The Hertz Corp.

National Labor Relations Board - Board Decisions

Jul 7, 1970

184 N.L.R.B. 445 (N.L.R.B. 1970)

THE HERTZ CORPORATION 445
The Hertz Corporation and Pamela Yingling and
Melva Martin
The Hertz Corporation and Transportation Em-
ployees Association , affiliated with District 2,
MEBA, AFL-CIO, Petitioner. Cases
23-CA-3263 and 23-RC-3256
July 7, 1970
DECISION, ORDER , AND DIRECTION
By MEMBERS FANNING , BROWN , AND JENKINS
On July 14, 1969, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceedings, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also recommended that the objection to
election and a challenge to one ballot be overruled
and that the challenge to another ballot be
sustained. Thereafter, the General Counsel, the
Charging Party, and the Respondent filed excep-
tions to the Trial Examiner's Decision and briefs in
support of their exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, briefs,
and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as herein
modified.
Shortly after inception of an organizational cam-
paign among the car rental representatives at
Respondent's three direct car rental locations in
Houston, Texas, the Respondent discharged Pamela
Yingling, a rental representative. The General
Counsel alleges that this discharge was in violation
of Section 8(a)(3) and (1) of the Act. At the same
time, December 18 through 20, 1968, the Respon-
dent raised the pay of all employees in car rental
positions and made certain statements to its em-
ployees, all of which the General Counsel contends
constitutes violations of Section 8(a)(1) of the Act.
The Trial Examiner agreed, as we do, with the
General Counsel's contentions that the foregoing
constitute unfair labor practices for the reasons set
forth in the Trial Examiner's Decision.
Instrumental in establishing the Respondent's
motivation in discharging Yingling was the
testimony of rental representative Melva Martin,
whose testimony the Trial Examiner credited over
that of Respondent's Vice President Zone Manager
Burns. According to Martin, on the day before Yin-
gling was discharged, December 19, 1968, Burns
spoke to her alone at Respondent's airport rental
booth. He opened the conversation by asking,
"Melva, who started this mess about the Union
again?" Martin answered, "Well, I have talked to
Pam Yingling and Mary Cramer about the Union,
sometime back the first part of November." After
her explanation, Burns, according to Martin's
testimony, said:
"Well, if you want a union in here, you will
damn sure live by it." He says, "If you are late
three times, I will fire you." And he said, "A
union couldn't keep him from firing anybody if
he wanted to fire somebody."
Burns then inquired who were the girls working at
the rental counter. Martin identified them as
Pamela Yingling and Mary Cramer. Whereupon, he
said, "Well, is there any reason why we can't fire
these girls now?" The following day Yingling was
discriminatorily discharged.
On February 6, 1969, the same Melva Martin
was told to report to Respondent's main office in
Houston by Manager Perkins. He told her she was
going to be immediately transferred from her posi-
tion as a car rental representative at the airport lo-
cation into the main office where she would be
working on "records and accounts." She was ex-
pected to report the next day to begin her new
work. Martin objected to the move. She explained
that her job on the day shift at the airport, which
she had obtained through the Respondent's job
bidding system because of her long employment (5
years), was beneficial to her because it was 15
miles nearer her home and allowed her to go to
work in the same car with her husband who also
was employed at the airport. Perkins gave a number
of reasons why the change should be made; namely,
the regular employee who did this work was in the
hospital, other shift changes were being made at
this time, it would benefit Martin by allowing her to
be off her ailing feet,' and finally he had the
' Martin had been absent for 3 weeks in December 1968, because of an
operation on her foot
184 NLRB No. 49
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prerogative to make such changes. Martin, at first,
agreed to make the transfer assuming that it would
be temporary until the regular employee returned
but when Perkins told her that the change was to be
permanent she said she would rather quit instead.
After this meeting Martin made several attempts to
persuade the Respondent to keep her at the airport
but without success. The Respondent maintained
that so long as Martin refused to take the main of-
fice assignment she could not work for Respondent.
The General Counsel contends, as in the case of
Pamela Yingling, that Martin was also discharged in
violation of the Act.
The Trial Examiner concluded that there is not
sufficient evidence to warrant the finding. In his
view, the interrogation of Martin by Burns in
December 1968, set forth above, does not establish
that the Respondent knew or considered Martin to
be active in the union organization drive. The Trial
Examiner also finds that though she signed a union
card on January 31, 1969, there was no evidence
that the Respondent knew it. The Trial Examiner
also found reasonable Respondent's explanation of
Martin's proposed reassignment.
We disagree with the Trial Examiner's conclu-
sions . In the first instance, we are of the opinion
that the Trial Examiner misinterpreted the sig-
nificance of the Burns' interrogation of Melva Mar-
tin. The Trial Examiner properly concluded that
the interrogation established the Respondent's
knowledge of Yingling's union organizing activities
as well as Respondent's general union animus. The
interrogation , however, contrary to the Trial Ex-
aminer 's conclusion, in our view, clearly establishes
a similar motivation and knowledge with regard to
Martin. Burns singled out Martin to question about
the union activities. He questioned her in a manner
which suggested that he expected her to know all
about this "mess about the Union." She did not
specifically disclaim, as the Trial Examiner con-
cluded, a union involvement but only said that she
had talked to certain people about the Union.
Further, Burns seems not to have considered that
Martin excluded herself from union involvement.
Indeed, Martin testified that Burns warned her after
she told him of the union activity that "if you want
a Union in here , you will damn sure live by it." We
must conclude that Burns held the view that Martin
was in sympathy with the union organizing activi-
ties.
As to the question of whether the discharge of
Melva Martin was motivated by her union activities
the testimony of Herbert Wells, a rental representa-
tive, is revealing .' He testified that on either March
1 1 or 12, 1969, he had a conversation with Perkins
about the union organization campaign . Perkins in
the course of the conversation discussed the
reasons for Martin's discharge:
... he (Perkins) said , "There are rumors
going around, all around that she was moved
up to the business office and then later ter-
minated because of the shoes that she wears."
She has a medical shoe that she wears.
He said that he had heard rumors to the ef-
fect that the girls on the counter had com-
plained; and therefore, she was requested to
move to the business office.
He said this is not the case at all. The case
was, "I have a spot, a genuine place for her in
the business office, and I would like to move
anyone away from the counter and separate
from the counter any troublemakers."
We must assume that the term "troublemaker" was
directed at Martin who had up to that point been
the prime topic of conversation. Indeed, it is hard
to understand how the term "troublemaker" was
used with respect to Martin except as to her
suspected union activity. She had been employed
by the Respondent for over 5 years without in-
cident. Both Perkins and the office manager
testified that they were well satisfied with her work
and considered her one of the best among Hertz'
Houston employees. In these circumstances, we can
only conclude, especially in light of Respondent's
demonstrated union animus and the earlier Burns-
Martin conversation, that "troublemaker" referred
to only one thing: Martin's suspected union activi-
ties. Therefore, in our view and contrary to the
Trial Examiner, the evidence reveals that Respon-
dent proposed transferring Martin because of its
desire to remove a union adherent ("trouble-
maker") from the counter and, upon Martin's
refusal to acquiesce, discharged her.
