fitzpatrick had discovered on April 2, 1992, that Divine
was perhaps the most active union adherent among the Respondent’s
employees. Additionally, even assuming arguendo, that the Respond-
ent had established that Divine’s solicitations resulted in employee
work interference, Divine’s suspension would still be unlawful since
it was based on a personnel rule that was enforced discriminatorily
against union activity by employees. Also, while advancing as one
of the reasons for Divine’s suspension, that he engaged in union ac-
tivities while on working time or in working areas, the Respondent
failed to indicate to Divine that this reason encompassed his interfer-
ing with specifically identified employees or adequately explained
what lawful solicitation entailed as to proper time and place for such
solicitation. See New Process Co., supra at 722.
Divine’s union activities evidences that the General Counsel
has established a prima facie case that a reason for the Re-
spondent’s suspension of Divine was his union activities and
was discriminatorily motivated. Wright Line, supra; Roure
Bertrand Dupont, Inc., supra.
In order to rebut the prima facie case, the Respondent
must show that it would have suspended Divine even in the
absence of his union activities. The Respondent has the bur-
den of presenting ‘‘an affirmative defense in which the em-
ployer must demonstrate by a preponderance of the evidence
that the same action would have taken place even in the ab-
sence of the protected conduct.’’ Equitable Gas Co., 303
NLRB 925 (1991); Chelsea Homes, 298 NLRB 813 (1990).
As set forth in its letter dated April 3, 1992, the Respond-
ent suspended Sam Divine for 3 days because he violated
two ‘‘related work rules,’’ by conducting non-Hertz business
involving Hertz employees while Divine or the employees
were on working time and/or in working areas, and by dis-
rupting harmony, intimidating fellow employees, or interfer-
ing with the normal and efficient operation of the Employer’s
business. The first reason is based on rule 6 of the Respond-
ent’s rules and regulations which prohibits ‘‘Soliciting or dis-
tributing and collecting any papers, materials or contributions
on working time or in work areas.’’
As found hereinbefore, the Respondent violated Section
8(a)(1) of the Act when it selectively enforced a non-solicita-
tion rule only as against union activities, where no such re-
striction had been enforced before. Suspending an employee
for violating such a rule violates Section 8(a)(3) of the Act
as well as it constitutes discriminatory action because an em-
ployee is engaging in union solicitation. See New Process
Co., supra at 722.
As also found hereinbefore, the General Counsel has sus-
tained his burden under Wright Line of establishing that
Divine’s union activity was a motivating factor in the Re-
spondent’s decision to suspend him. The above finding that
one of the two reasons offered in support of Divine’s suspen-
sion, that his union activity violated the Respondent’s no-so-
licitation rule, actually referred to conduct which in this case
was protected by the Act, and additionally supports the con-
clusion that the General Counsel sustained his burden under
Wright Line regarding motivation11 notwithstanding the Re-
spondent’s denial in its brief that this played a part in its de-
cision to suspend him. Mark Industries, 296 NLRB 463 fn.
2 (1991). Also see Chicago Metallic Corp., 273 NLRB 1677
(1985).
Pursuant to Wright Line, the burden of proof now shifts
to the Respondent to show that it would have suspended Di-
vine even in the absence of his union activity. The Respond-
ent asserts that its actual reason for suspending Divine was
that he threatened employees with loss of their jobs if they
failed to support the Union by signing union authorization
cards. In NLRB v. Burnup & Sims, 379 U.S. 21 (1964), the
Supreme Court held that an employer violates Section 8(a)(1)
of the Act when it disciplines an employee for misconduct
arising out of a protected activity, despite the employer’s
honest belief that such misconduct occurred, when it is
shown that the misconduct never occurred. Where it is addi-
tionally shown that the employer disciplined the employee in
such circumstances with an antiunion motivation, then the
employer has also violated Section 8(a)(3) of the Act. Elk
Brand Mfg. Co., 253 NLRB 1038 (1981). The Respondent’s
good-faith belief that Divine engaged in misconduct in con-
nection with his union activities is no defense to the viola-
tion, if in truth, Divine did not engage in such misconduct.
Grant Food, 252 NLRB 1308 (1980); Classe Ribbon Co.,
227 NLRB 406 (1976). However, the burden of going for-
ward with evidence to prove that Divine did not, in fact, en-
gage in the misconduct alleged is on the General Counsel.
Burnup & Sims, supra at 23 fn. 3.
Misconduct, however, will not be found readily, for both
the Board and the courts have granted considerable latitude
to employees for argument and counterargument in
preelection situations, recognizing the ‘‘strong emotions’’
generated by union activity. Burnup & Sims, supra at 23.
Thus, relatively minor incidents of misconduct, such as
name-calling or somewhat ambiguous or veiled threats will
not serve to divest employees of their statutuory protection.
Twilight Haven, Inc., 235 NLRB 1337, 1342 (1978).
Additionally, as the Board stated in YMCA of the Pikes
Peak Region, 291 NLRB 998 (1988):
It is true that, under certain circumstances, concerted
activity for the mutual aid and protection of employees
may lose the Act’s protection. [Citations omitted.]
Those circumstances include public disparagement of
an employer’s product, a strike in breach of a collective
bargaining agreement, conduct that contravenes the
basic policies of the Act, or violence.
While the Board has also affirmed decisional language that
threats of job loss for not supporting a union made by one
rank-and-file employee to another are not objectionable, and
that such statements can be readily evaluated by employees
as being beyond the control of the union, this has been con-
sidered in the context of setting aside an election and the im-
pact on employees free and uncoerced choice regarding their
election votes, and not for the purposes of the justification
for disciplinary action against an employee who allegedly has
engaged in such conduct. See Pacific Grain Products, 309
NLRB 690 (1992); Bonanza Aluminum Corp., 300 NLRB
584 (1990); Duralam, Inc., 284 NLRB 1419 fn. 2 (1987).
According to the credited testimony of Sam Divine, during
the evening of April 2, 1992, he was called to Fitzpatrick’s
office where she informed him that he was being relieved of
his duties because four employees had told her that Divine
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had threatened them with loss of their jobs if they failed to
sign a union authorization card. After Divine denied engag-
ing in such conduct and requested that Fitzpatrick produce
his accusers or disclose their names, Fitzpatrick refused to do
so. On April 3, 1992, Fitzpatrick advised Divine that he was
being suspended for 3 days instead of being discharged be-
cause he was a good worker and his suspension letter stated
two reasons for such discipline, as discussed above.
