Hertz Corp.

National Labor Relations Board - Board Decisions

Oct 31, 1995

319 N.L.R.B. 597 (N.L.R.B. 1995)

597
319 NLRB No. 78
HERTZ CORP.
1 The General Counsel, the Charging Party, and the Respondent
have excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings. 2 All dates are in 1993 unless otherwise noted.
The Hertz Corporation and Automotive, Petroleum,
Cylinder and Bottled Gas, Chemical Drivers,
Helpers and Allied Workers and Public Trans-
portation Employees, Local Union 922, Inter-
national Brotherhood of Teamsters, AFL–CIO.
Case 5–CA–23956
October 31, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On October 13, 1994, Administrative Law Judge
Stephen J. Gross issued the attached decision. The
General Counsel and the Charging Party each filed ex-
ceptions and a supporting brief. The Respondent filed
a cross-exception and answers to the General Coun-
sel’s and the Charging Party’s exceptions and support-
ing briefs. The Charging Party filed an answering brief
to the Respondent’s cross-exception.
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 briefs, and has
decided to affirm the judge’s rulings, findings,1 and
conclusions only to the extent consistent with this De-
cision and Order.
The pertinent facts, as more fully described by the
judge, are as follows. The Respondent is engaged in
the rental of motor vehicles. The Union represents
many of the Respondent’s employees at four of the
Respondent’s facilities in the Washington, D.C.-Balti-
more metropolitan area: Dulles International Airport,
Washington National Airport, ‘‘Washington Metro’’
(the downtown Washington, D.C. facility), and its pool
office in Alexandria, Virginia. The Union’s collective-
bargaining agreement with the Respondent designates
it as the exclusive bargaining agent ‘‘for all Rental
Representatives, Office Clerical, Courtesy Bus Drivers,
Shuttlers, and all Garage Employees’’ at these four fa-
cilities.
Article XXV of this collective-bargaining agreement,
entitled ‘‘Non-Discrimination,’’ provides:
The Employer and the Union agree that neither
will discriminate either directly or indirectly, nor
will they permit any of their agents, members or
representatives to discriminate either directly or
indirectly against any employee by reason of race,
creed, color, age, sex, national origin, being
handicapped or membership or activity in the
Union.
Three times a year, as required by a provision in the
collective-bargaining agreement, the Respondent sends
the Union a list of bargaining unit employees by posi-
tion. Each list, which states the name and date of hire
for each employee, ranks the employees by seniority.
When the Union’s president, Eddie Kornegay, re-
ceived one of these sets of lists in the autumn of 1992,
he became concerned about the list regarding the vehi-
cle service attendants (also called ‘‘garagemen’’). This
list showed that in 1992 the Respondent had hired as
vehicle service attendants persons with the surnames of
Phung, Ayubi, Mangialai, Chhun, Riaz, Telila, Baig,
and Ashraf. Kornegay testified that from the list it ap-
peared that all, or almost all, of the recently hired em-
ployees for this classification appeared to be ‘‘foreign
nationals.’’ Kornegay explained that what he meant by
this comment was that the names were not ‘‘typically
American.’’
Kornegay further explained that the underlying basis
for his concern about this list was that it raised the
possibility that the Respondent might deliberately be
avoiding the hiring of African-Americans. Kornegay
knew that there was a large pool of unemployed un-
skilled or semiskilled young African-American men
living in Washington, D.C., whom he believed would
be interested in being hired as vehicle service attend-
ants. Yet, the list of persons the Respondent had hired
for the service attendant position in 1992 raised a
question to Kornegay as to whether any of the new
hires were African-American.
At about the same time as Kornegay received this
list, some members of the bargaining unit telephoned
him to report that it ‘‘appeared . . . the only persons
that were being hired were foreign nationals.’’ In addi-
tion, about April 1993, Kornegay, in his weekly visits
to the various facilities of the Respondent, observed
that the Respondent seemed to be employing a greater
number of employees who appeared to him to be for-
eign.
It is undisputed that at least twice, in late 1992 or
early 1993 and then in February or March 1993,
Kornegay orally requested from the Respondent infor-
mation about persons who had applied for bargaining
unit positions, and that the Respondent did not provide
the Union with any of the requested information.
The Union subsequently sent three letters to the Re-
spondent requesting information regarding applicants.
First, on April 30, 1993,2 Kornegay sent a letter to Mi-
chael Kovalcik, the manager of the Respondent’s Balti-
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598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 According to the credited testimony, this was the first time the
Union specifically asked the Respondent for this information on unit
employees.
4 NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
5 Barnard Engineering Co., 282 NLRB 617, 619 (1987); and Le-
land Stanford Junior University, 262 NLRB 136, 139 (1982), enfd.
715 F.2d 473 (9th Cir. 1983).
6 Star Tribune, 295 NLRB 543, 549 (1989); East Dayton Tool &
Die Co., 239 NLRB 141, 142 (1978). NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967).
more-Washington pool of automobiles for rent. This
letter read:
As a follow-up to the Union’s previous request,
the Union is again requesting a list of all appli-
cants for employment in the Washington Metro
area who, if employed, would have been covered
by the Labor Agreement between the Hertz Cor-
poration and Local 922 for the period March 1990
to present. Such list to the extent it can be deter-
mined, should distinguish the applicant by race,
National origin, and sex gender.
As I explained earlier, this information is need-
ed for the Union to assure that we are in compli-
ance with Federal and State law and to assure that
the provision referencing Non-Discrimination of
the labor Agreement is being fully complied
with.3
In a May 5 letter, Kovalcik responded to Kornegay:
Pursuant to your letter of April 30th, and your
request for employment information dating back
to March of 1990, as you were informed in
March, we do not feel that we are required to pro-
vide you with that information.
Kornegay wrote back that Kovalcik’s letter was ‘‘to-
tally unacceptable.’’ On June 9, 1993, the Union’s at-
torney sent a letter to Kovalcik which stated:
As Mr. Kornegay has explained, the Union wants
this information to determine whether the Com-
pany is in compliance with the collective-bargain-
ing agreement and relevant law.