As noted above, the Trial Examiner also con-
cluded that the Respondent, in describing the crea-
tion of a new position in the main office, had of-
fered a reasonable explanation for the proposed
reassignment of Martin. However, it appears that
up to the time of the hearing no one had yet been
hired for this new position which was allegedly so
necessary to fill.' Further, the record reveals that
the job Respondent was creating involved con-
2 Unaccountably, the Trial Examiner completely failed to consider the
testimony of this witness in rendering his decision Perkins did not specifi-
cally deny that he made such a statement to Wells
' The Trial Examiner based his conclusion that office help was needed
upon the fact that an office girl was out sick and had not been replaced
However, the record clearly shows that the position which Respondent of-
fered to Martin was newly created and that the sick girl returned to work at
the end of February 1969, about 3 weeks after Respondent ordered the
transfer of Martin Moreover , in this regard, Ruth , the office manager,
testified that he has not increased the office staff even though he admitted
that there were other employees who were as qualified as Martin to per-
form the work
THE HERTZ CORPORATION
siderably more than just the work with which Mar-
tin was familiar. Finally, although the Respondent
presented evidence to show that there had been 23
transfers during the 4 years before February 1969,
the record evidence is somewhat confused as to the
nature and the methods by which these transfers
were made. However, it is clear that the record
failed to show another instance where a longstand-
ing employee was transferred under similar circum-
stances.
In view of the foregoing, we find that Melva Mar-
tin was unlawfully discharged in February 1969.
Accordingly, she was still an employee at the time
of the election in March 1969, and therefore eligi-
ble to cast a ballot. The challenge to her ballot is
hereby overruled and her vote shall be counted.
On the election voting eligibility cutoff date,
February 20, 1969, Mary Schuster was transferred
from a switchboard located at one of the direct car
rental offices to a position outside the bargaining
unit. Mary Swindler, who had not been in the unit,
was transferred to this switchboard. The Trial Ex-
aminer properly found that there was no violation
of the Act committed when the Respondent trans-
ferred Schuster and also, therefore, properly
sustained the challenge to her ballot. However, we
disagree with his conclusion that Mary Swindler,
Schuster's replacement, was eligible to vote. Swin-
dler originally testified that she started work on her
new job Friday because Thursday ended a payroll
period and Friday would start the next pay period.
However, when she was informed that that Friday
was the 21st of February rather than the 20th of
that month (the voting eligibility date), she said
that she thought it would have been the 20th rather
than the 21st." Since this is the only evidence of-
fered to show what date she actually began work,
and as the personnel records were not introduced
in evidence, we must conclude, due to the confu-
sion in Swindler's testimony, that it cannot be
shown by this record that she was in the unit on the
voting eligibility date.5 Consequently, the challenge
to her ballot is sustained and her ballot will not be
counted.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
' Swindler's testimony on this point indicates her confusion as to what
day she actually started her new job
Q The Fridays in February are the 7th, the 14th, the 21st, and the
28th W ould that help you remember on what date you started work-
ing as a switchboard operator9
A I would hate to say for sure but I think it would have been the
20th, but I wouldn't want to be held to that
Q You mean the 21st9
447
Relations Board adopts as its Order the recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, The
Hertz Corporation, Houston, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended
Order, as herein modified:
1. Add to paragraph 2(a) "and Melva Martin"
after the name "Pamela Yingling."
2. Add to paragraph 2(b) "and Melva Martin"
after the name "Pamela Yingling "
3. Delete from the last paragraph the name
"Melva Martin."
4. Add to the fourth indented paragraph of the
Appendix "and Melva Martin" after the name
"Pamela Yingling."
DIRECTION
It is hereby directed that the Regional Director
shall, pursuant to the Rules and Regulations of the
Board , within 10 days from the date of this
direction, at a time and place he shall announce,
open and count the ballots of Pamela Yingling and
Melva Martin and revise the tally of ballots ac-
cordingly. If the revised tally discloses that the Peti-
tioner has received a majority of the valid votes
cast, plus challenged ballots, then a Certification of
Representative shall be issued.
MEMBER FANNING concurring in part and dis-
senting in part:
I concur in the majority opinion except as to my
colleagues' findings regarding Melva Martin. Con-
trary to my colleagues, I would find, as the Trial
Examiner found, that the record in its totality does
not support the allegation that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
Melva Martin.
As noted by the Trial Examiner, there is a
complete lack of evidence that Respondent ex-
pressed its antipathy toward the Union or the union
activities of its employees after December 20. In-
deed, no evidence was introduced to show that the
Respondent engaged in antiunion activities of any
form during this long hiatus. Further, by Martin's
own admission, she never attended any union
meetings, never actively solicited for the Union,
never talked to any union representatives, nor, ex-
A Yes, but I'm not sure that is right
' Moreover , inasmuch as no evidence has been offered to the contrary, it
is assumed that the transfer occurred in the orderly course of business This
would suggest that Swindler probably began her new job on the beginning
date of the new pay period, February 21 This is reinforced by the fact that
Schuster was told that she was to be transferred to Swindler's old job effec-
tive February 21, the beginning of the new pay period
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cept for the earlier discussion with Burns in
December, talked about the Union with any super-
visors. She signed a union card late in January
1969, but, according to her own testimony, she told
no one about the card signing. I cannot find any
persuasive evidence of antiunion motivation by the
Respondent in the discharge of Martin. The long-
time lag between its antiunion activities and the ter-
mination of Martin, and the lack of evidence show-
ing that either Martin was active in the Union or
that Respondent suspected her of being involved in
union activities, in my opinion, militate against a
finding that her discharge was discriminatorily
motivated.
Indeed, I find Respondent's explanation of why it
wanted to transfer Martin convincing. She was spe-
cially skilled and experienced for the kind of office
work which the Respondent wanted her to do. She
admitted it took perhaps a year of training to learn
how to do this type of work properly. There was
need in the office for the services of a person with
Martin's qualifications. Transfer of employees
among the Houston locations is not uncommon. No
evidence was presented to show that Martin's
proposed transfer varied from the Respondent's
established practice.
I would find, therefore, that it has not been
established that Respondent was discriminatorily
motivated in terminating Melva Martin's employ-
ment. Accordingly, I would dismiss that portion of
the complaint related to this alleged violation of
Section 8(a)(3) and (1) of the Act.
Section 8(a)(3) of the Act by unlawfully discharg-
ing two employees, and Section 8(a)(I) by certain
other conduct. Also in issue are the validity of four
challenges to ballots cast in the election held pur-
suant to the representation petition , and the merits
of the Union's objection to that election. Briefs
were filed after the close of the hearing by all
parties.
Upon the entire record, and from my observation
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Hertz Corporation, organized in the State of
Delaware, operates in various States of the United
States and is engaged in the automobile rental busi-
ness. In the State of Texas it maintains an office in
the city of Houston, where it also operates a
number of rental locations. During the past 12
months the Respondent performed services valued
in excess of half a million dollars in the State of
Texas, of which an amount in excess of $50,000
was received from customers outside that State. I
find that the Respondent is engaged in commerce
within the meaning of the Act and that it will effec-
tuate the policies of the Act to exercise jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
Transportation Employees Association , affiliated
with District 2, MEBA , AFL-CIO, is a labor or-
ganization within the meaning of the Act.