The record evidence shows that the Respondent, through
Fitzpatrick, had knowledge that Divine was engaged in pro-
tected activity, that of contacting the Union and soliciting
other employees to support the Union. Additionally, the Re-
spondent accused Divine of campaigning for the Union on
working time and in working areas and engaging in mis-
conduct during his union activity. After Fitzpatrick learned
that Divine had allegedly threatened employees Jerry
Pelletier and John Connelly, she questioned them about the
incidents and asked them to submit a written statement of
what had occurred with Divine. Fitzpatrick then asked Divine
about the alleged threats and, although she would not divulge
the names of the employees involved or produce them for
confrontation with Divine, she did disclose the nature of
these threats. Fitzpatrick also consulted with higher manage-
ment regarding the complaints against Divine before
concuding that some discipline should be imposed. Moreover
Divine told Fitzpatrick near the end of their conversation that
if he had ‘‘hurt anybody or hurt the company, I apologize.’’
While such a statement by Divine seems ambiguous and is
subject to various meanings being read into it, this could be
considered as some support for concluding that the Respond-
ent could reasonably have a good-faith belief that Divine had
engaged in the alleged misconduct. Fitzpatrick’s relieving Di-
vine of his duties for the rest of his work tour that evening
on April 2, 1992, appears more cautionary than discrimina-
tory at the time, while she consulted with higher manage-
ment as to what to do, based on the nature of the alleged
misconduct.
From all of the above, I find and conclude that the Re-
spondent, despite its obvious opposition to the Union and un-
happiness with Divine’s union activities, could also honestly
have believed that Divine had threatened employees while
soliciting their support for the Union, an activity which with-
out the alleged threats, would otherwise have been protected.
Classe Ribbon Co., supra; Chicago Metallic Corp., supra.
Contrast Northway Manor Nursing Home, 243 NLRB 544
(1979).
The next factor to be considered under the Burnup & Sims
guidelines is whether, in fact, Divine was guilty of the al-
leged misconduct. The Respondent contends that it sus-
pended Divine because it believed that he had threatened at
least four employees, two of whom, Pelletier and Connelly,
had told Fitzpatrick directly that Divine had threatened them
with the loss of their jobs if they failed to sign a union au-
thorization card. As it appears from the record, at the time
of Divine’s suspension Pelletier and Connelly were the only
employees who had actually registered such complaints
against Divine.
Under the circumstances present in this case, I cannot pos-
sibly credit the testimony of Pelletier and Connelly regarding
the alleged threats made to them by Divine. Pelletier and
Connelly were obviously biased witnesses with every reason
to testify adversely against Divine and in support of the Re-
spondent, regardless of the truth. I am aware that the Re-
spondent challenges Divine’s credibility pointing out in its
brief some discrepancies in Divine’s testimony including his
affidavit given to a Board agent which the Respondent as-
serts warrants a finding that he is not a credible witness. I
have reviewed these and find that while inconsistencies do
exist, some of these are subject to counterinterpretations,
some were explained by Divine in the record, and as a whole
these inconsistencies were insufficient to affect the exceed-
ingly strong evidence of bias against Divine displayed by
Pelletier and Connelly in their testimony, and as to other
facts brought out in the record. Also, I previously credited
Divine’s testimony regarding other issues in this case, find-
ing him to have testified in a forthright manner and to be
supported by other evidence present here. Moreover,
Connelly’s testimony was at times also contradictory, and
that of Pelletier at times unclear.
Concerning Pelletier, the record evidence clearly estab-
lishes that he intensely resented and feared Divine even be-
fore the start of the Union’s organizing campaign. During his
testimony, Pelletier exhibited a great deal of bitterness and
animosity toward Divine that was striking. Pelletier asserted
that Divine constantly criticized his work and he blamed Di-
vine for management’s unhappiness with his job performance
which Divine often reminded him of, and he truly disliked
Divine for additionally telling other employees of Pelletier’s
work deficiencies, especially in view of Divine’s position as
lead busdriver over him. Pelletier admitted being very con-
cerned about the security of his job because of Divine’s
statements regarding his disfavor with management and he
‘‘felt’’ that Divine was using this as ‘‘leverage’’ to compel
him on April 2, 1992, to sign an authorization card even if
he might not want to do so.
From the evidence here it is reasonable to assume that
Pelletier was aware that the Respondent opposed the Union
even before April 2, 1992. This was highlighted by all the
talk among employees on April 2, 1992, about the signing
of union authorization cards. Additionally, it is clear from
the nature of Pelletier’s testimony that whatever Divine said
to him that day about the Union and signing a card, Pelletier
‘‘felt’’ that this amounted to a threat of job loss if he failed
to sign the card and interpreted it as such.
Divine denied threatening Pelletier with loss of his job if
he failed to sign a union authorization card. Divine did ac-
knowledge having previously spoken to employees about the
need and advantages of union representation. At one meeting
of employees prior to April 2, 1992, Divine discussed his in-
terpretation of the meaning of a ‘‘closed shop’’ indicating
that if people failed to join the Union they could lose their
jobs. Thus, even assuming that Divine told Pelletier on April
2, 1992, that it was in Pelletier’s best interest to sign the
union authorization card in order to keep his job, as Pelletier
testified, I do not regard this as a clear and unambiguous
threat egregious enough to constitute misconduct sufficient to
deprive Divine of the protection of the Act while engaged in
union activities. See Twilight Haven, Inc., supra; Classe Rib-
bon Co., supra at 408–409. According to Pelletier, Divine
had often on prior occasions told him that he needed the
Union for support in view of the Respondent’s unhappiness
with his job performance and that if Pelletier did not go
along with the majority in voting for the Union he would
lose his job. Moreover, Pelletier’s testimony as to what Di-
691HERTZ CORP.
vine actually told him on April 2, 1992, was at times unsure
and shaky.
It is noteworthy that until April 2, 1992, when Fitzpatrick
commenced her interrogation of employees regarding any
threats or harassment made against them by other employees,
Pelletier had never complained before to management about
the alleged threats Divine was constantly directing at him re-
garding loss of his job if he failed to support a union.
Pelletier’s complaints to ‘‘manager’’ Connelly apparently
were in regard to Divine’s incessant criticism of Pelletier’s
work performance and, if also in regard to Pelletier’s job se-
curity, where not taken seriously by Connelly who told
Pelletier so. Connelly was a station manager at that time.
Therefore the Respondent’s display of interest in finding
union adherents who had allegedly threatened other employ-
ees regarding their lack of support of the Union and its
known opposition to union representation of its employees
set the stage for Pelletier and, as will be discussed herein-
after, also for Connelly to significantly curry favor with the
Respondent by asserting that threats had been made against
them by Divine, perhaps the most active of the union adher-
ents.