By this letter, I renew Mr. Kornegay’s request
and further ask that, in addition to the information
already requested for each applicant, you also in-
dicate (1) the date on which the applicant applied
for employment, (2) the applicant’s color, (3)
whether the applicant was hired, and (4) if the ap-
plicant was hired, the date on which he or she
was hired.
In a July 9 letter the Respondent rejected the
Union’s request, stating:
[A] showing must be made by the Union as to the
relevancy of its request for information. Certainly,
the mere assertion by the Union that the informa-
tion is needed to determine whether the Company
is in compliance with the Collective-Bargaining
Agreement does not automatically trigger entitle-
ment to applicant equal employment data.
. . . .
IBT Local 922 has not alleged that Hertz has en-
gaged in discriminatory hiring practices. In fact,
the Union has not alleged any breach of the col-
lective-bargaining agreement. If that is not the
case and you wish to correct the record in that re-
gard, I would appreciate hearing from you. [Em-
phasis in the original.]
In a final letter dated August 6 the Union’s attorney
replied:
Local 922 is requesting the information because
it is investigating allegations that Hertz may have
discriminated against certain protected classes of
applicants in making hiring decisions for positions
under the Agreement.
The judge dismissed the complaint, finding that the
Union did not meet its burden of demonstrating that
the requested information regarding applicants for unit
positions was relevant to the Union’s function as col-
lective-bargaining representative. Although he found
that the Union demonstrated that it had a rational basis
for requesting the information sought with regard to
the applicants for service vehicle attendant positions,
he found that the Respondent was under no obligation
to provide the requested information since, until
Kornegay testified at the hearing, the Union never
communicated to the Respondent the facts underlying
its belief that the Respondent might be discriminating
in the hiring of vehicle service attendants. The judge
further found that, with regard to the requested infor-
mation about applications for positions other than vehi-
cle service attendants, the General Counsel failed to
show that the Union had a rational basis for believing
that the Respondent was acting discriminatorily in fill-
ing those positions.
The General Counsel and the Charging Party except
to the judge’s findings, contending that the Respondent
was obligated to furnish the requested information to
the Union. For the reasons set forth below, we find
merit in these exceptions.
It is well settled that an employer, on request, must
provide a union with information that is relevant to its
carrying out its statutory duties and responsibilities in
representing employees.4 This duty to provide informa-
tion includes information relevant to contract adminis-
tration and negotiations.5 Further, the Board has held
that requested information concerning applicants for
union-represented positions is necessary and relevant
to a union’s performance of its bargaining obligation
with respect to eliminating discriminatory employment
practices, including the hiring process.6
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599HERTZ CORP.
7 Reiss Viking, 312 NLRB 622, 625 (1993); Duquesne Light Co.,
306 NLRB 1042 (1992).
8 Leland Stanford Junior University, supra.
9 San Diego Newspaper Guild Local 95 v. NLRB, 548 F.2d 863,
868–869 (9th Cir. 1977).
10 Reiss Viking, supra; Children’s Hospital of San Francisco, 312
NLRB 920, 930 (1993); and Pfizer, Inc., 268 NLRB 916, 918
(1984), enfd. 763 F.2d 887 (7th Cir. 1985).
11 Reiss Viking, supra, and Island Creek Coal Co., 292 NLRB 480,
487 (1989), enfd. mem. 899 F.2d 1222 (6th Cir. 1990).
12 Star Tribune, supra; East Dayton Tool & Die Co., supra.
13 See East Dayton Tool & Die Co., supra.
14 Ibid.
Further, although a union bears the burden of estab-
lishing the relevance of requested information pertain-
ing to nonunit individuals,7 it is well settled that the
union’s burden of establishing the relevance of such
information ‘‘is not exceptionally heavy,’’8 and is sat-
isfied by ‘‘some initial but not overwhelming dem-
onstration by the union.’’9 In this regard, the Board
uses a broad, discovery-type standard in determining
relevance in information requests, including those for
which a special demonstration of relevance is needed,
and potential or probable relevance is sufficient to give
rise to an employer’s obligation to provide informa-
tion.10 Finally, in assessing the relevance of the infor-
mation, the Board does not pass on the merits of a
union’s claim that the employer breached the collec-
tive-bargaining agreement. Thus, the union need not
demonstrate that the contract has been violated in order
to obtain the desired information.11
Applying these principles, we find, contrary to the
judge, that the Union established that the requested in-
formation was relevant to the Union’s function as col-
lective-bargaining representative.
From its first letter to the Respondent dated April
30, 1993, the Union stated that it wanted the requested
information ‘‘to assure that we are in compliance with
Federal and State law and to assure that the provision
referencing Non-Discrimination is being fully complied
with.’’ In its June 9 letter to the Respondent, the
Union repeated that it ‘‘wants this information to de-
termine whether the Company is in compliance with
the collective-bargaining agreement and relevant law.’’
Further, in its August 6 response to the Respondent’s
July 9 letter in which the Respondent refused to pro-
vide the requested information because the Union ‘‘has
not alleged that Hertz has engaged in discriminatory
hiring practices . . . [or] any breach of the collective-
bargaining agreement,’’ the Union explained it was re-
questing the information because it ‘‘is investigating
allegations that Hertz may have discriminated against
certain protected classes of applicants in making hiring
decisions for positions under the Agreement.’’
By these letters, the Union demonstrated a sufficient
basis for its information request, i.e., that, as the col-
lective-bargaining representative charged with ensuring
that the collective-bargaining agreement was being
complied with, it was investigating allegations of dis-
crimination by the Respondent in its hiring decisions.