TRIAL EXAMINER'S DECISION AND
RECOMMENDATION ON CHALLENGES AND
OBJECTION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner : This is a con-
solidated proceeding , joining two cases for pur-
poses of hearing , a representation case (Case
23-RC-3256) and a complaint case (Case
23-CA-3263). A hearing was held before the duly
designated Trial Examiner at Houston , Texas, on
May 12 , 13, and 14, 1969. In the representation
case a petition was filed by Transportation Em-
ployees Association , affiliated with District 2,
MEBA , AFL-CIO, herein called the Union , seeking
to represent certain employees of The Hertz Cor-
poration , herein called the Respondent or the Com-
pany . The complaint case rests upon a charge filed
by the Union on February 14, 1969, against the
Company, and a consequent complaint , dated April
17, 1969, by the General Counsel . The issues
presented are whether the Respondent violated
III. THE UNFAIR LABOR PRACTICES
A. Chronology of Events
In the city of Houston, at the time of the events,
the Respondent operated out of four locations,
three devoted to direct rental of cars to the public,
and one an office on the ninth floor of a downtown
building, where telephone reservations were made
and records maintained. The organizational cam-
paign which gave rise to this proceeding started in
November 1968 and centered on employees called
car rental representatives. These persons worked at
the Houston Airport, the Shamrock Hotel in town,
and a third rental office on Louisiana Avenue, also
called the downtown office. The Union filed its
election petition on February 19, 1969; on March
7, the parties signed a Stipulation for Certification
Upon Consent Election, and agreed upon a bar-
gaining unit in the following language:
All car rental representatives employed at the
Employer's Houston, Texas, locations, includ-
ing those employees at the Airport, Downtown,
and Shamrock locations. Excluded: All other
THE HERTZ CORPORATION 449
employees, office clerical employees at the
3701 Kirby Drive location, guards, watchmen
and supervisors as defined in the Act.
The election was held on March 19, 1969, and
the tally showed 10 votes for the Union, 1 1 against,
and 4 ballots challenged. Seven days later the
Union filed its objection. It is these four challenges
and this objection that must be resolved in Case
23-RC-3256.
Shortly after inception of the organizational cam-
paign, on December 20, 1968, the Respondent
discharged Pamela Yingling, a rental representa-
tive. At or about the same time the -Respondent
raised the pay of all the employees in the auto
rental positions. On February 6, 1969, Melva Mar-
tin, another rental representative, was ordered
transferred to the Kirby Street office; she refused to
accept the transfer and was dismissed. The com-
plaint, as originally issued, called the discharge of
Yingling and Martin separate violations of Section
8(a)(3) of the Act, and the granting of the raise in
December, plus certain additional statements
voiced by company officers at the time, violations of
Section 8(a)(1). It will be noted that the petition
was not filed by the Union until February 19, 5
days after it filed the charge saying Yingling and
Martin had suffered illegal discrimination. The
Respondent denies commission of any unfair labor
practices.
On February 20, 1969, another transfer took
place; Mary Schuster, a telephone operator at the
Louisiana Avenue public rental desk, was sent to
the reservation department in the main office at
Kirby Street. Her name was not on the payroll list
at the time of the election on March 19, and the
Board agent in charge therefore challenged her bal-
lot. At the same time a reservation office employee,
Mary Swindler, who answered the telephone exclu-
sively at the main office, was assigned to the Loui-
siana Avenue office switchboard. She apparently
satisfied the consent agreement eligibility require-
ments, but, although her name was on the eligibility
list on March 19, the Union challenged her vote.
There is nothing in the complaint as issued
originally on April 17, or in the Union's written ob-
jection to the election, dated March 26, suggesting
any illegality or impropriety in the transfer of either
of these girls-Schuster or Swindler-from one sta-
tion to another in February. Nevertheless, on May
8, 4 days before the start of the consolidated hear-
ing, the General Counsel advised the Respondent
he intended to amend the complaint by charging
that the transfer of Schuster on February 20 was a
violation of Section 8(a)(1) of the Act on the
ground that the Respondent moved her for the pur-
pose of taking her out of the bargaining unit and
thereby lessening the Union's chances of achieving
a majority in the election. No one charged it was
improper for the Company to move Swindler into
the bargaining unit. Over the Respondent's objec-
tion the complaint was so amended at the hearing.
B. The Discharge of Pamela Yingling
The overt acts of restraint and coercion charged
to the Company came mainly between the 18th and
the 20th of December 1968, when, for 2 days, Mr.
M. Burns , vice president and zone manager from
Dallas , visited Houston and generally interested
himself in what was going on there. He was the im-
mediate supervisor over Dean Perkins , the Houston
manager , and Lawrence Babbitt, assistant manager.
Yingling was discharged without notice on the
20th, the day after Burns left. There is a direct
question of credibility before it can be determined
what Burns then told the employees. There is also a
clear issue on whether the local manager and
assistant manager can be believed in their explana-
tion of how Yingling 's termination came about.
And because company knowledge of the girl's
prounion activity, if in fact there was such
knowledge, is tied to the question of the true
motivation of the discharge, the credibility of all
three management agents must be appraised as an
interrelated issue.
In the three rental offices there were then about
23 employees; Burns testified that he was in
Houston exactly 2 days-the 18th and the 19th-
and that during this period he spoke to every one of
these persons, in twos or threes, sometimes singly,
because the desks had to be covered at all times.
Some he took to a coffee shop for more intimate
and undisturbed conversation. He asserted the
reason for this visit was to advise all that business
was so low there was danger to the entire Houston
operation. At times he testified generally about
what he told all the employees; at other times he
seemed to pinpoint his testimony, but it is not clear
that he told some persons one thing and others
something else. Essentially the burden of Burns'
total testimony is that whatever talk of union he
may have engaged in resulted from the employees'
having raised the subject and not he. "... generally
speaking, my main conversation the whole time I
was talking was about the condition of the opera-
tions and the obvious adverse attitude on the part
of some of the employees on the payroll...." "I
felt that there was a job to do and I thought if
everybody would extend their time and work and
give Hertz eight hours of good work, they wouldn't
have time to discuss all the petty things that was
going on in the operation."
Some employee witnesses put it differently. Yin-
gling worked at the airport and testified that on the
18th Burns took her and Mary Cramer, also a
rental representative, to the Dobbs House coffee
shop and started with: "`I hear there's been talk of
a union,' and he says, `but I don't want to know if
you are for it or against it, but ... I understand
there's a problem down here, and I am down here
to solve it."' When Yingling asked why something
had not been done sooner, Burns answered, still ac-
cording to the employee witness, "he would give
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me that answer the next day." It was on the 19th
that Burns announced a $16-per-month raise to all
the employees.
Before Burns was through with her that day, Yin-
gling told him "the morale of the girls was down,"
that hikers (service employees represented by the
Teamsters) were receiving benefits because they
were "with the Teamsters Union," but the girls
were not "because they weren't union," and that
the Company should consider giving raises more
promptly. To this Burns answered that "our job was
expendable, that there was other people that would
want our jobs , and that it was in demand, and as
that-if we felt that we needed to be paid more, we
could look elsewhere."
Elizabeth Parsons , then a supervisor at the Hotel
Shamrock location, testified Burns told her "that he
was aware that the Union talk was going around,
and had-later he told us that we would get a raise.
He said it had nothing to do with union talk at all."