Regarding Connelly, his employment history with the Re-
spondent is revealing. Connelly had been lead busdriver until
October 13, 1989, when he was promoted to a station man-
ager’s position. On March 23, 1992, in a reduction of mana-
gerial staff, Connelly was reduced to a busdriver’s position.
Meanwhile Divine had become the lead busdriver after
Connelly became a station manager which now placed
Connelly in a subordinate position to Divine when he be-
came a busdriver in March 1992. It strongly appears from
the evidence that Connelly resented his reduction in position
and also Divine’s not only being placed in a position above
him, but as to Divine’s activities on behalf of the Union and
in support of union representation of the Respondent’s em-
ployees, which Connelly was unequivocally opposed to. Ac-
cording to Divine’s credited testimony, during an employee
meeting to discuss the need for union representation,
Connelly belligerently accused Divine of threatening him
about not supporting the Union when Divine discussed the
meaning of a ‘‘closed shop’’ in response to an employee’s
question about this. Moreover, prior to the advent of the
Union’s organizing campaign, he and Divine had been on
friendly terms and he had not felt ‘‘threatened’’ by Divine
before.
Connelly alleged that Divine had threatened him on April
2, 1992, telling him that if Connelly failed to sign an author-
ization card Divine would tell management about things
Connelly had done while in the position of station manager
that would result in Connelly being fired. Divine did not
specify what these things were. Divine denied making such
a threat. Even assuming he had, I do not find that this would
constitute misconduct sufficient to deprive Divine of the pro-
tection of the Act, while he was engaged in union activity.
Moreover, and of more than passing interest, Connelly was
promoted back again to the position of station manager ap-
proximately 3 months prior to his appearance as a witness
for the Respondent in this case.
Of additional significance is the fact that while Fitzpatrick
told both Pelletier and Connelly on April 2, 1992, that to
prove that they were ‘‘sincere’’ about being threatened by
Divine about their jobs they would have to give written state-
ments to the Respondent regarding such threats, the Re-
spondent suspended Divine the very next day April 3, 1992,
prior to the receipt of any such written statements from
Pelletier and Connelly, which were not submitted until April
4 and 5, 1992, respectively. Moreover, Fitzpatrick admitted
that the allegations against Divine made by Pelletier and
Connelly were not in character and that Divine was a good
employee. Finally, as noted by the General Counsel in his
brief, when Fitzpatrick told Divine that he was being sus-
pended, after Divine had explained to her the reasons for his
union activities, she told him that he shouldn’t involve him-
self in other people’s problems, obviously meaning the em-
ployees’ desire for union representation and Divine’s activi-
ties regarding the Union on their behalf, thus ‘‘[giving] the
game away.’’
From all the above, I find and conclude that when the Re-
spondent suspended Divine because of his union activities it
thereby violated Section 8(a)(1) and (3) of the Act.
3. The 8(a)(1), (3), and (4) violations—Case
34–CA–6104
The complaint in Case 34–CA–6104 alleges that the Re-
spondent violated Section 8(a)(1), (3), and (4) of the Act
when it terminated Samuel Divine on or about April 7, 1993,
becaue he engaged in union activities and to discourage em-
ployees from so doing, and because Divine participated in
the unfair labor practice hearing before the Board in Case
34–CA–5684. The Respondent denies these allegations.
The Respondent’s purported reasons for discharging Di-
vine were that he disrupted the harmony of the work force
and continued to intimidate fellow employees, conduct for
which he had previously been suspended. Both Fitzpatrick
and Sider elaborated on these reasons by listing factors such
as Divine’s lying to William’s and other employees about
what had occurred at the prior hearing and the consequences
resulting therefrom which involved testimony given by
Fitzpatrick and Corris, his lying to Sider regarding the em-
ployees he had spoken to about this, Divine’s negative re-
marks made to Williams concerning the Respondent and
Fitzpatrick and Sider, and that Williams was the third em-
ployee to file a complaint against Divine because of his al-
legedly having threatened them.
Thus it is clear that the termination of Divine flows di-
rectly from his participation in the unfair labor practice hear-
ing and his conversations with employees about the testi-
mony at that hearing. Moreover, the discharge was also ex-
plicitly based in part on the Respondent’s previous suspen-
sion of Divine, which I found to be unlawful. With this in
mind and for the same reasons I hereinbefore found that the
General Counsel had made out a prima facie case under the
test set forth in Wright Line, supra, the burden now shifts to
the Respondent to show that it would have terminated Divine
absent the unlawful reasons. Mark Industries, supra.
A primary reason given at the trial by Sider for Divine’s
termination was that he lied about Fitzpatrick’s testimony at
the hearing to employees Williams, Chalifoux, and White.
Divine had a protected right to speak about what took place
at the unfair labor practice hearing since at the time the case
had been concluded and closed. The Board has held in a va-
riety of contexts that employees have a right to speak to
other employees about such matters. See, for example,
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
P*I*E* Nationwide, Inc., 295 NLRB 382 fn. 1 (1989); Tita-
nium Metals Corp. of America, 251 NLRB 1180 (1980);
Teamsters Local 705, 244 NLRB 794 (1979). The only way
for an employee to lose the protection of the Act for making
specific statements against an employer related to unfair
labor practice proceedings is where the statements made are
so ‘‘reckless or maliciously untrue.’’ Phoenix Newspaper,
294 NLRB 47 (1989). To hold that an employer could pun-
ish employees for speaking to other employees or publicizing
the events in an unfair labor practice case would undermine
and frustrate the very purpose of the Act. The question then
to be decided is whether the statements attributed to Divine
were so reckless or maliciously untrue as to cause the loss
of the Act’s protection.
Divine denied threatening or harassing Williams or that he
lied to her or that he had criticized the Respondent’s man-
agers in an obscene and nasty manner as alleged by Wil-
liams. I credit the testimony of Divine over that of Williams
and, in fact, over that of Fitzpatrick and Sider as well, not
only for the reasons set forth in finding his testimony credi-
ble on other issues here, but additionally because Williams’
testimony appeared at times contradictory and seemed
memorized and rehearsed. She did not come across as a
credible witness. Moreover, Williams had received a pro-
motion to the position of dispatcher on March 10, 1993,
shortly before the commencement of the initial case, al-
though she was not called as a witness for the Respondent
until after the case was reopened in September 1993. As re-
gards Sider’s testimony he exhibited instances of evasiveness
and consistently long periods of silence before answering
questions on cross-examination by counsel for the General
Counsel which had not been in evidence during his direct
testimony by the Respondent’s counsel.
