Thrifty Rent-A-Car

National Labor Relations Board - Board Decisions

Jan 27, 1978

234 N.L.R.B. 525 (N.L.R.B. 1978)

THRIFTY RENT-A-CAR
Wolfrich Corporation d/b/a Thrifty Rent-A-Car and
Freight Checkers, Clerical Employees & Helpers,
Local No. 856, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, Petitioner. Case 20-RC-141571
January 27, 1978
DECISION AND CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Pursuant to the terms of Stipulations for Certifica-
tion Upon Consent Election approved by the Re-
gional Director for Region 20 on April 15, 1977, an
election by secret ballot was conducted on May 4,
1977, under the Regional Director's direction and
supervision among employees in the stipulated unit.
At the conclusion of the election, the parties were
furnished with a tally of ballots which showed that,
of approximately seven eligible voters, seven cast
valid ballots, of which five were for and one was
against the Petitioner. One ballot was challenged, a
number insufficient to affect the outcome of the
election. Thereafter, the Employer filed 10 objections
to the conduct of the election and conduct affecting
the results of the election.
Pursuant to Section 102.69 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Regional Director conducted an inves-
tigation, and on June 20, 1977, issued and duly
served on the parties her report on the challenged
ballot and the objections. Her report recommended
that each of the Employer's 10 objections be over-
ruled and that the Petitioner be certified. Thereafter,
the Employer filed timely exceptions to the Regional
Director's report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The labor organization involved claims to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. The parties stipulated, and we find, that the
following employees of the Employer constitute a
I We have severed this case from Wolfrich Corporation d/b/a Thriftry
Rent-a-Car, 234 NLRB 529 (1977), with which it had been joined by the
234 NLRB No. 76
unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the
Act:
All garage personnel of the Employer at its
Millbrae, San Francisco, and San Jose, California
locations; excluding all other employees, confi-
dential employees, guards and supervisors as
defined in the Act.
5. The Board has considered the Regional Direc-
tor's report, the exceptions thereto, and supporting
brief, and hereby adopts the Regional Director's
findings, conclusions, and recommendations.
Our dissenting colleague, however, would remand
this case for a hearing regarding Objections 3
through 8. Those objections in essence allege that the
Petitioner's business agent (1) made false promises of
benefits to the employees, (2) made misrepresenta-
tions to the employees that the Employer had agreed
with the Petitioner to sign a collective-bargaining
agreement containing certain provisions which were
favorable to the employees, and (3), in the course of
making such promises and misrepresentations, told
certain employees that he had been speaking with the
Employer at the Board's Regional Office.
The Regional Director set forth the pertinent facts
as follows: on the day before the election was
scheduled, the Union's business agent telephoned
two employees. The first employee stated that the
business agent told her that he was calling from the
Board's offices and had just been talking with the
Employer's president. The business agent then alleg-
edly stated: "If you were in the Union you could be
making $4.35 an hour and one of your co-workers
could be making $6.01 an hour." The second
employee stated that the business agent had told her
that he had recently spoken with the Employer's
president, who had been very agreeable and had
"agreed to what we wanted." In addition, the
business agent allegedly stated that the Employer
had agreed that wages would be increased from $4 to
$5 per hour.
The Regional Director overruled each of the
objections. In support of her conclusion regarding
the misrepresentations, the Regional Director cited
Shopping Kart Food Market, 228 NLRB 1311 (1977),
in which the majority of the Board stated that it
would no longer set elections aside on the basis of
misleading campaign statements. In support of her
conclusion regarding the Union's promises of bene-
fits, the Regional Director stated that "employees
generally understand that a union cannot automati-
cally obtain benefits by winning an election, but
Regional Director, because we are certifying the representative herein, but
directing a hearing on a challenged ballot in 234 NLRB 529.
525
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must attempt to achieve them through the collective-
bargaining process." Finally, the Regional Director
also concluded that the business agent's "bare
statement to one employee that he was calling from
the Board's offices did not . . . 'improperly involve
the Board and its processes' ... an exception to the
rule promulgated in Shopping Kart Food Market,
supra." We agree in all respects with the Regional
Director's conclusions.