Another employee, Clara Johnson, said that Burns
spoke to a group of five at Louisiana Avenue, and
"he said that he had heard that there was union talk
going around, and that if we negotiated a contract,
that he would be the one that would have to sign
the contract, and that if we did get the Union in,
that we would have to abide by it, that if we were
late as many as three times , that he could make it
very hard for us; in fact, terminate us." Johnson
continued that she later. called Burns aside and
made it a point to tell him she was not the one to
have started the union this time. According to her,
Burns then asked did she know "who had started it,
the union," and if she could find out "please talk it
down. We need to talk the Union down."
Kathy Box, another representative at the Sham-
rock Hotel, gave like testimony She quoted Burns
on the 18th as saying: "Well, he called us in and he
said, `Ladies, I hear there's union talk.' He said,
`Well, I won't have a union in my company.' He
said, `You have got to remember one thing; union
and management must come to an agreement for a
contract.' He said, `And, ladies, I can make it so
tough that you cannot possibly work under these
conditions.' He said, `For instance, if you are late to
work three times in a period of one year,' he said,
`that means automatic termination."'
Early in his testimony Burns denied any talk of
union contract; he pinpointedly denied telling Clara
Johnson to "talk the Union down," or threatening
any employee with reprisals by exacting harsher
requirements on the job by supertechnical enforce-
ment of any later collective-bargaining agreement.
As he continued he admitted that during his talks
"There was various questions about the union con-
tract, and the obligations on the part of the em-
ployees and on the part of the Company.... And I
told each of the employees that under a union con-
tract, that there could not be any deviations from
the contract, either by the Company or by the em-
ployees, because the contract is exactly what it says
it is , a contract, and it must be abided by."
The most significant conflict in testimony is that
between Burns and Melva Martin . Mrs. Martin was
one of the more experienced employees, not quite
as young as most of them, more than 5 years with
Hertz. There was general agreement by the Com-
pany's witnesses that she was one of the best em-
ployees, and her appearance and demeanor at the
hearing tended to support that view. She said that
Burns spoke to her alone at the airport on
December 19, starting with: "Melva, who started
this mess about the Union again? ", and she an-
swered, "Well, I have talked to Pam Yingling and
Mary Cramer about the Union, sometime back the
first part of November." She also mentioned one
Karen Popp. At this point, still according to Martin,
Burns continued : "`Well, if you want a union in
here, you will damn sure live by it.' He says, `If you
are late three times , I will fire you.' And he said, `A
union couldn 't keep him from firing anybody if he
wanted to fire somebody."'
As the conversation continued, Burns asked Mar-
tin, "Who was the tall, black headed girl, what was
her name , there behind the counter ." Martin
replied it was Mary Cramer. Burns then asked,
"This blond headed girl standing there, who is
she?" Martin said , "That 's Pamela Yingling."
Burns ' next words were : " Well, is there any reason
why we can't fire these girls now?" At the hearing
Martin said that at this point she remained silent.
Burns then left, telling Martin he was on his way up
to the airport coffee shop to see Manager Dean
Perkins.
Burns gave a completely different version of this
conversation. He said it was Mrs. Martin who came
to him at the end of the counter to tell him "I sup-
pose that you know that there are union activities
going among the Houston personnel ." He said his
only response was it was "nothing new." Martin
then continued with "there was a couple of girls on
the airport counter that should be removed or
should be terminated because of their undesirability
as far as the other employees were concerned," and
singled out Yingling and Cramer by name. Still ac-
cording to Burns, his only response to this was
"that if she was dissatisfied or concerned, that she
should discuss it with Mr. Perkins."
That Burns left Mrs. Martin that afternoon to go
up to the coffee shop where the manager was aait-
ing, that the assistant manager came down 5
minutes later about 4:30 p.m., that Yingling had by
that time left for the day, and that the assistant
manager then pinned a note on her timecard, as
well as that of Mary Cramer , advising them to come
to the office to see Perkins the next day, are all
facts established by uncontradicted testimony. It is
also a fact that Assistant Manager Babbitt
discharged Yingling without advance notice the
next afternoon. Cramer left the Company on Janua-
ry 25, and the record does not explain why.
The theory of complaint with respect to
THE HERTZ CORPORATION
Yingling's discharge is that the zone manager came
to Houston at least in part to learn who was behind
the union movement, interrogated Mrs. Martin,
learned of this girl's activity, and then arranged
with the Houston manager to have her fired the
next day. The defense to this contention is an affir-
mative one, that Yingling had improperly abused
the sick leave privilege given all employees and was
released for that reason and for that reason alone.
And it is true she had taken 2 days off from work,
reporting sick although she was well, during the
week before her dismissal.
Hertz' employees in the Houston area are paid, if
they fall sick, I day in every 2-1/2 months. This
total of 5 days per year must be used before
December 31 and does not accumulate thereafter;
if not used it is lost. Yingling first learned toward
the end of the year that the 2 or 3 days she was en-
titled to would be canceled soon if she had no occa-
sion to enjoy the benefit. She said at the hearing,
and several other employee witnesses corroborated
her in general terms, that there was a tacit un-
derstanding with management that the employees
could use this sick leave even if not actually ill, in-
asmuch as they would otherwise lose it. On this
record there can be no finding the Company openly
permitted employees to take time off, paid, under
the sick leave rule when in fact they were not ill.
Uncontradicted evidence does establish that em-
ployees did call in sick when they were out and col-
lected for the time; indeed Parsons, a supervisor,
testified she knew others had done so, and had even
herself reported sick when she was not. She made
quite clear, however, she knew "you were not sup-
posed to do that," and that when one girl under her
did it she did not report the incident to higher
management.
In any event, Yingling reported sick by telephone
on December 10, and on this basis did not work her
scheduled shifts on December 11 and 12. She was
also absent on the 13th, but this seems to have been
pursuant to an accepted practice of one girl shifting
assignments with another for personal convenience.
She was paid and heard nothing about the matter
until the afternoon of Friday, December 20, when
Assistant Manager Babbitt invited her to the coffee
shop in the airport and confronted her with his
suspicion.
The manager, Perkins, said he was on vacation
that entire week, but never left town, stayed at
home, and had come to the office at times. He and
Babbitt told the story of how, when, and why they
decided to discharge Yingling. Considering their
testimony on this question in its entirety, I cannot,
and do not, credit either of them, except where
Babbitt's testimony of the discharge conversation
Also from the transcript
A I discussed this with Mr Perkins
Q And this was in a conversation on December 17th9
A Somewhere around that date, yes, sir I believe it was the 17th
451
comports with that of Yingling.
Perkins said he knew nothing of Yingling's union
activities, no one told him. He even said flatly he
did not see Zone Manager Burns at all those 2 days,
because he, Perkins, was on vacation. This was an
incredible statement on its face; the whole purpose
of Burns' visit, according to him, was to straighten
out Perkins' way of running the Houston operation
and changing its direction towards a profit, else
Perkins would have to be transferred somewhere
else. Perkins then reversed himself and said he did
meet with Burns on the 19th, but only to discuss
operational matters, and not for any talk about Yin-
gling or unionism.