As discussed hereinbefore, Fitzpatrick’s testimony at the
March hearing was so contradictory as to make unsure what
exactly occurred on April 2, 1992. Even assuming arguendo
that Divine did tell Williams and other employees that
Fitzpatrick testified that Williams had named employees who
had attended the union meeting on April 2, 1992, the evi-
dence in the record could well support such an assertion or
inference. Fitzpatrick did testify that in her April 3, 1992
memorandum she stated that on ‘‘April 2, 1992 Judy Wil-
liams advised me that she was being harassed by some peo-
ple who were going to a Union meeting at 10 a.m.’’ While
Fitzpatrick also asserted in that memorandum that Williams
had not mentioned any names that day she contradicted this
in her testimony claiming that Williams had told her that em-
ployee Maxine White was bothering her about the Union.
Subsequently she changed her testimony saying that Wil-
liams was one of three employees who might have told her
about such harassment but wasn’t sure which one had done
so. However, the evidence here is conclusive that it was Wil-
liams who had mentioned White’s name.
The record evidence shows that Williams and Divine had
been close friends. Divine had been told that he was being
suspended for having threatened four employees but the
names of his accusers had not been disclosed to him. Wil-
liams had strongly denied to Divine that she had been in-
volved as one of his accusers. At the initial hearing Divine
had read the first sentence of Fitzpatrick’s April 3, 1992
memorandum, listened to her testimony at one point asserting
that Williams had told her that Maxine White was harassing
her about the Union, heard the testimony of Lisa Scribner
and Nicole Chalifoux denying that they had told Fitzpatrick
that White had been harassing them about the Union, heard
testimony that Fitzpatrick had failed to mention Williams in
her affidavit to a Board agent, and had to be aware that al-
though Williams’ name arose as a potential player in the
events which occurred on April 2, 1992, she was not called
as a witness for the Respondent, and it is entirely reasonable
that Divine could infer that Judy Williams had informed
Fitzpatrick about the union meeting on April 2, 1992, and
named employees who had gone to the meeting. As it turns
out from the record evidence as a whole, the truth was that
Williams had informed on Maxine White additionally sup-
porting such an inference drawn by Divine as to Williams’
role in these events and the possibility that she had lied to
him. Thus, there appears no basis for finding that Divine
acted recklessly or maliciously.
From all the above, I find and conclude that when the Re-
spondent terminated Divine because of what he stated took
place at the unfair labor practice hearing it violated Section
8(a)(4) of the Act.
Moreover, another reason given by the Respondent for ter-
minating Divine was his negative remarks to Williams con-
cerning the Respondent’s loyalty to her and that of
Fitzpatrick and Sider. In reviewing the statements made by
Divine to her in his credited testimony, I also do not find
them to be ‘‘recklessly or maliciously untrue’’ as to cause
Divine to lose the protection of the Act, also enforcing a
finding of an 8(a)(4) violation by the Respondent. P*I*E Na-
tionwide, Inc., supra; Phoenix Newspapers, supra.
Further, the Respondent’s other asserted reasons for termi-
nating Divine are similarly unlawful ones, and do not con-
stitute a Wright Line defense. The Board has held that an
employee has a protected right to warn other employees
about informers in their ranks. Bakersfield Memorial Hos-
pital, 305 NLRB 741 (1991); Somerset Shirt & Pajama Co.,
232 NLRB 1103 (1977). The only exception again would be
where the statements or allegations were maliciously untrue.
Bakersfield Memorial Hospital, supra. I do not find that to
be the case here. Therefore, Divine was engaged in protected
activity when he spoke to employees about what he had
learned at the unfair labor practice hearing. Whether he was
warning other employees about Williams’ being an informer,
or confronting Williams about her conduct and arguing to her
that she was being used by the Respondent and should rely
on her friends and the Union instead, Divine was engaged
in protected activity, and his termination by the Respondent
violated Section 8(a)(3) as well. Bakersfield Memorial Hos-
pital, supra; Somerset Shirt & Pajama Co., supra. Moreover,
the Respondent’s hostility toward Divine was cumulative and
as a result of his union activities and supports a violation of
Section 8(a)(3) of the Act.
Sider listed as another factor in Divine’s discharge that he
had lied to Sider by failing to identify Nicole Chalifoux as
an additional employee with whom he had discussed what
occurred at the initial hearing. As will be discussed herein-
after, that interrogation was unlawful, and a discharge cannot
be lawful when it is based on an employee’s failure to fully
respond to an unlawful interrogation.
The record as a whole clearly establishes that the Re-
spondent’s alleged reasons for Divine’s discharge were un-
lawful ones, even assuming the Respondent believed that Di-
693HERTZ CORP.
vine had engaged in misconduct. With regard to Divine’s
suspension, the General Counsel asserted that the reasons for
the Respondent’s action in this regard were pretextual and
while there was a gnawing suspicion that this was so, I felt
that suspicion was inadequate to support such a finding and
resolved that issue on other grounds. However, as concerns
Divine’s discharge, the evidence here shows that the given
reasons for Divine’s termination were pretextual. The varying
reasons given for his discharge, wherein the Respondent indi-
cated during the investigative stage of these proceedings that
it was Fitzpatrick and Dave Almeda who had made the deci-
sion to fire Divine and the reasons therefore, but at the hear-
ing the Respondent attributed this decision to Sider based on
other reasons, provides strong evidence of pretext.
Moreover, the evidence here regarding the Respondent’s
requirement of a ‘‘formal complaint’’ from Williams before
proceeding to investigate her charges against Divine where
there is actually no rule or regulation in its disciplinary pro-
cedure which requires this, considered with the Respondent’s
suspension of Divine previously before receiving any written
‘‘formal complaint,’’ from his two accusers, Pelletier and
Connelly, and what appears to be Fitzpatrick’s attempts to
conceal Williams’ identity as an informer about employee
union activities which was obviously uncovered and exposed
by Divine, and this in connection with the Respondent’s
antiunion activities, all reinforce a finding of pretext.
From all of the above, I find and conclude that the Re-
spondent violated Section 8(a)(1), (3), and (4) of the Act
when it unlawfully terminated Samuel Divine.
I additionally find and conclude that the Respondent also
violated Section 8(a)(1) of the Act when Fitzpatrick and
Sider interrogated Divine and Nicole Chalifoux about
Divine’s statements regarding Williams’ role as an informer
disclosed at the initial hearing in Fitzpatrick’s testimony. The
questioning of Divine especially and Chalifoux extended far
beyond any purpose of ascertaining whether or not threats
were being made to employees.
