National Car Rental Co.

1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Car Rental Company 1 and Automotive, Petroleum, Cylinder & Bottled Gas, Chemical Drivers, Helpers and Allied Workers, Local Union No. 922, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica,2 Petitioner. Cases Nos. 5-RC-3985 and 5-RC,-4036. April 2, 1963 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, hearings 3 were held before M. Louise Felton, hearing officer. The hearing officer's rulings made at the hearings are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these consolidated cases to a three-member panel [Members Leedom, Fanning, and Brown]. Upon the entire record in this case, the Board finds : 1. The Employer, a Nevada corporation with its main office in Jack- son, Mississippi, was organized December 1, 1961, to engage in the car rental business and in the granting of franchises to independent operators. On October 1, 1962, it purchased the assets of a Missouri corporation bearing the same name. The predecessor corporation, which had maintained its principal offices in St. Louis, Missouri,' was engaged solely in franchising independent operators, and its in- come was derived from franchising fees, the sales of letterhead sta- tionery, and advertising. At the time of the purchase, there were approximately 297 franchises issued to 151 operators located in all States of the United States and in foreign countries. In the 6-month period ending September 30, 1962, the old corporation derived $173,000 from this operation. The Employer holds these franchise agreements and now collects the fees. At the time of the hearing, the Employer had begun its car rental business by opening three locations in and near Washington, D.C. The rental station at Washington National Airport, Virginia, was opened October 1, 1962; at Dulles International Airport, Virginia, November 19, 1962; and at the International Inn, Washington, D.C., December 10, 1962. During its first month of operation at Wash- ington National Airport, the gross income from car rentals totaled $9,800. The Employer expected to have 142 cars for rental at these three locations by December 1, 1962, with anticipated revenue of between $200 and $300 per month per car. It was further estimated by 1 The name of the Employer appears as amended at the hearing. x The name of the Petitioner appears as amended at the hearing. 9 These cases were consolidated by the Acting Regional Director after a hearing on Case No. 5-RC-3985, and a consolidated hearing on both cases was held thereafter. 4 Apparently the predecessor corporation has for all practical purposes been dissolved. 141 NLRB No. 93. NATIONAL CAR RENTAL COMPANY 1087 the Employer that about 75 percent of the cars rented at Washington National Airport, Virginia, were driven into the District of Colum- bia. The Employer had purchased automobiles in the amount of $30,000 from a dealer in Florida, $11,000 from a dealer in Wash- ington, D.C., and about $250,000 from dealers in Virginia. The Employer opposed the assertion of jurisdiction by the Board on the ground that the Board's retail standard is applicable and has not been met. The Employer further contended that the Board can- not rely on the income of its predecessor for jurisdictional purposes. These contentions are without merit. The Employer is a single cor- porate entity operating as a retail enterprise (the car rental opera- tions) and a nonretail business (the franchise operations). It is well- settled Board policy that where, as here, the nonretail aspect of an employer's operation is not de minimis, the Board's nonretail standard will be applicable.5 It is clear that the predecessor corporation re- ceived income of over $50,000 annually from its franchises to operators outside the State of Missouri, and hence was within the Board's non- retail standards The Employer did not claim or show that there had been a substantial change in the franchise operations since its purchase, but stated it was unable to present any evidence. As the Employer has taken over business operations which satis- fied the Board's nonretail jurisdictional standards during their last year in operation,' and as it has not established that there has been any change in this operation so as to affect the Board's jurisdiction,8 we find that, on the basis of the totality of the Employer's operations,9 the Em- ployer is engaged in interstate commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdic- tion herein. The Employer's motion to dismiss the petition on jurisdic- tional grounds is therefore denied. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer within the meaning of Sec- tion 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks two separate units, one of rental repre- sentatives and another of car hikers,10 located in the Metropolitan Washington area comprised of the Employer's operations in downtown 5 Appliance Supply Company, 127 NLRB 319, 320. 9 Siemons Mailing Service, 122 NLRB 81, 85 7 Cf DeKalb Gas, Inc, etc., 133 NLRB 352, 354. s Greene County Farm Bureau Cooperative Association , Inc, 132 NLRB 1592, 1593; Tropicana Products, Inc., 122 NLRB 121. 6 Appliance Supply Company, supra 10 The rental representatives work at counters at the various locations of the Employer where they are in constant contact with the general public to whom they rent cars. The car hikers have little if any contact with the public. They keep the cars clean and presentable, and they drive them between the storage areas and the "ready point" at the rental location or a place designated by the lessee. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Washington, D.C., and at Dulles International Airport and Wash- ington National Airport in Virginia. The Employer generally agrees to the composition of Petitioner's units, but would also include rental representatives and car hikers at its contemplated locations in Balti- more, Maryland, and at Friendship International Airport, Maryland. The record shows and we have been administratively advised that the Employer is still in preliminary negotiations concerning potential locations in the Baltimore, Maryland, area and at Friendship Inter- national Airport. It appears that no firm commitment has been made as to these locations, and there is no indication that, for these proposed locations, the Employer has hired employees. As the Employer's op- erations, at this time, in the Baltimore area and at Friendship Interna- tional Airport are merely speculative, we shall limit the scope of the unit to the existing locations at downtown Washington, D.C., Dulles International Airport, and Washington National Airport. Accordingly, we find the following employee groups at the Em- ployer's Metropolitan Washington Area locations (Washington, D.C., and in Virginia at Washington National Airport and Dulles Inter- national Airport)," excluding from each the office clerical employees, professional employees, and supervisors as defined in the Act, con- stitute separate units appropriate for collective bargaining within the meaning of Section 9 (b) of the Act :12 (a) All rental representatives, including lead rental representatives, but excluding all car hikers, lead hikers, and dispatchers. (b) All car hikers, including lead hikers, but excluding all dis- patchers, rental representatives, and lead rental representatives. 5. The Employer contends that the petition is premature and elec- tions should not be conducted at this time, as it has not hired a sub- stantial and representative complement of employees in either the unit of rental representatives or the unit of car hikers. It is conceded that the employes in each unit have similar skills. The record shows that at the time of the second hearing, December 19, 1962, the Employer had 11 The Petitioner originally sought units limited to employees at Washington Inter- national Airport. As the units herein found appropriate are larger than those originally petitioned for, the Regional Director is instructed not to proceed with the elections herein until he shall have determined that the Petitioner has made an adequate showing of interest among the employees in the appropriate units who are to vote in the elections. [The Board amended the Decision and Direction of Elections on April 29 , 1963, by in- cluding in the units found appropriate by the Board , the employees at the Employer's rental office at 1915 North Howard Street , Baltimore, Maryland.] 12 Contrary to the Employer 's contention , the units are not rendered inappropriate, nor is an election untimely, because a substantial number of the employees are in proba- tionary status, and the proportion who will attain permanent status is uncertain See National Torch Tip Company, 107 NLRB 1271. The decision in S C. Adams Company, 107 NLRB 348, cited by the Employer, is inapposite, because there the requested unit was expected to expand to about 8 times its size at the time of the hearing, the employees sought had not been placed in job classifications , and the record contained insufficient evidence on which to determine the appropriateness of the single -plant unit sought in any event. MERRILL TRANSPORT CO., ETC. 1089 hired approximately 58 percent of the estimated total complement of rental representatives and 50 percent of the estimated total com- plement of car hikers at the three Metropolitan Washington area locations, and the Employer expected to have its full complement in both units at the end of February 1963. As it thus apears that there will be a substantially full complement of the employees in both units, when the elections directed herein take place, we see no reason for de- parting from our usual policy of directing an immediate election.13 [Text of Direction of Elections omitted from publication.] 13 Cf. General Electric Company, 118 NLRB 456, 460; Hussmann Refrigerator Company, 125 NLRB 621. Paul E. Merrill d/b/a Merrill Transport Co. and Commercial Leasing, Inc., and Paul E. Merrill and Cook & Company, Inc., and Paul E. Merrill and Truck Drivers, Warehousemen and Helpers Local Union No. 340, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Cases Nos. 1-CA-3800, 1-CA-3845-2, and 1-CA-3845-3. April 3, 1963 DECISION AND ORDER On November 26, 1962, Trial Examiner James T. Barker issued his Intermediate Report in the above-entitled proceeding finding that Respondents Commercial Leasing, Inc., and Paul E. Merrill and Re- spondent Cook & Company, Inc., and Paul E. Merrill had engaged in and were engaging in certain unfair labor practices and recommend- ing that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that Respondent Merrill Transport Co. had not engaged in the alleged unfair labor practices and recommended that the complaint be dismissed insofar as it alleges unfair labor practices by Respondent Merrill Transport Co., individually. Thereafter, the Respondents and the General Counsel filed exceptions to the Inter- mediate Report and briefs in support of their exceptions. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. 141 NLRB No. 97.