As discussed above, concerns by a union about pos-
sible discrimination in the workplace, including in the
hiring process, are relevant to the union’s representa-
tive function.12 In fact, as evidenced by the parties’ in-
clusion of a nondiscrimination clause in the collective-
bargaining agreement, the parties considered possible
discriminatory hiring practices as an appropriate sub-
ject for bargaining.13 The Board has further found that
a union’s expressed concern, such as the Union made
here in its April 30 letter, that it not be required to de-
fend against a charge of unlawful discrimination based
on alleged acquiescence in an employer’s hiring proc-
ess is not inconsistent with the union’s representative
function.14 We, therefore, find that the Union has ade-
quately met its burden of showing its information re-
quest was relevant to its duties as a collective-bargain-
ing representative.
Further, unlike the judge, we find that these letters
were sufficient to put the Respondent on notice that
the Union was requesting the information in order to
fulfill its representative functions. The Union by its
three letters advised the Respondent that the purpose of
its information request was its investigation of allega-
tions concerning whether the Respondent was discrimi-
nating in hiring for unit positions in violation of the
nondiscrimination clause of the collective-bargaining
agreement. Under these circumstances, and in light of
the fact that the Respondent was a party to this collec-
tive-bargaining agreement, we find that the Union pro-
vided the Respondent with an adequate basis of know-
ing that the information request was related to the
Union’s collective-bargaining duties.
Finally, we disagree with the judge insofar as he
finds that the Union established a rational basis for re-
questing information only concerning possible dis-
crimination based on race and national origin as to ap-
plicants for vehicle service attendant positions. Rather,
based on Kornegay’s examination of the list of vehicle
service attendants, the contemporaneous calls he re-
ceived from employees regarding new hires, and his
subsequent visits to the Respondent’s facilities, as well
as the nondiscrimination clause in the collective-bar-
gaining agreement, we find that the Union had an ade-
quate basis for seeking information relevant to an in-
vestigation of all possible discriminatory hiring prac-
tices in all unit classifications.
Thus, it is not necessary, as the judge seems to sug-
gest, that the Union demonstrate actual instances of
discrimination based on gender, race, and national ori-
gin, directed against employees from each of the unit
job classifications before the Respondent must supply
the requested information. As the Board has elsewhere
noted, if, in instances such as these, a union had suffi-
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600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Reiss Viking, supra at 626, quoting Doubarn Sheet Metal, 243
NLRB 821, 824 (1979).
16 See Reiss Viking, supra.
17 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.’’
cient information to prove contractual violations, it
would not need to request information from the em-
ployer.15 As noted above, we are not passing on the
merits of the Union’s concerns about possible discrimi-
nation by the Respondent in hiring—an issue which
has not been litigated. We are only passing on the
Union’s entitlement, under the liberal discovery-type
standard that applies here, to the information it
needs—and which the Union has shown is relevant to
its representative function—to make an informed eval-
uation of what action, if any, it should take on this
matter to responsibly fulfill this representative func-
tion.16
For all these reasons, we find that the Union’s infor-
mation request concerned relevant and necessary infor-
mation and that the Respondent violated Section
8(a)(5) and (1) by failing to provide the requested in-
formation.
ORDER
The National Labor Relations Board orders that the
Respondent, The Hertz Corporation, Washington, D.C.,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Automotive, Petroleum,
Cylinder and Bottled Gas, Chemical Drivers, Helpers
and Allied Workers and Public Transportation Employ-
ees, Local Union 922, International Brotherhood of
Teamsters, AFL–CIO as the exclusive representative of
the Respondent’s employees in the appropriate unit de-
scribed below, by refusing to furnish the Union the in-
formation it requested in letters dated April 30, May
5, and June 9, 1993. The appropriate unit is:
All Rental Representatives, Reservationists, Office
Clerical force, Courtesy Bus Drivers, Shuttlers,
and all Garage Attendants, and Combination
Workers, (greasers, checkers, tire persons), em-
ployed by the Respondent in its Car Rental Divi-
sion Stations, in metropolitan Washington, D.C.
area, but shall not include Shop Forepersons, Su-
pervisory, Secretary to the City Manager and all
employees with the authority to hire, promote,
discharge, discipline or otherwise effect changes
in the status of employees or effectively rec-
ommend such action.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, furnish the above-named Union with
the information it requested in letters dated April 30,
May 5, and June 9, 1993.
(b) Post at its Washington, D.C. facility copies of
the attached notice marked ‘‘Appendix.’’17 Copies of
the notice, on forms provided by the Regional Director
for Region 5, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 refuse to bargain collectively with
Automotive, Petroleum, Cylinder and Bottled Gas,
Chemical Drivers, Helpers and Allied Workers and
Public Transportation Employees, Local Union 922,
International Brotherhood of Teamsters, AFL–CIO by
refusing to furnish information that it requested in let-
ters dated April 30, May 5, and June 9, 1993. The unit
is:
All Rental Representatives, Reservationists, Office
Clerical force, Courtesy Bus Drivers, Shuttlers,
and all Garage Attendants, and Combination
Workers, (greasers, checkers, tire persons), em-
ployed by the Employer in its Car Rental Division
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601HERTZ CORP.
1 The Union filed its unfair labor practice charge on October 6,
1993. The complaint issued on November 19, 1993. I held the hear-
ing in this matter on June 30, 1994, in Rosslyn, Virginia. The Gen-
eral Counsel, Hertz, and the Union have filed briefs. Hertz admits
that it is an employer engaged in commerce within the meaning of
Sec. 2(2), (6), and (7) of the Act, that Local 922 is a labor organiza-
tion within the meaning of Sec. 2(5) of the Act, and that the Na-
tional Labor Relations Board (the Board) has jurisdiction in this mat-
ter.
2 The Hertz-Union collective-bargaining agreement provides:
Section 1. The Union shall be the exclusive bargaining agent
. . . for all Rental Representatives, Office Clerical, Courtesy
Bus Drivers, Shuttlers, and all Garage Employees employed by
the Employer in its Car Rental Division Stations, in metropolitan
Washington, D.C. area, except those listed in Section 2 . . . .