V. OBJECTIONS TO THE ELECTION
The complaint and notice of hearing in Case 34–CA–5684
was issued on June 25, 1992. Pursuant to a Stipulated Elec-
tion Agreement approved by the Regional Director for Re-
gion 34 on August 14, 1992, an election by secret ballot was
conducted on September 17, 1992, in an appropriate unit
wherein the Union lost the election by a vote of 18 for and
22 against it. The Union filed timely objections to the elec-
tion on September 30, 1992, and of its four listed objections
subsequently withdrew three of them. The remaining objec-
tion to the election states:
3. Throughout the election period the employer has
stated and/or implied that the employer would ‘‘bargain
from scratch’’ if the union won, thereby threatening
employees with cancellation of existing benefits. An ex-
ample of management’s threats was the employees’
401(K) plan. Many employees were afraid of losing this
benefit and were advised that this benefit existed ‘‘only
for non-unionized Hertz shops.’’ Clearly, this threat ef-
fected the election.
In his Report On Objections dated October 27, 1992, the
Regional Director noted that the allegations in the complaint
issued on June 25, 1992, of violations of ‘‘Section 8(a)(1)
and (3) of the Act’’ was ‘‘inter alia, conduct encompassed
by Objection No. 3.’ and that the objection raised substantial
and material issues of fact, including credibility issues that
may best be resolved on the basis of record testimony at a
hearing. By Order dated November 9, 1992, Cases 34–CA–
5684 and 34–RC–1108 were consolidated for hearing. By
Order dated June 4, 1993, these cases were consolidated with
Case 34–CA–6104 for a reopened hearing.
A. The Facts
The record evidence shows that the Respondent held meet-
ings with its employees on August 10 and 11, 1992. These
meetings were held at the Sheraton Hotel in Hartford, Con-
necticut, and conducted by Irwin Pollack, manager of labor
relations, and David Almeda, employee relations manager for
the New England region, with small groups of employees
(five to eight) in attendance at each meeeting. Almeda testi-
fied that the purpose of these meetings was to clear up em-
ployee confusion at the Bradley Field facility since ‘‘there
was a lot of statements going around the location, rumors,
misinformation, a lot of things like that’’ regarding the
Union and the upcoming Board election. Almeda stated that
he and Pollack discussed the election procedure and an-
swered employee questions about union membership require-
ments in case the Union was voted in, dues payment require-
ments, etc. Pollack related that he also told employees what
their rights were under the Act and what the Respondent
could or could not lawfully say and do with regard to the
election, including that the Respondent could not threaten
employees with loss of their jobs or benefits because of their
union activities and/or support of the Union.
Pollack continued that he advised the employees that the
Respondent had collective-bargaining agreements with other
unions in other locations throughout the country and, in this
connection, stated that if the Union won the election ‘‘Every-
thing is negotiable. You could end up with more money, you
could end up with less money. You could end up with more
holidays, less holidays. Better benefits, worse benefits. It’s
based on whatever was negotiated at the time.’’
Pollack recounted that he discussed the Respondent’s
401(K) plan (income savings plan) with the employees since
some of the employees said that they were unaware of such
a plan, and issued a two-page summary of the plan in exist-
ence at the Hartford facility which indicated that the plan
‘‘applies to non-union weekly and bi-weekly salaried em-
ployees.’’ Pollack told the employees that ‘‘all organized em-
ployees do not have this benefit,’’ along with the statement
that ‘‘everything is negotiable and you could get it, you
could lose it, you could keep the same.’’ According to Pol-
lack only 11 of the 41 employees in the appropriate unit at
the time were enrolled in the 401(K) plan.
However, Almeda testified that ‘‘a pretty large percent of
the employees’’ were enrolled in the 401(K) plan. Regarding
this Almeda testified that:
[T]here was a lot of concern with the 401(K) Plan dur-
ing the discussions. A lot of them asked what happened
to their 401(K) Plan. And basically told them that,
again, during the negotiation process, nothing is—you
can lose pay or benefits, you can gain pay or benefits.
Nothing is determined or guaranteed prior to sitting
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 In truth, had the Respondent’s unlawful conduct occurred during
the critical period I would surely recommend that the election results
be set aside and a new election ordered. Of course only those viola-
tions which occurred prior to the election would be considered. Be
that as it may, unless the Board reconsiders the parameters of its
definition of the ‘‘critical period’’ with regard to violations alleged
in the complaint and not encompassed in objections to the election,
the above remains the law. See Ideal Electric Co., supra at 1277–
1278.
down to negotiate, but I also told them they should be
aware that out of 197 or so contracts that the Hertz
Corporation has presently, none of those contracts have
a 401(K) Plan.
Almeda recalled that it was also said to employees that the
401(K) plan ‘‘was certainly [a] negotiable item like every-
thing else was.’’
Moreover, this was the first time that the Respondent’s
401(K) plan was discussed by management directly with the
employees as a group and that the meetings between Pollack
and Almeda with groups of employees was generated by the
Union’s filing of its petition with the Board for an election
in the appropriate unit for the Respondent’s employees at its
Bradley Field facility. Both Pollack and Almeda denied tell-
ing employees that if the Union won the election, the Re-
spondent would ‘‘bargain from scratch’’ or that bargaining
would start ‘‘from the bottom up.’’
However, Samuel Divine testified that at the first meeting
with employees at the Sheraton Hotel in Hartford in August
1992 Pollack told the employees that ‘‘in negotiation you
could start from scratch. . . . It’s a brand new ball game.
You know, you start from scratch.’’ Divine related that Pol-
lack also said that during negotiatons, ‘‘you can get more,
you can get less, you can get the same thing,’’ depending on
how the contract is negotiated, and that ‘‘the company would
negotiate with the union,’’ but Divine could not remember
whether Pollack had used the term ‘‘in good faith’’ or not
in this connection. Divine added that the Union had advised
him that negotiations would start at the present level of
wages and benefits and go from there up, and Divine raised
this with Pollack at the meeting.
Called as a witness by the General Counsel, Maxine White
who attended the August 1992 meeting with Divine, testified
as follows:
Q. Did [Pollack] ever use the term that Hertz would
bargain from scratch?
A. There was something to that effect at one of the
meetings. I don’t remember exactly what it was.
Q. You don’t remem—something to that effect, but
not necessarily those words?
A. Not in those particular words maybe, but it was—
Q. Would negotiate all the benefits but you could get
more, you could get less, you can get the same thing?
A. Uh-huh. Yes.
White also stated that Pollack had told the employees that
the Respondent would negotiate with the Union in good
faith.