However, as mentioned above, our dissenting
colleague would remand this case for a hearing. He
sets forth three arguments in support of that posi-
tion: (1) union promises of benefits, although gener-
ally not deemed objectionable, constitute objection-
able conduct when presented to employees with
"tacit" or "implied" Board approval; (2) the Petition-
er's conduct improperly involved the Board and its
processes; and (3) the Petitioner's conduct is argu-
ably analogous to the forged document exception
recognized by the Shopping Kart majority. The
following is a discussion of each of these arguments
and our response thereto.
With regard to the first argument, our dissenting
colleague concludes that the Petitioner made prom-
ises of benefits to several employees with "tacit" or
"implied" Board approval. However, we fail to
understand how the mere mention by a business
agent that he was calling from the Board's offices
constitutes "Board endorsement" of the agent's
statements.2 Moreover, we note that the Regional
Director found, and the affidavits of the employees
confirm, that the Petitioner's business agent stated
that he was calling from the Board's offices only to
the first of the two employees involved herein. Thus,
we find that the business agent's reference to the
Board's offices in these circumstances was merely an
innocuous remark which did not amount to "tacit"
or "implied" Board approval of the Union's promises
of benefits. 3 Therefore, we agree with the Regional
Director that the Petitioner's promises of benefits
were not objectionable.4
As to the second argument, our dissenting col-
league finds that the Petitioner "may" have improp-
erly involved the Board or its processes in two
respects. First, by making promises of benefits with
"tacit" or "implied" Board approval, the Petitioner's
business agent may have improperly created the
impression of Board partisanship in the election.
However, in accordance with our finding above that
the business agent's statement to the first employee
did not constitute Board endorsement of the Union's
promises, we conclude that the alleged statement did
not create the impression of Board partisanship or
2 See Skaggs Drug Centers, Inc., 197 NLRB 1240, 1247-48 (1972).
3 Contrary to our dissenting colleague's characterization of our position
in fn. 6 of his dissenting opinion, we do not base our decision herein on the
fact that the statements made to two employees were isolated.
otherwise improperly involve the Board or its pro-
cesses. Second, "by allegedly representing that the
Employer had virtually agreed to recognition and
specific bargaining proposals with implied Board
approval, the Union may have perverted the electoral
process by converting the representation election
into a defacto referendum on specific provisions of a
purported 'collective-bargaining agreement.' " (Em-
phasis supplied.) In support of this proposition, our
dissenting colleague apparently relied upon the
statement made by the Petitioner's business agent
during a telephone conversation with the second of
the two employees involved herein. As noted above,
the business agent did not state to the employee
involved that he was calling from the Board's offices.
Nevertheless, as our dissenting colleague suggests,
the affidavit of that employee indicates that the
business agent had just emerged from the preelection
conference when he had made the call. However, for
the reasons stated above regarding the statement
made to the first employee by the business agent,
wherein he explicitly mentioned that he was calling
from the Board's offices, we find that the conversa-
tion between the business agent and the second
employee, a fortiori, did not constitute Board en-
dorsement of the Union's promises as well. Thus, we
conclude that the Petitioner did not improperly
involve the Board or its processes in this respect.
With regard to the third argument, our dissenting
colleague concludes that the Petitioner's conduct "is
arguably analogous to the forged document excep-
tion recognized by the Shopping Kart majority."
However, the forged document exception has only
been applied by the Board in cases involving actual
forgeries, which deceive the employees as to the
source of campaign propaganda. That is clearly not
the situation in this case.
Accordingly, we shall issue the following certifica-
tion.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Freight Checkers, Clerical
Employees & Helpers, Local No. 856, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all employees in the unit found
appropriate herein for purposes of collective bargain-
ing with respect to rates of pay, wages, hours of
employment, or other conditions of employment.
4 See Acme Wire Products Corporation, 224 NLRB 701 (1976).
526
THRIFTY RENT-A-CAR
MEMBER JENKINS, dissenting:
Employer's objections to elections held May 4,
1977, allege serious misconduct by the Union's
business agent on the very eve of these elections.