Section 2. It is mutually agreed that the term ‘‘employee’’ for
the purposes of this Agreement shall include all rental represent-
atives, reservationists, telephone operators, office clerical force,
courtesy bus drivers, shuttlers, and all garage attendants, com-
bination workers (greasers, checkers, tire persons), but shall not
include Shop Forepersons, Supervisory, Secretary to the City
Manager and all employees with the authority to hire, promote,
discharge, discipline or otherwise effect changes in the status of
employees or effectively recommend such action.
Stations, in metropolitan Washington, D.C. area,
but shall not include Shop Forepersons, Super-
visory, Secretary to the City Manager and all em-
ployees with the authority to hire, promote, dis-
charge, discipline or otherwise effect changes in
the status of employees or effectively recommend
such action.
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, on request, furnish the Union with the in-
formation it requested in letters dated April 30, May
5, and June 9, 1993.
THE HERTZ CORPORATION
Steven L. Sokolow, Esq., for the General Counsel.
Frank B. Shuster, Esq. (Constangy, Brooks & Smith), of At-
lanta, Georgia, for the Respondent.
Patrick J. Szymanski, Esq. (Baptiste & Wilder), of Washing-
ton, D.C., for the Charging Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. At issue is
whether the Respondent, The Hertz Corporation, violated
Section 8(a)(5) and (1) of the National Labor Relations Act
(the Act), by refusing to provide information requested by
the Charging Party, Teamsters Local 922 (the Union).1
I. THE UNION’S ORAL REQUESTS FOR INFORMATION
The Union represents many of the employees employed by
Hertz at its facilities in the Washington, D.C. area.2 Edward
Kornegay is Local 922’s president and business manager. It
is undisputed that at least twice, in late 1992 or early 1993
and then in February or March 1993 Kornegay made oral re-
quests of Hertz officials for information about persons who
had applied for bargaining unit positions. What is disputed
is precisely what information Kornegay asked for and, in
particular, what reason he gave for wanting the information.
I am first going to summarize Kornegay’s version and then
that of the Hertz officials with whom Kornegay talked.
A. Kornegay’s Version
Three times a year Hertz sends lists of bargaining unit em-
ployees to the Union—that is, listings of the names and dates
of hire of the employees represented by the Union. Each
kind of job (e.g., vehicle service attendant, courtesy bus-
driver, car rental representative) is separately listed. And
each list ranks the employees by seniority.
Kornegay received one such set of lists in the autumn of
1992. He became troubled, he testified, by the list covering
vehicle service attendants. (Vehicle service attendants—also
sometimes called garagemen—are the employees who ready
cars for rental by fueling the cars, cleaning them, and the
like. They do not handle repair work of any significant sort.)
What troubled him, Kornegay said, was that, in light of their
last names, all, or almost all, of the recently hired employees
appeared to be ‘‘foreign nationals.’’ What Kornegay was re-
ferring to was that the list showed that the only vehicle serv-
ice attendants hired by Hertz in 1992 were the following
(listed in order of hire): Phung, Ayubi, Mangialai, Chhun,
Riaz, Telila, Baig, and Ashraf.
When Kornegay was asked what he meant by ‘‘foreign na-
tional,’’ he said that he meant that the names were not typi-
cally American. He testified that he did not mean that the
individuals with those names were not American citizens or
even that they necessarily were born abroad.
What bothered him about the hiring of all these ‘‘foreign
nationals,’’ Kornegay continued, was that it raised the possi-
bility that Hertz might be deliberately avoiding hiring Afro-
Americans. The way Kornegay came to that thought is this.
Kornegay knew that there is a large pool of unemployed un-
skilled or semiskilled young Afro-American men living in
Washington, D.C. Openings for the position of vehicle serv-
ice attendant positions, particularly at Washington National
Airport, ought to have attracted many such individuals. (In-
deed, as Kornegay knew, a large proportion of the persons
employed by Hertz as vehicle service attendants in the Wash-
ington, D.C. area are Afro-Americans.) Yet it was unlikely,
looking at the names of the vehicle service attendants whom
Hertz hired in 1992, that any were Afro-American.
About the same time that Kornegay began to concern him-
self with the possibility that Hertz was discriminating in hir-
ing, Kornegay testified, he received some telephone calls
from members of the bargaining unit who told him that it
‘‘appeared to be that the only persons that were being hired
were foreign nationals.’’ (On cross-examination Kornegay
was asked for the names of the employees who telephoned
him. He testified that he did not remember who they were.
I credit his testimony about receiving such calls. I do not
credit his claim that he did not remember who made them.)
Kornegay testified that he visits the various Hertz facilities
at least once a week. Notwithstanding those telephone calls
and notwithstanding what Kornegay noticed about the senior-
ity lists, he did not conduct any on-the-spot investigations
into the makeup of the bargaining unit. (Sometime later, ap-
parently about April 1993, Kornegay noticed that Hertz
seemed to be employing a greater number of persons who
looked to Kornegay to be foreign.)
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602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Presumably ‘‘pool’’ refers to Hertz’ pool of automobiles for rent.
The facilities making up Hertz’ Baltimore-Washington pool include
the Hertz facilities at Dulles International Airport, Washington Na-
tional Airport, Baltimore-Washington International Airport (BWI),
‘‘Washington Metro’’ (the downtown Washington, D.C. facility),
and the pool office. The Union does not represent the BWI employ-
ees.
4 While Hertz asks applicants to include racial and national origin
information on the application forms that they fill out, Hertz subse-
quently removes that information from the forms.
In an earlier paragraph I listed the names of the vehicle
service attendants whom Hertz hired in 1992. As is about to
be discussed, in the information requests at issue the Union
did not ask solely about applicants for vehicle service attend-
ant positions. Accordingly I list here (in order of hiring)
what the record tells us of the employees hired in 1992 into
other bargaining unit classifications.
Rental Representatives Courtesy Bus Drivers
Adawi, M. Stewart, W.
Towne, J. Smith. W.
Mohammed, A. Dobbins, K.
Shammir, I. Rusnak, R.