B. Analysis and Conclusions
In Zeiglers Refuse Collectors v. NLRB, 639 F.2d 1000,
1004–1005 (3d Cir. 1981), the United States Court of Ap-
peals for the Third Circuit stated:
The purpose of holding representation elections is to
provide a means whereby workers may fairly and freely
choose their bargaining representative if indeed they
want one. See NLRB v. A. J. Tower Co., [329 U.S. 324
(1946)]. A representation election should be ‘‘a labora-
tory in which an experiment may be conducted, under
conditions as nearly ideal as possible, to determine the
uninhibited desires of the employees.’’ General Shoe
Corp., 77 NLRB 124, 127 (1948). . . . The Board has
an obligation to insure that an election is held ‘‘under
such conditions as well be conducive to the sort of free
and untrammeled choice of representatives con-
templated by the Act.’’ Methodist Home v. NLRB, 596
F.2d 1173, 1183 (4th Cir. 1979). . . . Hence, extreme
care must be taken that the laboratory conditions have
not become so tainted that employees may have based
their vote not upon conviction, but upon fear or upon
any other improperly induced consideration. The Board
and the courts have emphasized that the existence of a
coercive atmosphere, regardless of how such an atmos-
phere came about, is the critical fact upon which the
Board should focus in determining whether a fair and
free election was impossible. Diamond State Poultry
Co., 107 NLRB 3, 6 (1953); Cross Baking Co. v. NLRB
453 F.2d 1346, 1348 (1st Cir. 1971).
As previously found here, the Respondent engaged in nu-
merous unfair labor practices as alleged in the complaints in
violation of Section 8(a)(1), (3), and (4) of the Act. While
these unlawful acts on the part of the Respondent were not
also alleged as objections to the election timely filed by the
Union, the law is clear that such allegations may serve as the
basis for setting aside an election even when they were not
specifically included in the Union’s election objections.
White Plains Lincoln Mercury, 288 NLRB 1133 (1988);
American Safety Equipment Corp., 234 NLRB 501 (1978).
However, to serve as a basis for setting aside an election
such conduct must have occurred between the date the peti-
tion was filed and the date that the election was held. Gold
Shield Security, 306 NLRB 20 (1992); Ideal Electric & Mfg.
Co., 134 NLRB 1275 (1962). It appears from the record that
the Union filed its representation petition in late July or early
August 1992. The election was conducted on September 17,
1992. Therefore, the Respondent’s unlawful conduct, having
been engaged in both before and subsequent to the critical
period, cannot serve as the basis for setting aside the elec-
tion.12
This leaves for consideration the remaining Objection 3.
For conduct to warrant setting aside an election, not only
must that conduct be coercive, but it must be related to the
election as to have had a probable effect on the employees’
actions at the polls. Valley Rock Products v. NLRB, 590 F.2d
300 (9th Cir. 1979). The burden of proving that an election
should be invalidated because of objectionable conduct rests
with the party filing the objections, in this case, the Union.
Flintkote Co., 260 NLRB 1247 (1982). The party challenging
the outcome of the election bears the heavy burden of ‘‘pro-
ducing evidence sufficient to mandate a result different from
that obtained through the casting of ballots.’’ NLRB v.
Krafcor Corp., 712 F.2d 1268, 1269 (8th Cir. 1983); Valley
695HERTZ CORP.
Rock Products v. NLRB, supra at 302. The Union, as the
party challenging preelection conduct, must establish that
such conduct impaired employees’ freedom of choice. NLRB
v. Enrodrive, Inc., 724 F.2d 556 (6th Cir. 1984); NLRB v.
Basic Wire Products, 516 F.2d 261 (6th Cir. 1975). Thus,
when preelection conduct is challenged on the basis that it
interfered with the election, the critical inquiry is whether
employees were able to exercise free choice. Ibid.
The Union’s Objection 3 to the election alleges that the
Respondent stated and/or implied throughout the election pe-
riod that it would ‘‘bargain from scratch’’ if the Union won
the election, thereby threatening employees with cancellation
of existing benefits. The Respondent denies this allegation.
According to the record evidence, the statement ‘‘bargain
from scratch’’ was alleged to have been made by Pollack at
the August 10, 1992 meeting with employees. Both Pollack
and Almeda denied that such a statement was made. Divine
testified that Pollack had made the statement and White’s
testimony indicates that something like that was said but not
in those exact words, more akin to the statement that the Re-
spondent and the Union would negotiate all the benefits, but
the employees could end up with more, less, or the same
thing.
While I credited Divine’s testimony on other issues con-
sidered here, there is a question in my mind as to whether
Pollack made the statement that the Respondent would ‘‘bar-
gain from scratch.’’ The above four witnesses all agreed that
Pollack did state that the parties would negotiate and the em-
ployees could get more, get less, or get the same as they
have. From such a statement White concluded that Pollack
had said that the Respondent would ‘‘bargain from scratch.’’
Divine could have also interpreted the statement as such.
Moreover, while it seemed that during cross-examination, Di-
vine had the opportunity to assert that Pollack had made the
‘‘bargain from scratch’’ remark, he did not do so until on
questioning by the Union’s representative, he was asked di-
rectly whether Divine had ‘‘ever heard management use the
phase ‘negotiate from scratch’?’’ whereupon Divine alleged
that Pollack had made such a statement.
Be that as it may, even assuming that Pollack did make
such a statement, under the circumstances present in this case
I would not find it unlawful. In this case the Respondent
consistently stated that if the Union won the election every-
thing is negotiable and the employees could end up with
more money and benefits, less money and benefits, or the
same as they presently had. Additionally, the Respondent in-
dicated that it would negotiate with the Union in good faith
as testified to by White, Pollack, and Almeda. While Divine
testified he could not recall this being said, it seemed based
on his lack of remembrance rather than that it definitely was
not said. Under similar circumstances the Board has found
that such comments in context did not indicate that the em-
ployer would unilaterally discontinue existing benefits if the
employees selected union representation, but rather that exist-
ing benefits may be lost as a result of bargaining, Histacount
Corp., 278 NLRB 681 (1986), Computer Peripherals, 215
NLRB 293 (1974), explaining ‘‘the realities of negotiations
[and] the give-and-take of bargaining,’’ La-Z-Boy, 281
NLRB 338 (1986); had not threatened not to bargain in good
faith nor that ‘‘only regressive proposals will result, Clark
Equipment Co., 278 NLRB 498 (1986); or was in answer to
a union’s claim as to gaining increased benefits for employ-
ees, Ludwig Motor Corp., 222 NLRB 635 (1976). Also see
Campbell Soup Co., 225 NLRB 222 (1976); Wagner Indus-
trial Products Co., 170 NLRB 1413 (1968).
I am aware that the Board has found in other cases that
a ‘‘bargaining from scratch’’ statement was unlawful and this
usually occurs when the statement is accompanied by serious
unfair labor practices. See, for example, Mississippi Chemi-
cal Corp., 280 NLRB 413 (1986); Belcher Towing Co., 265
NLRB 1258 (1982); Plastronics, Inc., 233 NLRB 155
(1977). And although I did find that the Respondent here
committed serious unfair labor practices in violation of the
Act, these unlawful actions occurred before and after the
‘‘critical period’’ regarding the election.