Employer's Objections 3 through 8 and affidavits in
support thereof refer to a preelection conference held
at the Board's Regional Office the afternoon before
the election at which the Union's business agent,
Hurley, and the Employer's president, Kleczak, were
in attendance. It is alleged that during the course of
the conference Hurley absented himself on a number
of occasions, and unbeknownst to the Board repre-
sentative or Kleczek, telephoned several employees.
According to the objections, Hurley in each instance
made it a point to state that he was calling from the
offices of the National Labor Relations Board or that
he had just emerged from a conference with Kleczek.
After stating that he was calling from the offices of
the National Labor Relations Board, Hurley alleged-
ly told one employee that Kleczek was right out in
the hall, and that if they were in the Union they
would be making $4.35 an hour. This alleged
conversation suggests both Kleczek's tacit agreement
to provide economic benefits as well as the Board's
sanction of same. Hurley allegedly told another
employee that Kleczek had agreed to whatever they
wanted, that he had agreed to set wages at $4 to $5
an hour, and that all they had to do was vote "yes." 5
Thus, the Employer's objections and supporting
affidavits clearly suggest that the Union's business
agent used these telephone calls from the Board's
offices to convey promises of benefits conditioned on
a union victory at the polls, false representation of
Employer support for the Union and agreement to
specific bargaining proposals, and intimations of
Board approval of same.
My colleagues have adopted the Regional Direc-
tor's recommendation to dismiss Employer's Objec-
tions 3 through 8 on the basis of Shopping Kart Food
Market, 228 NLRB 1311 (1977). In so doing, they
I Although it does not affirmatively appear that Hurley told this
employee that he was calling from the Board's offices, her affidavit clearly
indicates that she was aware that Hurley had just emerged from t.e Board's
preelection conference and that Hurley was reporting on the outcome. This
conversation again indicates that Kleczek had agreed to specific bargaining
proposals and at least impliedly suggests Board sanction.
6 My colleagues apparently conclude that the Union agent's alleged
reference to the Board's offices in a conversation with one employee was an
isolated and therefore innocuous statement which could not be found
objectionable. Another alleged conversation with a second employee
appears to have communicated the fact that the union agent had just
emerged from the Board's preelection conference and that he was reporting
on its outcome. To this extent, at least, the Board's processes were again
injected into the Union's election campaign. The majonty concludes.
however, that this conversation could not be found objectionable by mere
reference to their discussion of the first conversation. To discount the
impact of one statement by characterizing it as an "innocuous remark" and
to dispose of the significance of a second, virtually identical, conversation
for the same reason defies logic. A single reference may well be "innocu-
ous," but when a second conversation imparts the same message a strong
ignore the serious nature of these allegations of
misconduct6 and conclude that these allegations do
not raise substantial or material issues warranting a
hearing to determine whether the elections should be
set aside. I cannot concur in what I view as an
abdication of our fundamental responsibility under
the Act to insure the fairness and integrity of the
electoral process. Accordingly, for these reasons and
the additional reasons set forth below, I would
remand this case for the purpose of conducting a
hearing before a duly authorized Hearing Officer to
resolve the issues raised in Employer's Objections 3
through 8.7
Even if I did not disagree with the rationale
underlying the Shopping Kart decision,8 I would still
find that it does not control the outcome of this case.
Promises of benefits which may tend to affect the
outcome of an election constitute a sufficient basis
for setting aside an election, whether such promises
convey actual intentions or irresponsible misrepre-
sentations. To call the Union's alleged promise of
benefits a misrepresentation and dismiss its signifi-
cance on the basis of Shopping Kart is to miss the
point; misrepresentation or not, it is still a promise of
a benefit reasonably calculated to influence the
election outcome.9 Although in most situations a
union cannot reasonably be viewed as capable of
making credible guarantees of such managerial
decision as increases in wages and benefits, the facts
of this case present a different situation. Here the
Union, it is claimed, prefaced its promise of benefits
with false representations that the Employer had
agreed to specific economic bargaining proposals
with tacit Board approval. When a Union thus
appears to have cloaked itself with credible apparent
authority to deliver on its promise of specific eco-
nomic benefits it should be estopped to deny the
objectionable impact of these promises. In these
circumstances, such conduct should warrant setting
aside an election.