Bhaskar, A.
Turning first to the rental representatives, Kornegay, I sup-
pose, could reasonably assume that Adawi, Shammir, and
Bhaskar are unlikely to be Afro-American. On the other hand
Towne, Kornegay agreed, is a classically ‘‘American’’ name,
so that it would be no surprise if its owner was Afro-Amer-
ican. And Mohammed, as Kornegay testified, might well be
the name of an Afro-American. As for the courtesy bus-
drivers, Kornegay certainly had no basis, just considering the
names of the newcomers, to conclude that Hertz might be
discriminating against Afro-Americans when filling busdriver
positions.
The General Counsel did not seek to introduce into the
record seniority lists pertaining to other bargaining unit clas-
sifications, and I will proceed on the assumption that no sig-
nificant number of persons hired into those other classifica-
tions during 1992 (if there were any) had ‘‘foreign’’ sound-
ing names.
Kornegay had been scheduled to meet at the end of 1992
or in early 1993 with the manager of Hertz’ Baltimore-Wash-
ington ‘‘pool,’’ Michael Kovalcik, concerning a grievance, in
Kovalcik’s office.3 According to Kornegay, at that meeting
he complained to Kovalcik that, having looked at the senior-
ity list, he was concerned about Hertz hiring only foreign na-
tionals. Kornegay asked to see the applications of everyone
who had applied for bargaining unit jobs during the period
in question. Kornegay testified that he wanted the applica-
tions ‘‘because I wanted to see how many folk who . . . ap-
peared to be of Afro-American descent had applied for jobs
and not gotten jobs.’’ (Kornegay did not testify that he ex-
plained this reasoning to Kovalcik. As for why Kornegay
chose to ask for the applications of job applicants—as op-
posed to, say, a list of applicants showing race and national
origin, that is unclear.4) As touched on earlier, Kornegay did
not limit his request to applications for vehicle service at-
tendant positions.
Kovalcik told Kornegay that he would contact Kornegay
later about Kornegay’s request. But Kovalcik did not do so.
(All parties agree that Hertz has not provided the Union with
the applications that Kornegay requested or with any infor-
mation from the applications.)
Kornegay testified that his only other conversation with
anyone from Hertz about the job applications occurred at a
meeting in February or early March 1993 with Joseph
Happe, Hertz’ vice president for the mid-Atlantic region.
Kornegay testified that he repeated his request to see the ap-
plications and his reason for wanting to see them. Happe said
that he would have to check with Hertz’ headquarters.
Kornegay heard nothing further from Happe.
B. Hertz’ Version
Kovalcik too remembered meeting in his office in early
1993 with Kornegay. And Kovalcik agreed that at that meet-
ing Kornegay asked for information about persons who had
applied for bargaining unit positions. But according to
Kovalcik, Kornegay said nothing whatever about foreign-
sounding names or discriminatory hiring practices by Hertz.
And Kornegay did not ask for the applications that had been
submitted by job applicants. Rather, Kornegay asked for a
list of the names and addresses of job applicants. The reason
Kornegay gave for wanting the information, Kovalcik testi-
fied, was that Kornegay was on a Teamsters committee in-
volved in ‘‘enrollment,’’ and Kornegay needed those names
and addresses for that committee. (In rebuttal testimony
Kornegay not only denied that he asked any Hertz official
for applicants’ names and addresses in connection with the
work of a Teamsters committee, he denied that he was ever
on any such committee.)
Kovalcik agrees with Kornegay that Kovalcik said that he
would get back to Kornegay about the request and did not
do so.
Both Kovalcik and Happe testified about a second meeting
with Kornegay in February or March 1993, and it is clear
that Kornegay was wrong in recalling that he and Happe met
alone. According to both Kovalcik and Happe, Kornegay
again asked for the names and addresses of applicants who
had applied for bargaining unit jobs and again said that he
wanted the information because of his membership on a
Teamsters committee. Kovalcik and Happe both testified that
Kornegay said nothing whatever about discrimination in hir-
ing or about names at the bottom of a seniority list. Happe,
like Kornegay, testified that he told Kornegay that he would
have to check with Hertz’ headquarters about whether to pro-
vide the Union with the requested information.
According to Happe, he had one other conversation with
Kornegay about applicant information, this time by tele-
phone. Kornegay, said Happe, again asked for ‘‘information
pertaining to applications.’’ And again, Happe testified,
Kornegay gave as his reason for wanting the information
‘‘the requirements that were on him from the Teamsters’’ (to
quote from Happe’s testimony). Happe denied that Kornegay
said anything about possible discrimination by Hertz or about
names on a seniority list. Happe testified that he told
Kornegay that Hertz was not going to provide the informa-
tion to Kornegay.
C. Did Kornegay Advise Hertz of his Concern About
Possible Discrimination Against Afro-Americans
It is more likely than not that sometime between late 1992
and the end of April 1993, Kornegay came to have the con-
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603HERTZ CORP.
cern that Hertz might be discriminating against Afro-Ameri-
cans in its filling of vehicle service attendant positions. (The
sequence of events, however, was probably different from the
one described by Kornegay. Almost surely the issue was first
raised by complaints coming to Kornegay from some of the
vehicle service attendants. Kornegay’s awareness of the ‘‘for-
eign’’ looking names on the seniority list then resulted from
those complaints.)
But did Kornegay share with Hertz these considerations
about anti-Afro-American discrimination? Plainly Hertz was
under no obligation to provide information about job appli-
cants to Kornegay if the only reason that Kornegay gave for
wanting the information was to provide it to a Teamsters
committee interested in membership ‘‘enrollment.’’ Thus the
differences between Kornegay’s testimony, on the one hand,
and Kovalcik’s and Happe’s, on the other, about the reasons
that Kornegay communicated for wanting applicant informa-
tion, are material.