Babbitt, the assistant manager, quit the Company
on March 1, 1969. He testified he became suspi-
cious of Yingling because Dixon, Perkins' secretary
who also made the payroll, happened to tell him the
girl had called to inquire how much sick leave there
was to her credit, and soon after was paid sick
leave. Dixon did not testify. Babbitt said he brought
this to Perkins' attention by calling him at home,
and that on Perkins' advice the two of them de-
cided to investigate the matter and to discharge
Yingling if Babbitt's suspicion should prove true. A
very critical part of this whole story is that the two
managers agreed to find out what really happened
before taking any action. Babbitt: ". . . he [Perkins]
said to check into it . And then if it was true, to go
ahead with termination proceedings."t From Per-
kins' testimony: "So at this time I told him to in-
vestigate it and verify the facts before anything was
done about it."
Babbitt continued that he did investigate, and
that this occurred on the afternoon of December
20, Friday, by inviting Yingling upstairs in the air-
port to sit with him at the Dobbs House. "I asked
her if it was true. . . . That she called in sick when
she wasn 't sick, and that she had-that she had
made a trip to Las Vegas. And she said yes." In ad-
mitting, the girl protested others had done the same
and named Lynn Harmon, also an airport em-
ployee, as an example. Babbitt told her to sit still
while he checked on this; he went downstairs to see
the records and was satisfied Harmon had not done
what Yingling did but instead had obtained advance
permission for leave without pay. He returned up-
stairs to Yingling and continued the conversation.
No amount of pleading by the girl had any effect;
she begged for another chance, delay in the
discharge until after Christmas, an opportunity to
make up the time without pay. Babbitt discharged
her then and there.
Unlike Babbitt, Perkins was still with the Com-
pany at the time he testified. He produced an office
memorandum dated December 19 addressed to
Q Was that the decision of the two of you on-December 17th)
A To investigate it thoroughly, and that if it was true, then it would
be termination , and this is why I saw Mrs Yingling 's omission [sic],
that she did that That 's when we terminated her
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yingling and signed by himself. It reads as follows:
It has come to my attention that on December
11, 1968 and December 13, 1968, you
telephoned you were sick and unable to come
to work. On December 12, 1968, you did not
contact us and was absent from work. Through
you own admission, it was discovered that you
had not been sick, but on a trip and with the
understanding that you would receive sick pay
for the days you were absent.
Since through your own admission you
deliberately misrepresented the facts and took
advantage of a privilege granted by the Hertz
Corporation, we have no other choice but to
terminate your services from this company.
The testimony of the manager is completely in-
consistent with that of Babbitt. Thursday, the 19th,
was a regular payday. Perkins said the system was
to place copies of such letters in the employee's pay
envelope, butt this one, which he said he wrote and
signed on Thursday, was not given to Yingling that
day. He said he wrote the letter after the investiga-
tion had been completed, and indeed the document
refers to Yingling's having already admitted the
misrepresentation. But Babbitt was positive in his
story that he did not investigate until the 20th, and
that it was not until that afternoon he got Yingling's
admission of error. Perkins said he found the docu-
ment he brought to the hearing in the office files,
and added a copy had been delivered to the em-
ployee by Babbitt. But neither Yingling nor Babbitt
referred to such a letter at all. Actually, Babbitt
could hardly have testified he gave it to Yingling,
because according to him it was at the very mo-
ment he questioned whether she had taken
unauthorized leave that Perkins would have him
putting the letter in the girl's hand. Perkins said
directly it was he who decided to discharge her,
that he made the decision after Babbitt had advised
him of the results of his investigation.
With this the total testimony of the two
managers, with the purported discharge letter
totally irreconcilable with their oral testimony, I do
not credit either of them. I find that Yingling's
absence of 2 days during the week of December
9-13, even though she was not sick, was not the
reason why the Company discharged her. I am also
convinced the Respondent's exhibit, the memo
dated December 19, 1968, was prepared after the
date for purposes of supporting a false defense at
the hearing.
A reason for discharging Yingling there had to
be. Perkins first lied by saying he did not speak to
Zone Manager Burns at all during the 2 days before
the discharge; later he admitted he did. What was
he attempting to hide? Burns said the lady, Martin,
volunteered to him the girls were joining the Union
and suggested he discharge two of them. Martin
was not a supervisor , and no rational suggestion
was advanced by the Respondent why she should
say things like this to the visiting official. Burns was
asked was he curious enough to inquire why she
spoke to him thusly, and did he want to know how
she came to join these two thoughts at the one mo-
ment-union activities and undesirability as an em-
ployee. He gave no plausible answers to either of
these questions. Against the contrary testimony of
Mrs. Martin, whose demeanor as a witness im-
pressed me much more than that of the three
management witnesses, I do not believe Burns. He
went from office to office and talked union to each
and every one of the many girls. He admitted
discussing a union contract with them and what
would happen. From Martin he went to speak to
Manager Perkins upstairs, and it was precisely
when the assistant manager came down again only
minutes later and placed a note on Yingling's
timecard that the first step was taken leading to the
"investigation" the next day and her summary
discharge. I think the record as a whole fully war-
rants the inference that Burns questioned Martin,
as she testified, learned from her that Yingling was
one of those who favored the Union, expressed the
thought she should be discharged, told Perkins all
about it upstairs in the lounge only minutes later,
and then, either alone or together with the
manager , decided to discharge her.' The rest-
about the girl having abused the sick leave arrange-
ment-was an afterthought used as window
dressing to cover the illegal motivation. I find that
by questioning Martin concerning the union activi-
ties of the employees, and by telling her such per-
sons should be discharged, Burns committed
separate violations of Section 8(a)(1) of the Act. I
also find, on the entire record, that the Respondent
discharged Yingling on December 20, 1968,
because of her union activities, and thereby vio-
lated Section 8(a)(3) of the Act.
Burns continued his visits from location to loca-
tion in Houston into December 19, and on his last
visits around told the sales representatives they
were all receiving, forthwith, a raise of $16 per
month. He had learned a desire for more money
was among the reasons for the prounion movement,
had told two of the girls the day before there would
2 Assistant Manager Babbitt testified that there was need for a girl that
Saturday , and that therefore on the 18th or 19th he spoke to Yingling to
ask would she come in to do some overtime on the 21st, that Saturday He
had forgotten his statement as a witness , given only a few minutes earlier,
that on the 17th Perkins told him to discharge the girl if it was true she had
not been sick the week before Instead of asking her about this on the 18th
or 19th , while she was on duty, he invited her graciously to help them to do
overtime After Burns talked to him in the lounge , Yingling is gone for the
day, and he puts a note on her card to see him so he can fire her Only the
day before , when Yingling told Burns it was raises the Union promised, the
zone manager had told her " the job was expendable " There is no escaping
the conclusion Babbitt was lying at the hearing
f
k
THE HERTZ CORPORATION
be an answer to this concern of theirs the next day,
and, with the excuse of needing to explain to them
the workings of any union contract he might one
day have to sign, had made them understand they
would suffer if they chose a union to deal with him.
I have credited the employees against Burns as to
these conversations. The Respondent's justification
for this across-the-board raise, and its explanation
of the extraordinary timing, is unpersuasive. It was
in an amount that comported with raises of the
past, and was given after approximately the same
waiting period as other occasions. In his explana-
tion of how this particular raise came about Burns
was unconvincing . He said it was decided 2 or 3
weeks earlier, then said it was decided before the
election (which came 3 months later), and then
responding to purely leading questions by his coun-
sel, agreed raises were usually given when the
hikers received theirs "About that time." The
hikers' raise was in September, and no one ex-
plained away the intervening 3-month period.