inference of a pattern of intentional electioneering tactics arises. Although
my colleagues deny that their conclusions are not based on a finding that
the alleged conversations were isolated or de minimis, their analysis speaks
for itself. In view of the size of the units involved (7 eligible voters here and
10 eligible voters in Case 20-RC-14146 which has been severed) I cannot
conclude that statements made to two employees were isolated, de ninimis,
or innocuous. Moreover. I would point out that the Board and courts have
long recognized that 'le experience has shown that statements made during
election campaigns are the subjects of discussion and repetition among the
electorate." Standard Knitting Mills. Inc.. 172 NLRB 1122 (1968); Interna-
tional Mfg. Co., Inc., 167 NLRB 769 (1967). In these circumstances it is clear
that the Employer's allegations are serious and substantial.
I would emphasize to the majority that the question we are passing on
is whether Employer's allegations raise substantial issues warranting a
hearing, and not whether Employer should prevail on the merits. As I have
already stated, I would find that Employer has clearly made a sufficient
showing to warrant a hearing.
I See Chairman Fanning's and my dissent, and my further dissent
therein. 228 NLRB 1311, 1315-18(1977).
Cf. N.L.R.B. v. Savair Mfg. Co., 414 U.S. 270, 278-281 (1973).
527
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even if this case is viewed as a proper case for the
applicability of Shopping Kart, and I do not so regard
it, I would point out to my colleagues that the alleged
misconduct falls within the express exceptions to the
rule in that case. Employer's allegations suggest that
the Union engaged in "deceptive campaign practices
. . .involving the Board and its processes," 10 in two
respects. First, it appears that the Union may have
improperly created the impression of Board partisan-
ship in the representation election." Second, by
allegedly representing that the Employer had virtual-
ly agreed to recognition and specific bargaining
proposals with implied Board approval, the Union
may have perverted the electoral process by convert-
ing the representation election into a de facto
referendum on specific provisions of a purported
"collective-bargaining agreement."
Indeed, such conduct is arguably analogous to the
forged document exception recognized by the Shop-
ping Kart majority. This exception indicates that
elections will be set aside based on misrepresenta-
tions "which render voters unable to recognize
propaganda for what it is,"'12 not because of the
substantive conduct but because of the deceptive
manner in which it is presented. Thus, when a party
calls employees directly from a preelection confer-
ence at Board offices the afternoon before an
election, one can reasonably conclude that the use of
these external circumstances enhances the credibility
and apparent legitimacy of its misrepresentation.
Finally, the majority's application of the Shopping
Kart rule to this case appears to confirm the fears
Chairman Fanning and I registered in that case;
namely, that such a broad sweeping and mechanical
doctrine jeopardizes the integrity of the electoral
process under the Act. The present case suggests that
o1 228 NLRB at 1313.
" J. Ray McDermott & Co., Inc., 215 NLRB 570(1974).
reliance on this doctrine may all too often result in
the disregard of the right of employees to have an
opportunity to make free and informed decisions at
the polls. Such a result seems to follow inevitably
from the wholesale elimination of any standards
governing substantial misrepresentations during elec-
tion campaigns and the relinquishment of any
practical means of compelling accountability. A
representation election is the threshold event from
which substantial rights and obligations flow. The
designation of a labor organization as the exclusive
collective-bargaining representative thus endows it
with significant power to shape the present and
future livelihood of the employees it represents. Once
this designation has been made, the Act seeks to
encourage its permanency with a view toward pre-
serving industrial peace through the promotion of
stable collective-bargaining relationships. Thus, the
Board's electoral process, unlike the electoral process
in the political realm, does not require collective-
bargaining representatives to run for reelection peri-
odically, and to this extent collective-bargaining
representatives are not held directly accountable for
misrepresentations which may have carried the day
for them in their initial representation election. In
view of these considerations, I do not think that the
electoral processes under the Act should be taken so
lightly as to be left to the whim and caprice of
irresponsible campaign tacticians without recourse to
minimal standards and a mechanism for compelling
accountability.
The failure to hold a hearing in this case to resolve
the issues raised by the Employer's objections erodes
confidence in the Board's ability to protect the right
to an opportunity for free and informed participation
in our electoral processes.
12 228 NLRB at 1313.
528