As I will discuss later in this decision, it was up to the
General Counsel to prove that Kornegay’s version of his
meetings with Kovalcik and Happe was the correct one. I
find that the General Counsel failed to carry that burden of
proof. Both Kovalcik and Happe were at least as credible
witnesses as Kornegay was. In fact Kornegay’s testimony,
more so than either Kovalcik’s or Happe’s, suggests that his
memory can be spotty and that on occasion Kornegay is will-
ing to shade the truth.
As for documentary evidence, it cuts both ways. Thus one
letter in the record tends to support Kornegay, to at least a
limited extent (as will be noted below). On the other hand,
the Union did not keep even one of the several seniority lists
showing the hiring of ‘‘foreign nationals’’ that Kornegay
claimed so troubled him. (The lists that are in the record
were obtained from Hertz.) One would ordinarily expect
someone in Kornegay’s shoes—concerned about possible dis-
crimination by Hertz—to keep careful track of his copies of
those lists.
II. THE UNION’S WRITTEN REQUESTS FOR INFORMATION
On April 30, 1993, Kornegay sent a letter to Kovalcik that
read:
As a follow-up to the Union’s previous request, the
Union is again requesting a list of all applicants for em-
ployment in the Washington metro area who, if em-
ployed, would have been covered by the Labor Agree-
ment between Hertz Corporation and Local 922 for the
period March 1990 to present. Such list to the extent
it can be determined, should distinguish the applicant
by race, National origin, and sex gender.
As I explained earlier, this information is needed for
the Union to assure that we are in compliance with
Federal and State law and to assure that the provision
referencing Non-Discrimination of the labor Agreement
is being fully complied with.
The record is clear that this was the first time that
Kornegay had asked specifically for information about the
race, national origin, and sex of the applicants for bargaining
unit positions.
Kovalcik and Happe apparently continued to believe, even
after Kovalcik received this letter from Kornegay, that
Kornegay still wanted the applicant information solely for
the use of some Teamsters committee that was attempting to
increase union membership. But given Kornegay’s letter, that
belief was unreasonable. Let us assume, for present purposes,
that given what Kovalcik and Happe remembered of
Kornegay’s earlier oral communications, they could reason-
ably disbelieve the reason stated in the letter for the informa-
tion request: ‘‘to assure that we are in compliance with Fed-
eral and State law and to assure that the provision referenc-
ing Non-Discrimination of the labor Agreement is being fully
complied with.’’ Still, Kornegay’s letter does not ask for
copies of the applications or even for the applicants’ address-
es. And a response by Hertz that omitted addresses would
not have been of much use to a Teamsters ‘‘enrollment’’ ef-
fort.
On May 5, 1993, Kovalcik responded to Kornegay:
Pursuant to your letter of April 30th, and your re-
quest for employment information dating back to March
of 1990, as you were informed in March, we do not
feel that we are required to provide you with that infor-
mation.
I mentioned earlier that one letter in the record tends to
support Kornegay’s version of the meetings he held with
Kovalcik and Happe. This is that letter. Kornegay’s letter
had stated that, ‘‘As I explained earlier,’’ the requested infor-
mation was relevant to the Union’s concerns about discrimi-
nation by Hertz. Standing alone Kornegay’s letter is too self-
serving to suggest anything about whether Kornegay actually
had previously referred to his concerns about racial discrimi-
nation on Hertz’ part. But if Kornegay had not said anything
about discrimination prior to his April 30 letter, why did
Kovalcik’s responding letter not address that matter? It could
be, of course, that Kovalcik saw no need to bother correcting
Kornegay’s statement. Still, the interchange adds to the pos-
sibility that Kornegay had previously told Kovalcik of the
Union’s worry about discrimination by Hertz.
As it turns out (for reasons to be discussed later in this
decision), the outcome of this case does not hinge on wheth-
er or not Kornegay, in his meetings with Kovalcik and
Happe, said that his interest in the applicant information
stemmed from concerns about discrimination by Hertz. The
more important question is whether Kornegay ever told Hertz
what gave rise to the Union’s concerns (that is, the string of
hirings of persons whom the Union believed to be ‘‘foreign
nationals’’). Kornegay’s April 30 letter said nothing about
that, and thus Kovalcik’s response carries no implications in
that regard.
Kornegay wrote back that Kovalcik’s letter was ‘‘totally
unacceptable.’’
Kornegay’s letter was followed by one dated June 9, 1993,
from the Union’s attorney to Kovalcik. The letter states, in
pertinent part:
As Mr. Kornegay has explained, the Union wants this
information to determine whether the Company is in
compliance with the collective-bargaining agreement
and relevant law.
By this letter, I renew Mr. Kornegay’s request and
further ask that, in addition to the information already
requested for each applicant, you also indicate (1) the
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604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
date on which the applicant applied for employment,
(2) the applicant’s color, (3) whether the applicant was
hired, and (4) if the applicant was hired, the date on
which he or she was hired.
This letter, like the April 30 letter from Kornegay, makes it
plain that the Union was concerned about possible discrimi-
natory hiring practices by Hertz. But, like the April 30 letter,
this one is silent about why the Union believed that Hertz
might be engaging in any such practices.
An attorney for Hertz responded to the Union’s June 9 let-
ter by a letter dated July 9. That letter reads, in part (empha-
sis in the original):
Please be advised that Hertz will not provide the in-
formation to the Union as requested. . . . [A] showing
must be made by the Union as to the relevancy of its
request for applicant information. Certainly, the mere
assertion by the Union that the information is needed
to determine whether the Company is in compliance
with the Collective-Bargaining Agreement does not
automatically trigger entitlement to applicant equal em-
ployment data.
. . . .
IBT Local 922 has not alleged that Hertz has engaged
in discriminatory hiring practices. In fact, the Union has
not alleged any breach of the collective-bargaining
agreement. If that is not the case and you wish to cor-
rect the record in that regard, I would appreciate hear-
ing from you.
The last piece of relevant correspondence, dated August 6,
1993, was from the Union’s attorney to Hertz’. It states, inter
alia, that—
Local 922 is requesting the information because it is
investigating allegations that Hertz may have discrimi-
nated against certain protected classes of applicants in
making hiring decisions for positions under the Agree-
ment.