There was no talk to the employees about raises be-
fore the day it was announced. It is possible the
Respondent might have given raises of this kind to
these employees about this time . There can be no
doubt, however, it chose that particular day-when
it checked on who had "started the Union," warned
employees their jobs were "expendable" and a
union could hurt them, and in fact discharged one
of them to curb the union activity-in order that
the granting of the raise would have the maximum
effect in persuading them all against their prounion
resolve. I find, as alleged in the complaint, that the
granting of the raise at that time was calculated to
coerce the employees in the exercise of their Sec-
tion 7 rights and therefore constituted a violation of
Section 8(a)(1) of the Act. I also find that Burns'
statement to a number of employees that their con-
ditions of employment would be adversely affected
by his changed attitude towards them if they chose
to be represented by a union was a further unfair
labor practice.
C. The Discharge of Melva Martin
There is virtually no evidence that any manage-
ment representatives expressed themselves against
union activities, generally or with respect to in-
dividual employees , between the events of the week
ending December 20 and February 6, when Martin
left the Company 's employ . She had been a rental
representative for 4 years at the airport , and was
called to the Kirby Street office on the 6th to see
Manager Perkins. He told her she would have to
start work the next day in that office , on records
From the transcript
Q (By Mr Deakins ) Mrs Martin , you didn't let it be known by offi-
cials around there, the offices and supervisor, that you had signed this
union card , did you'
A No, sir, 1 hadn't
453
and accounts. Martin objected to the move; she ex-
plained how the day shift at the airport was desira-
ble because it was 15 miles nearer her home than
Kirby Street, how she had to travel in the same car
with her husband, and how she had worked 3-1 /2
years at night before successfully bidding for the
day shift at the airport. Perkins said her services
were needed because a regular girl was still in the
hospital, other shift changes were being made, it
would keep her off her feet, and anyhow he was the
boss, not the employee. It is a fact one of the office
women had undergone surgery and was still away,
and in December Martin had been absent 3 weeks
because of trouble with her feet. Martin first agreed
to make the transfer, but when Perkins added the
change would be permanent she said she would quit
instead. Perkins insisted. After a telephone call to
Burns in Dallas, and another talk with Perkins the
next day, in each of which Martin failed to per-
suade the Company to keep her at the airport, she
turned in her uniform. The Respondent's position
was then, as it was at the hearing, that so long as
Martin refused the office assignment she could not
work anywhere else for the Company. Perkins said
he would take her even now at Kirby Street to work
on accounts.
Martin signed a union card on January 31, but
there is no evidence the Company knew it. In ,fact
she added she had not spoken to any official of the
Union before her separation, had not gone to any
union meetings , and never spoke to a company
agent about it.3 When Burns asked her, back in
December, who was "starting the union," she gave
names of others, but not her own. Considering all
of the facts relevant to the issue raised by the
discharge of Melva Martin-and discharge it truly
was-I do not think the evidence said to support
the complaint allegation placed a burden upon the
Respondent to prove affirmatively she was not
transferred for illegal reasons.
She was specially skilled and experienced for the
kind of office work Perkins wanted her to do. She
admitted it took perhaps a year of training to learn
to do the kind of accounting reports she long had
done and that this was the type of work they ex-
pected of her at Kirby Street. There was need for
such help in the office at the time; an office girl out
sick had not been replaced. That there was need in
the office for the services of a person with Martin's
qualifications is further indicated by her own state-
ment that a week or two earlier DeWeese, the air-
port supervisor, suggested the transfer to her but
she refused. Transfer of employees among the
Houston locations are not uncommon. The record
evidence is not exact as to the nature of the trans-
* And you didn't talk about it in front of them, did you9
A No, sir, 1 did not
Q So far as you know, none of them knew that you had signed it,
isn't that right"
A No, sir, they didn't
427-835 0 - 74 - 30
454 DECISIONS OF NATIONAL
fers that were made , but it is true about 23 transfers
occurred during the 4 years before February 1969.
Some of these sent girls from the public rental
desks to the office and vice versa . There is sug-
gestion-in the testimony of several witnesses-of
posting and bidding procedures whereby more
senior employees were favored for more desirable
posts as they opened . Without detailing the very
ambiguous words of the witnesses , I can only find
the evidence falls short of proving the transfer of
Mrs. Martin in February did violence to any
established practice.
Transfer of Martin from the airport to Kirby
Street took her out of the bargaining unit in which
the Union sought an election . But the petition was
not filed until February 19, and there is a paucity of
evidence that management knew the organizational
campaign was building up at that time . The record
in its totality does not support the allegation of un-
lawful discharge as to Mrs. Martin , and I shall
therefore recommend dismissal of the complaint as
to her.
D. Transfer of Mary Schuster
The bargaining unit description written by the
Union in its representation petition filed February
19, reads "all car rental representatives and
counter clerks ... excluding all other employees,
office clericals . . . ." When the parties arranged for
a consent election , on March 7, they revised the
language to read : " All car rental representatives
employed ... at the Airport, Downtown , and the
Shamrock locations ... excluding all other em-
ployees , etc...."
At that time there was a telephone switchboard
at the Louisiana Avenue location (downtown), but
not at either the airport or the Shamrock Hotel;
two girls , each on a separate shift , covered that
switchboard . On February 20 one of these-Mary
Schuster-was transferred to work as a telephone
operator in the reservation department on Kirby
Street . This was a group of nine girls on the ninth
floor who did nothing but answer the telephone and
arrange out-of-town or future car bookings. At or
about the same time another girl , Mary Swindler,
also a telephone operator , was shifted from else-
where to the Louisiana switchboard job. It is a
belated allegation of the complaint that the
Respondent moved Schuster away from the Loui-
siana Avenue station to Kirby Street for the pur-
pose of taking her out of the bargaining unit and
thereby hurting the Union's chance of winning the
election, and that such action was an unfair labor
practice . The transfer of that girl on that day under-
lies one of the issues-a challenge -to be decided
in the representation proceeding, Case
23-RC-3256. Schuster's name was not on the eligi-
bility list as of the day of the election on March 19;
Swindler 's name did appear. Schuster came to vote
but because her name was missing the Board agent
LABOR RELATIONS BOARD
in charge challenged her. Swindler also attempted
to vote , for she satisfied both eligibility require-
ments-payroll date and moment of election-but
the Union challenged her.
Resolution of both these challenges , and any
answer to the question whether Schuster was il-
legally taken out of a bargaining unit , requires,
without equivocation , decision on whether the job
she occupied before her transfer was embraced
within the unit at the time of the election . On this
threshold question the General Counsel and coun-
sel for the Union were vague and evasive at the
hearing , indeed they could not agree between
themselves. From the transcript:
TRIAL EXAMINER: To the General Counsel
the transfer of this lady was an 8(a)(1) viola-
tion , right?
MR. ARTER : Right.
TRIAL EXAMINER : In February.
MR. ARTER : That is correct.
TRIAL EXAMINER: And according to you,
then the job she occupied before the transfer
was within the unit?