The other segment of the objection to be addressed is the
allegation that the Respondent threatened employees with
cancellation of its 401(K) plan since they were advised that
this benefit existed ‘‘only for non-unionized Hertz shops.’’
It is well settled that an employer violates Section 8(a)(1)
of the Act through a provision in, or a statement about, a
plan that suggests that coverage of employees will automati-
cally be withdrawn as soon as they become represented by
a union or that continued coverage under the plan will not
be subject to bargaining. Niagara Wires, 240 NLRB 1326
(1979), and cases cited therein. As the Board stated in
Handleman Co., 283 NLRB 451, 452 (1987):
Such plans interfere with, restrain, and coerce currently
unrepresented employees because the exclusionary
clauses automatically eliminate the benefits on selection
of a representative and do not allow for their continu-
ation pending negotiations. What is unlawful is the sug-
gestion inherent in the exclusionary language that un-
represented employees will forfeit the plan’s benefits if
they choose union representation. In other words, the
plans constitute threats to discontinue the benefits or to
refuse to bargain over continuation of the benefits. Such
threats violate the Act. Como Plastics, 143 NLRB 151
(1963).
On the record in this case, I find and conclude that the Re-
spondent violated Section 8(a)(1) of the Act when it main-
tained a benefit plan excluding employees who join a union,
choose union representation, or are members of a bargaining
unit, or are covered by a bargaining agreement. Lynn-Ed-
wards Corp., 290 NLRB 202 (1988); Lynn-Edwards Corp.,
282 NLRB 52 (1986); Niagara Wires, supra; Melville Con-
fections, 142 NLRB 1334 (1963), enfd. 327 F.2d 689 (7th
Cir. 1964), cert. denied 377 U.S. 933 (1964). While the com-
plaints herein contain no allegation to this affect, the objec-
tion to the election raised the issue of the unlawfulness of
the Respondent’s actions in this regard and the issue was
fully litigated at the hearing. Soltech, Inc., 306 NLRB 269
(1992).
The Respondent argues that its statements regarding the
401(K) plan, in both its two-page summary distribution to
employees and those made by Pollack and Almeda at meet-
ings with employees, were lawful since the employees were
specifically told that the 401(K) plan was a negotiable item,
that employees may gain, lose, or get the same in pay and
benefits as a result of negotiations, and that the Respondent
would bargain with the Union in good faith. The Respondent
also asserts that no changes were made in employee benefits
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962).
18 Enola Super Thrift, 233 NLRB 409 (1977).
during the pendency of negotiations and that the employees
do not automatically lose a benefit if they vote for the
Union. I do not agree.
Initially, the exclusionary language regarding eligibility in
the Respondent’s summary of its 401(K) plan distributed to
employees at the August 1992 meetings contained no indica-
tion that coverage for represented employees was subject to
negotiations or that the Respondent would negotiate this in
good faith with the Union. Contrast Handleman Co., supra
at 452, in which the Board found that the employer’s plan
did not cut off the benefit prior to negotiations, but con-
templated the continuation of benefits during the negotiations
where such could be inferred from the langauge in the plan.
Also see Sarah Newman Nursing Home, 270 NLRB 663
(1984); Rangaire Corp., 157 NLRB 682 (1966).
Moreover, while it is true that both Pollack and Almeda
did tell employees that those represented by a union would
not have the 401(K) plan benefit along with the statement
that all pay and benefits were negotiable, and that the Re-
spondent would bargain with the Union in good faith, those
statements were followed by the admonition that employees
should ‘‘be aware that out of 197 or so contracts that the
Hertz Corporation has presently, none of those contracts have
a 401(K) Plan.’’ As the Supreme Court in NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969), reminded, ‘‘Also
recognized must be the economically dependent relationship
of the employees to the employer and the necessary tendency
of the former, because of that relationship, to pick up in-
tended implications of the latter that might be more readily
dismissed by a more disinterested ear. Therefore, the em-
ployees, being told that the 401(K) plan was not available to
represented employees and not being told that those already
in the plan or any other employee eligible would not lose
this benefit during negotiations, with the Respondent addi-
tionally indicating that no union had ever been successful in
negotiating such a plan for its represented employees with
the Respondent, could reasonably and strongly assume that
if they voted the Union in, either coverage of employees
would automatically be withdrawn as soon as they voted for
the Union or that negotiations for continued coverage under
the plan would be futile and unsuccessful.
The final question to be resolved is whether this unlawful
action by the Respondent is sufficient to warrant setting
aside the election.
In Clark Equipment Co., 278 NLRB 498, 505 (1986), the
Board held that:
[I]t is the Board’s usual policy to direct a new election
whenever an unfair labor practice occurs during the
critical period since ‘‘[c]onduct violative of Section
8(a)(1) is, a fortiori, conduct which interferes with the
exercise of a free and untrammeled choice in an elec-
tion.17 However, the Board has departed from the pol-
icy in cases where it is virtually impossible to conclude
that the misconduct could have affected the election re-
sults. In determining whether misconduct could have af-
fected the results of the election, we have considered
‘‘the number of violations, their severity, the extent of
discrimination, the size of the unit, and other relevant
factors.18
The Respondent’s unlawful conduct found above occurred
during the critical period between the filing of the petition
in Case 34–RC–1108 in or about late July or early August
1992 and the Board-conducted election on September 17,
1992. The Respondent’s unlawful acts involved most if not
all of the Respondent’s employees in the appropriate unit
over a 2-day period. The two-page summary handout of the
401(K) plan might even be said to have a continuing effect
on employees up to the election. Moreover, the appropriate
unit of employees was 41, a comparatively small number,
and the vote was a close one, 18 for and 22 against the
Union. Additionally, the Respondent’s unlawful conduct can-
not be said to be de minimus. Almeda testified that there was
a lot of concern among employees about the 401(K) plan and
what would happen should the employees obtain union rep-
resentation, and the unlawful statements were made by two
of the Respondent’s top-level managers from the Company’s
headquarters. Nor under the circumstances present in this
case, do I believe it can be said that the unlawful acts oc-
curred at so remote a time as to have little or no effect on
employee freedom of choice or that the Union’s denial that
the 401(K) plan could never be negotiated into a collective-
bargaining agreement dissipates the coercive atmosphere cre-
ated by the Respondent concerning the election.
Since the standard for interference necessary to set aside
a Board-conducted election is substantial interference with
the ‘‘laboratory conditions,’’ I recommend that the Board set
aside the election in Case 34–RC–1108 and that the Regional
Director for Region 34 direct the holding of a second elec-
tion at such time as he deems appropriate. Dal-Tex Optical
Co., supra.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent, set forth in section IV,
above, occurring in connection with the Respondent’s oper-
ations described in section I, above, have a close and inti-
mate 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.