III. DATA CONCERNING THE EMPLOYEES IN THE
BARGAINING UNIT
At the hearing the Respondent provided data about the
number of employees in the bargaining unit who are mem-
bers of minorities. The data, which are as of December 31,
1992, also show male/female ratios. Additionally, Hertz pro-
vided minority data for new hires into the bargaining unit
during the first 4 months of 1993. I think the data are rel-
evant for two purposes: (1) in evaluating the reasonableness
of Kornegay’s belief that Hertz might be discriminating
against Afro-Americans in filling vehicle service attendant
slots, and (2) in determining whether Hertz should have un-
derstood why the Union wanted information about the race,
national origin, color, and sex of job applicants.
First, as to the makeup of the bargaining unit in terms of
minority numbers and percentages:
Table 1
Classification Total No.Employed Total White
Total Afro-
Amer.
Total
Hispanic
Total
Asian-
Amer.
Percent Afro-
Amer.
Percent Mi-
nority
Courtesy Bus Driver 31 12 17 0 2 54% 61%
Car Control Clerk 1 1 0 0 0 0% 0%
Office Clerk 7 4 2 0 1 29% 43%
Customer Service Rep. 4 1 3 0 0 75% 75%
Counter Sales Rep. 53 25 22 3 3 42% 53%
Subtotal 96 43 44 3 6 46% 55%
Vehicle Service Attendants 49 11 27 3 8 55% 78%
Totals with Vehicle Service
Attendants 145 54 71 6 14 49% 63%
As to male/female numbers and percentages:
Table 2
Classification Total No. Employed Total Male Total Female Percent Male Percent Female
Courtesy Bus Driver 31 28 3 90% 10%
Car Control Clerk 1 0 1 0% 100%
Office Clerk 7 0 7 0% 100%
Customer Service Rep. 4 1 3 25% 75%
Counter Sales Rep. 53 20 33 38% 62%
Subtotal 96 49 47 51% 49%
Vehicle Service Attendants 49 49 0 100% 0%
Totals with Vehicle Service
Attendants 145 98 47 68% 32%
Finally, as to new hires into the bargaining unit in the first
4 months of 1993:
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605HERTZ CORP.
5 I will sometimes refer to the circuit court’s decision as ‘‘the
court’s Postal Service decision’’ and the cited Board decision as
‘‘the Board’s Postal Service decision.’’
6 The Union’s information request asks that Hertz include the sex
of each applicant along with information about race and national ori-
gin. There is nothing in Kornegay’s testimony to suggest that he had
any reason to think that Hertz might be discriminating on the basis
of sex.
7 Hertz cites the ‘‘Management Rights’’ and ‘‘Non-Discrimina-
tion’’ provisions of the agreement. The former provides, in part, that:
‘‘The right to hire . . . is the sole responsibility of the Employer.’’
The latter, Hertz points out, refers to employees; it says nothing
about job applicants: ‘‘The employer and the Union agree that nei-
ther will discriminate either directly or indirectly . . . against any
employee by reason of race, creed, color, age, sex, national origin,
being handicapped or membership or activity in the Union.’’
8 For cases involving employer contentions that the union did not
state the purpose for which the union wanted the requested informa-
tion see, e.g., American Stores Packing Co., 277 NLRB 1656, 1659
(1986); Emery Industries, 268 NLRB 824, 825 (1984); Leonard B.
Hebert Jr. & Co., 259 NLRB 881, 883 (1981), enfd. 696 F.2d 1120
(5th Cir. 1983); Western Massachusetts Electric Co., 228 NLRB
607, 623 (1977), enfd. as modified 573 F.2d 101 (1st Cir. 1978).
Table 3
Total New
Hires 1/93-
4/93
White Black Hispanic Asian-American Percent Black Percent Minority
28 5 21 0 2 75% 82%
IV. CONCLUSION
One uncomfortable subject needs to be addressed first. In
his testimony in this case Kornegay came perilously close to
sounding as though he was opposed to Hertz’ hiring people
with names like Phung, Ayubi, Mangialai, and Chhun. If I
thought that some prejudice of that ilk was the basis of
Kornegay’s information request, I would dismiss this case
solely for that reason. But, considering Kornegay’s testimony
in its entirety, I am convinced that Kornegay’s concern was
that Hertz might be excluding Afro-Americans from vehicle
service attendant positions, not that Hertz was hiring people
with ‘‘foreign’’ names.
This is a case, that is to say, about a union’s request for
information about job applicants, in which the union’s inter-
est in the information stems from the union’s concern about
possible racial discrimination by the employer in its hiring
practices. By and large, the law is clear about a union’s right
to information in such circumstances.
When the information requested concerns persons not
represented by the union . . . the union has the burden
of establishing that the information is necessary to the
performance of its representational responsibilities. . . .
Since the union may have a duty to demand bargaining
over the elimination of a hiring practice if it is discrimi-
natory, we believe a union satisfies this burden with re-
spect to information relevant to the issue of discrimina-
tion whenever it has a rational basis for believing that
the practice may discriminate, i.e., information suffi-
ciently probative of discrimination to support a belief
that further inquiry is justified. [U.S. Postal Service v.
NLRB, 18 F.3d 1089, 1101 (3d Cir. 1994), modifying
308 NLRB 1305 (1992) (emphasis in original).]5
I turn first to the Union’s information request insofar as it
relates to applicants for vehicle service attendant positions.