MR. ARTER : Yes, sir
TRIAL EXAMINER : And the one to which they
put her was outside the unit?
MR. ARTER: That is right.
TRIAL EXAMINER : Is it also the position of
the Union, that the job the lady occupied be-
fore February 20th was inside the unit?
MR. Ross : It is not.
At the close of the hearing:
MR. ARTER : The only people that were ex-
cluded from the unit, my understanding of it,
are the people in reservations [the Kirby Street
office] and the hikers. They are not included in
the unit.
MR. ARTER : But the telephone operator at
the downtown office was included in the unit
TRIAL EXAMINER: If she were transferred out
of the unit for the ulterior motive because the
allegation says that she was taken out to impair
the majority , or to weaken the Union 's chances
in the election , you said this was a violation of
an 8(a)(1)?
MR. ARTER: Yes.
*
TRIAL EXAMINER : Next , now she 's over there
in the other place , and she is transferred for an
ulterior motive , according to the Complaint,
and it might be that that ballot still unopened
may affect the results of the election.
MR. ARTER : That is true.
TRIAL EXAMINER: Do you, General Counsel,
THE HERTZ CORPORATION 455
take any position on whether her ballot should
be counted?
MR. ARTER: Well, I mean, I have not been
an advocate with regard to the challenged bal-
lots, sir.
TRIAL EXAMINER: I ask this because if the iI-
legallity is found in the intent to defeat the
Union in the election, logic in the remedy
requires something to be done to undo the
damage. You say the lady was moved out to
kill the Union?
MR. ARTER: Yes.
TRIAL EXAMINER: But if she was in and out
of the unit job and left it before the election,
do you want me to do anything about her?
MR. ARTER: Well, it would follow that her
ballot should be counted.
In a very technical sense the allegation that
Schuster's transfer was illegal can be disposed of
without deciding whether the job she vacated was
or was not included in the bargaining unit, for the
evidence does not affirmatively support the asser-
tion of illegal motive. I will recommend dismissal of
the complaint in this respect. It is important, how-
ever, to make clear right now, if there is not to be
more confusion added to the ambivalence and dou-
ble-talk of the lawyers at the hearing, that the
telephone operator job at the downtown location
was included in the unit , that Schuster was not on
that job on March 19 and therefore was not eligible
to vote, and that Swindler did fill the job then and
had a right to vote.4
It is a fact, as already shown, that at times em-
ployees are transferred about among the Respon-
dent's Houston locations. Schuster was the
telephone operator at Louisiana Avenue and she
continued to do the same kind of work at Kirby
Street. Anne DeCoker, supervisor of the reserva-
tion department, told Schuster at the time that she
had asked for her because she, DeCoker, did not
like Swindler's "image ," meaning her voice projec-
tion on the telephone to the public. No one men-
tioned the Union or union activities at that time or
in connection with the transfer.
Three months before her transfer Schuster was
asked by Zone Manager Burns did she know what
the girls ' grievances were about; she told him she
did not. In January Parsons, the then supervisor of
the Louisiana Avenue location, asked about her in-
terests concerning the Union; the two agreed a
union would be a good thing. Beyond this, the
record mentions-in one way or another-perhaps
10 employee names as persons interested in the
Union; there is no indication that Schuster was in
any way more active than anyone else. Parsons, the
supervisor, was openly prounion , and the girls said
at the hearing they spoke freely to her because they
could trust her. She herself made clear she told no
one else of her talk with Schuster, or of her like
conversations with other girls who discussed pro-
union ideas with her.
The record evidence fails to prove the allegation
of illegality in this girl's transfer to the reservation
department. With this, it follows she was ineligible
to vote in the March election. That all employees of
the Kirby Street office were excluded from the unit
is clear. The challenge to her ballot was therefore a
good one.
There remains the question whether the job
Swindler occupied on March 19 was included in the
unit. She was one of the switchboard operators. As
to what was said by the parties on inclusions and
exclusions when they agreed to a consent election,
the testimony conflicts. Burns said his lawyer made
clear he signed the agreement only with the un-
derstanding the eligibility list furnished by the Com-
pany would be accepted. Ross, who was the
Union's attorney even then, denied there was any
such accord.
There is much to indicate the parties intended to
include the switchboard operator job at Louisiana
Avenue in the voting group. To start with, the bar-
gaining unit language agreed upon suggests such in-
clusion. The entire function of the three rental of-
fices, as distinguished from the ninth floor office at
Kirby Street, is to rent cars to the public. Agree-
ment was on "all car rental representatives," and
whoever answered the telephone dealt with people
interested in renting cars. Laurette Whitehead was
then the second-shift operator, her name was on
the eligibility list furnished by the Company, no
question arose about her, and she voted without
challenge. When the consent agreement was made
Kathy Box attended the Board conference for the
Union; her testimony strongly shows that what the
Union wanted was simply Mary Schuster's vote and
not exclusion of the telephone operator job. In ob-
jecting to Swindler as a voter, the Union said, ac-
cording to Box: "All we were saying, if they wanted
to let Mary Jane Swindler be on there, why not
have Mary Schuster's vote and Melva Martin's."
Here was the Union itself equating Schuster's and
Swindler's voting eligibility on that Louisiana
Avenue switchboard.
The transcript is simply full of confusing talk, by
lawyers and witnesses, a mixing of two matters-
(1) was the telephone operator's job in or out, and
(2) was -there a difference between Swindler and
Schuster as individuals, so that one was out and the
other in? And the whole mountain of double-talk
grew out of and was compelled by the last-minute
idea, never raised by anyone until the very start of
the hearing, that Schuster's transfer was maliciously
motivated. The record, of course, does not show
how either of the two girls voted, but it is fair to
presume the Union had a good idea before, and a
' The "payroll of eligibility" set out in the consent-election agreement as claimed at the hearing and the record does not show she failed ofeligibility
February 20, 1969 Although the record is unclear in spots, it does appear in this respect
Swindler satisfied this eligibility requirement also In any event, It was not
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
better one after, the election on what their ballots
would now show. In order to open Schuster's and
keep Swindler's closed, the first needs to be put
back in the unit and the second taken out. As they
were both telephone operators, and as they both sat
at the same switchboard, necessarily the Union's
problem lead to incoherencies.s
All employees who ever have occasion to speak
with the public in Houston, by telephone or other-
wise, are given the same training, including how to
rent a car and fill out rental agreements. Schuster
-testified that while she worked at the Louisiana
Avenue station, she also "would relieve Clara at
lunch, and then when it got real busy out front,
when the phone was quiet, I would go out front and
help rent cars, and I would go back and answer the
phone if I needed to." Whitehead, who covered the
second shift at Louisiana Avenue at the same time,
said that when she was first put there "they put me
on the switchboard"; she then added, without ex-
planation: "I rented cars while I was working the
switchboard." Johnson, a witness for the General
Counsel, said that when the occasion fits the
telephone operator obtains all the details from the
customer on the telephone, and the final document
is then written by a countergirl. For reasons not ex-
plained on the record-and certainly not noticeable
to the eye-Swindler experienced "personality con-
flicts," as she said, and once even left the Company
for this reason but later returned. She testified that,
although she was trained to and knows how to
make out rental contracts, she worked only at the
switchboard, did no counterwork at all, except
"only momentarily," as for example when the
countergirl left it "for a few minutes" and she,
Swindler, stamped the check-in of a car.