VII. THE REMEDY
Having found that the Respondent had engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully suspended
and then terminated Samuel Divine, the Respondent shall be
ordered to offer him immediate reinstatement to his former
position, discharging if necessary any replacement hired
since his termination, and that he be made whole for any loss
of earnings or other benefits by reason of the discrimination
against him in accordance with the Board’s decision in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest com-
puted as in New Horizons for the Retarded, 283 NLRB 1173
(1987). See also Florida Steel Corp., 231 NLRB 651 (1977),
and Isis Plumbing Co., 138 NLRB 716 (1962).
Having found that the Respondent violated Section 8(a)(1)
of the Act, the Respondent shall be ordered to amend its
401(K) plan eligibility provision and any existing handbook
697HERTZ CORP.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
or summary plan documents so as to eliminate therefrom any
language which indicates that weekly and biweekly salaried
employees who are represented by a union automatically will
be excluded from the Respondent’s 401(K) plan.
Because of the nature of the unfair labor practices here
found, and in order to make effective the interdependent
guarantees of Section 7 of the Act, I recommend that the Re-
spondent be ordered to refrain from in any like or related
manner abridging any of the rights guaranteed employees by
Section 7 of the Act. The Respondent should also be re-
quired to post the customary notice.
CONCLUSIONS OF LAW
l. The Respondent, the Hertz Corporation, is now and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, United Automobile, Aerospace, Agricultural
Implement Workers of America, UAW is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time counter sales rep-
resentatives, vehicle service attendants, mechanics and
bus drivers employed by the Employer at its Bradley
Airport, Windsor Locks, Connecticut facility; but ex-
cluding all office clericals, transporters, and other em-
ployees, and all guards, professional employees and su-
pervisors as defined in the Act.
4. The Respondent, in violation of Section 8(a)(1) of the
Act, has interfered with, restrained, and coerced its employ-
ees in the exercise of the rights guaranteed them by Section
7 of the Act by interrogating its employees concerning their
union activities and the union activities of other employees,
by creating the impression that it was keeping under surveil-
lance the union activities of its employees, by threatening its
employees with layoffs and other loss of employment and
with the loss of benefits, including health benefits and its
401(K) plan, if they engaged in union activities or solicited
the Union to represent them in collective bargaining or be-
come represented by a union, by informing its employees
that it would be futile for them to select the Union as their
bargaining representative, by soliciting employee complaints
and grievances promising its employees’ increased benefits
and improved terms and conditions of employment, by
discrim- inatorily enforcing a rule prohibiting noncompany
business during working time and/or in working areas only
as against employee union activity and promulgating and en-
forcing a rule prohibiting employees from engaging in union
activities during working hours, by informing an employee
that he was being disciplined because of his union activities,
and by promising benefits to and no layoffs of employees if
they refrain from engaging in union activities.
5. The Respondent has violated Section 8(a)(1) of the Act
by maintaining in its 401(K) plan eligibility provision and
those portions of any employee handbook and summary plan
documents, language specifying that the Respondent’s
401(K) plan excludes automatically union represented weekly
and biweekly salaried employees.
6. The Respondent engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act by discrim-
inatorily suspending employee Samuel Divine because he as-
sisted the Union, and engaged in concerted activities, and to
discourage employees from engaging in these activities.
7. The Respondent engaged in unfair labor practices in
violation of Section 8(a)(1), (3), and (4) of the Act by termi-
nating employee Samuel Divine because he testified and par-
ticipated in the unfair labor practice hearing before the Board
in Case 34–CA–5684, thereby interfering with, restraining,
and coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act, discriminating in regard
to hire or tenure or terms or conditions of employment of its
employees thus discouraging membership in a labor organi-
zation, and discriminating against employees for filing
charges or giving testimony under the Act.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
9. The Respondent has not otherwise violated the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, the Hertz Corporation, Windsor Locks,
Connecticut, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating its employees concerning their union ac-
tivities and the union activities of other employees.
(b) Creating the impression that it was keeping under sur-
veillance the union activities of its employees.
(c) Threatening employees with layoffs and other loss of
employment and with loss of benefits including health bene-
fits and its 401(K) plan if they engaged in union activities,
solicited the Union to represent them in collective bargain-
ing, or become represented by a union.
(d) Informing its employees that it would be futile for
them to select the Union as their bargaining representative.
(e) Soliciting grievances from its employees and promising
increased benefits and improved terms and conditions of em-
ployment.
(f) Discriminatorily enforcing a rule prohibiting noncom-
pany business during working time and/or in working areas.
(g) Promulgating and enforcing a rule prohibiting employ-
ees from engaging in union activities during working hours.
(h) Informing employees that they are being disciplined
because of their union activities.
(i) Promising benefits and no layoffs if the employees re-
frain from engaging in union activities.
(j) Suspending or otherwise disciplining employees be-
cause they assisted the Union and engaged in concerted ac-
tivities and to discourage employees from engaging in these
activities.
(k) Discharging or otherwise discriminating against em-
ployees in order to discourage union activity or employee
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
participation in proceedings conducted by the National Labor
Relations Board.
(l) Maintaining in its 401(K) plan and those portions of
any employee handbook and summary plan documents lan-
guage specifying that the Respondent’s 401(K) plan excludes
automatically union-represented weekly and biweekly sala-
ried employees.
(m) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer employee Samuel Divine immediate and full re-
instatement to his former job or, if his position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings and
other benefits suffered by him as a result of the discrimina-
tion against him in the manner set forth in the remedy sec-
tion of this decision, and expunge from the Respondent’s
personnel records any references to his suspension and termi-
nation and notify him, in writing, that this has been done and
that evidence thereof will not be used as a basis for any fu-
ture personnel action against him.
(b) Amend its 401(K) plan and any existing employee
handbook and summary plan documents so as to eliminate
therefrom any language that indicates that union-represented
weekly and biweekly salaried employees will be automati-
cally excluded from the Respondent’s 40lK plan.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order and
further to ensure that the terms of this Order have been fully
complied with.
(d) Post at its Bradley Field Airport in Windsor Locks,
Connecticut, copies of the attached notice marked ‘‘Appen-
dix.’’14 Copies of the notice, on forms provided by the Re-
gional Director for Region 34, after being signed by the Re-
spondent’s authorized representative, 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. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the election in Case
34–RC–1108 be set aside, and that this case be severed and
remanded to the Regional Director for Region 34 for the pur-
pose of conducting a new election at such time as he deems
the circumstances appropriate.