As we have seen, as of the end of 1992 over half of Hertz’
vehicle service attendants were Afro-Americans. Nonetheless,
it seems to me that Kornegay did have a rational basis for
believing that Hertz might be discriminating against Afro-
Americans in its hiring of vehicle service attendants. Mem-
bers of the bargaining unit commented to Kornegay that the
new employees all appeared to be ‘‘foreign nationals.’’ And
seniority lists showed that the last eight vehicle service at-
tendants whom Hertz had hired—that is, all of the vehicle
service attendants hired in 1992—had names that made it un-
likely that any were Afro-Americans. Yet, as Kornegay rea-
sonably believed, the universe of potential employees for ve-
hicle service attendant positions included a relatively high
percentage of Afro-Americans. Under these circumstances,
Kornegay could reasonably conclude that Hertz’ hiring prac-
tices regarding vehicle service attendant positions might be
discriminatory. And that is enough to support a request for
information about the race and national origin of the appli-
cants for those positions. In the words of the court’s Postal
Service decision, ‘‘further inquiry’’ by the Union was ‘‘justi-
fied.’’6
As for the Union’s request for information about appli-
cants for positions other than vehicle service attendant, the
General Counsel failed to show that the Union had a rational
basis for believing that Hertz was acting discriminatorily in
filling those positions. That is painfully obvious in respect to
every classification other than sales representative. As to
sales representatives: (1) nothing in the record shows that
Kornegay believed that it was the type of job that should at-
tract many Afro-American applicants (even though many of
the sales representatives were Afro-American); (2) unlike the
vehicle service attendant situation, the implication of the
names on the sales representative seniority list was ambigu-
ous.
Hertz argues that even if a union would ordinarily be enti-
tled to the applicant information it seeks, Local 922 waived
that right by the terms of its collective-bargaining agreement
with Hertz.7 But the Board’s Postal Service decision makes
it clear that there is no merit to that contention.
Further, the Union’s written requests for information did,
of course, advise Hertz of the purposes for which the Union
wanted the information.8
All that is left to consider is whether it matters that there
has been no showing that, until Kornegay testified in this
proceeding, the Union had ever communicated to Hertz the
facts that caused Kornegay to believe that Hertz might be
discriminating against Afro-Americans in its hiring of vehicle
service attendants.
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606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 According to the court’s Postal Service decision, a union’s fail-
ure to advise the employer, prior to the unfair labor practice hearing,
of the facts that caused the union to believe the employer’s hiring
practices might be discriminatory is itself enough to require dismis-
sal, whether or not the employer asked for such explication. 18 F.3d
at 1102 fn. 7. But my obligation is to follow the teachings of the
Board, not those of the courts of appeals. E.g., Iowa Beef Packers,
144 NLRB 615, 616 (1963). The Board’s position, in turn, is not
entirely clear about whether an employer’s failure to provide the in-
formation amounts to a violation of Sec. 8(a)(5) if the union waits
until the unfair labor practice hearing to communicate such facts.
Compare Ohio Power, supra, 216 NLRB at 990–991 fn. 9, with
Adams Insulation Co., 219 NLRB 211, 214 (1975). But it does not
appear that the Board has previously had an opportunity to consider
the import of an employer’s request that the union explain the rea-
sons that led to the information request.
My conclusion is that this apparent failure by the Union
to explain its concern to Hertz is determinative of the out-
come of this case.
To begin with, while a union’s request for information
about any of the core aspects of the employer’s relationship
with members of the bargaining unit is ordinarily presumed
to be relevant (see, e.g., Honda of Hayward, 314 NLRB 443
(1994)), as the Board’s Postal Service decision holds, that
presumption of relevance does not apply to a request for in-
formation about job applicants.
Second, I will assume that if the circumstances should rea-
sonably have put Hertz on notice of the factual consider-
ations that led the Union to make its information request,
Hertz would not be heard to complain that the Union failed
to communicate those considerations to Hertz. Cf. Brazos
Electric Power Cooperative, 241 NLRB 1016, 1018 (1979).
But consider the makeup of the bargaining unit generally and
of the vehicle service attendant employees in particular (as
set out in tables 1 and 3, above). Given those data, it does
not seem to me that Hertz could reasonably have been ex-
pected to realize that the way it filled vehicle service attend-
ant slots in 1992 had led the Union to believe that Hertz
might be discriminating against Afro-Americans. Addition-
ally, the Union disguised its real interest by asking for
male/female data along with information about the race and
national origin of applicants.
Third, I will further assume that Hertz’ arguments about
not understanding why the Union wanted the requested infor-
mation would be entitled to diminished weight had the
record not included testimony from members of the employ-
er’s management about that lack of understanding. See Ohio
Power, supra, 216 NLRB at 994. But here two of Hertz’
managers did credibly testify that, until Kornegay testified at
the hearing here, they had no idea why the Union believed
that Hertz’ hiring practices might be discriminatory.
Lastly, and most importantly, Hertz put the Union on no-
tice that the Company wanted to know what facts led to the
Union’s belief that Hertz’ hiring practices might be discrimi-
natory. As discussed earlier, Hertz responded to the Union’s
June 9, 1993 information request by a July 9 letter that stat-
ed:
[T]he mere assertion by the Union that the information
[requested by the Union] is needed to determine wheth-
er the Company is in compliance with the Collective-
Bargaining Agreement does not automatically trigger
entitlement to applicant equal employment data.
. . . .
IBT Local 922 has not alleged that Hertz has engaged
in discriminatory hiring practices. In fact, the Union has
not alleged any breach of the collective-bargaining
agreement. If that is not the case and you wish to cor-
rect the record in that regard, I would appreciate hear-
ing from you.
It is true that the letter goes too far in suggesting that the
Union had to say why a breach of the collective-bargaining
agreement had occurred in order for the Union to be entitled
to the information it sought. Nonetheless, the Union should
have recognized that, by that letter, Hertz was asking the
Union to state what facts supported its information request.
The Union, however, responded by again stating only its
purpose in asking for the information, not by providing even
a hint of the facts led the Union to conclude that Hertz’ hir-
ing practices might be discriminatory. Under these cir-
cumstances Hertz was entitled to conclude that the Union
knew of no facts indicating that the Company might be
choosing job applicants discriminatorily. That being the case,
Hertz was under no obligation to provide the requested infor-
mation.9
[Recommended Order for dismissal omitted from publica-
tion.]
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