I think it is of little moment that one telephone
operator may have substituted at the front desk
more often than another. They were all essentially
telephone operators cooperating with the rest of
the employees in , the Louisiana rental office
towards the same end. I agree with the words of the
General Counsel, spoken on the record at the close
of the hearing: "My understanding is the telephone
operators at the downtown office, they were in-
cluded in the unit. The telephone, because they are
dealing with the public."
Swindler was an eligible voter on March 19,
1969, and the Union's challenge to her ballot must
be overruled.
IV. THE REPRESENTATION CASE
A. The Challenges
As Pamela Yingling was unlawfully discharged in
December 1968, she was still an employee of the
s It must be because of ultiinaie appreciation of its impossible position on
this matter of Swindler's inclusion in the unit that the Union's brief aban-
dons all that took place at the hearing and now advances still a new theory
to avoid her vote It says she came to work at Louisiana Avenue too late
She was Schuster's immediate replacement, Schuster did not work
Thursday or Friday, February 20 and 2 l But the switchboard was covered
Company at the time of the election in March
1969, and therefore eligible to cast a ballot. The
challenge to her ballot must be overruled and her
vote counted.
As Melva Martin had ceased working for the
Company before the election, she was ineligible to
vote. The challenge to her ballot must therefore be
sustained.
At the time of the election Mary Schuster was
employed in the reservation department, all of
whose employees were excluded from the voting
group by agreement of the parties. The challenge to
her ballot must therefore be sustained.
Mary Swindler was a telephone operator at the
Louisiana Avenue public rental office at the time of
the election, a category included in the bargaining
unit . She was therefore eligible to vote; accordingly
the challenge to her ballot must be overruled and
her vote counted.
B. The Objection
As stated above, this hearing was also held at the
request of the Regional Director for purpose of in-
vestigating the merits of an objection filed by the
Union to the conduct of the election. The written
objection is limited to the activities of one em-
ployee while the balloting was going on. The elec-
tion took place at the airport area, an hour or so in
the morning and also in the afternoon.
In support of the objection the Union proved that
during the afternoon, Carl Boutwell, a car rental
representative stationed at the airport location,
loitered not far from the polling place, spoke to
some employees approaching to vote, talked to
some after they had cast ballots, and generally tried
both to discourage fellow workers from voting in
favor of the Union and to keep a tab on the likely
results. He was variously placed by the different
witnesses as standing, or moving about, some 25,
35-40, or 100 feet distant from the physical ballot-
ing place.
Although in its objection the Union asserted
Boutwell was an agent of the Company, the
evidence shows only that he was no more than a
rank-and-file employee. Indeed, the testimony of-
fered to prove supervisory status is so flimsy as not
to warrant repetition here. As to behind the scene
instigation by the Company, there is no evidence
whatever. A lawyer for the Union was in the area,
and a union observer also, but no one spoke to the
Board agent in charge of any impropriety then, and
the usual certificate of a proper election was
signed.
I recommend that the objection be overruled.
at all times While Swindler was not sure- and this was because no one
raised any question about the exact day she started her new job-she did
say she thought she started work at Louisiana Avenue on the 20th It will
not do for a lawyer to write a brief, after the close of an extended hearing,
about a case other than the one that was tried
THE HERTZ CORPORATION 457
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES RECOMMENDED ORDER
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
operations described in section 1, above, have a
close, intimate, and substantial 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.
VI. THE REMEDY
As the Respondent unlawfully discharged Pamela
Yingling it must be ordered to offer her reinstate-
ment to her former position and to make her whole
for any loss of earnings resulting from the dis-
crimination. The Respondent must also be ordered
to cease and desist from threatening its employees
with reprisals, interrogating them in a coercive way,
or giving them benefits in order to discourage their
union activities. As the unlawful dismissal of an em-
ployee because she has chosen to assist a union
goes to the heart of the Act, the Respondent must
be enjoined from in any way violating the statute
hereafter.
Upon the basis of the foregoing findings of fact,
and upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act
3. By discharging Pamela Yingling the Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of
the Act.
4. By the foregoing conduct, by interrogating
employees as to the identity of prounion em-
ployees, by threatening to discharge employees
because of their union activities, by giving raises to
employees to discourage their union activities, and
by telling employees their conditions of employ-
ment would be harsher if they choose to be
represented by a union, the Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act it is hereby ordered that The Hertz
Corporation, Houston, Texas, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging employees or discriminating in
regard to their hire, tenure of employment, or other
terms or conditions of employment, because they
have engaged in concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection.
(b) Interrogating employees as to the identity of
prounion employees, threatening to discharge em-
ployees because of their union activities, giving
raises to employees to discourage their union activi-
ties, telling employees their conditions of employ-
ment would be harsher if they choose to be
represented by a union, or in any other way inter-
fering with, restraining, or coercing employees in
the exercise of their right to engage in, or to refrain
from engaging in, any or all of the activities
specified in Section 7 of the Act.
2. Take the following affirmative action, which I
find will effectuate the policies of the Act:
(a) Offer to Pamela Yingling immediate and full
reinstatement to her former job without prejudice
to any rights and privileges previously enjoyed.
(b) Make whole, as specified herein in The
Remedy, Pamela Yingling for any loss of pay she
may have suffered as a result of her unlawful
discharge.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all records necessary to analyze the
amount of backpay due and the right of employ-
ment under the terms of this recommended Order.
(d) Post at its places of business in Houston,
Texas, copies of the attached notice marked "Ap-
pendix."' Copies of said notice, on forms provided
by the Regional Director for Region 23, after being
duly signed by the Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees, in-
cluding all present public rental locations in and
about Houston , are customarily posted. Reasonable
steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 23,
in writing, within 20 days from the receipt of this
6 In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision, what steps have been taken to comply
herewith.'
IT IS HEREBY RECOMMENDED that the complaint be
dismissed insofar as it alleges the unlawful
discharge of Melva Martin and the unlawful
transfer of Mary Schuster.
r In the event that this recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in writ-
ing, within 10 days from the date of this Order, what steps Respondent has
taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discharge any of our em-
ployees or discriminate in regard to their hire,
tenure of employment, or any term or condi-
tion of employment, because they have en-
gaged in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection.
WE WILL NOT interrogate our employees as
to the identity of prounion employees, threaten
to discharge employees because of their union
activities, give raises to discourage union ac-
tivity, or tell employees their conditions of em-
ployment will be harsher if they choose to be
represented by any labor organization.
WE WILL NOT in any other way interfere
with, restrain , or coerce our employees in the
exercise of their right to engage in, or to
refrain from engaging in, any and all of the ac-
tivities specified in Section 7 of the National
Labor Relations Act.
WE WILL offer to Pamela Yingling im-
mediate and full reinstatement to her former
job, without prejudice to any rights and
privileges previously enjoyed , and we will
make her whole for any loss of pay she may
have suffered as a result of the unlawful
discharge.
You are all free to join , or to refrain from join-
ing, Transportation Employees Association, af-
filiated with District 2, MEBA , AFL-CIO.
THE HERTZ CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 6617, Federal Office Building, 515 Rusk
Avenue, Houston, Texas 77002, Telephone
713-226-4296.