Avis Rent-A-Car

AVIS RENT-A-CAR 731 Grand Rent A Car Corp. d/b/a Avis Rent-A-Car and Local 481, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 21-CA-7571 February 8, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA of the National Labor Relations Act, as amended, by refusing to bargain in good faith with the Union, since on or about December 1966. Respondent, by its answer, de- nies that it violated Section 8(a)(5) and (1) of the Act. Pursuant to notice a hearing was held before me on Au- gust 1, 1967, in San Diego, California. All of the parties filed briefs within the time designated therefor. Upon the entire record' in this case and my observa- tion of the witnesses I make the following: FINDINGS OF FACT On October 17, 1967, Trial Examiner Stanley Gilbert issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. 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 and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that Grand Rent A Car Corp., d/b/a Avis Rent-A-Car, San Diego , California, its officers, agents, successors , and assigns , shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order. 1 The Trial Examiner erred in finding that the Union offered to cease bargaining for the rental representatives in August 1966, rather than in February 1967, but this inadvertence does not affect his conclusions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE STANLEY GILBERT, Trial Examiner: Based upon a charge filed April 27, 1967, by Local 481, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as the Union, the complaint herein was issued June 8, 1967. Said complaint alleges that Grand Rent A Car Corp. d/b/a Avis Rent-A-Car, hereinafter referred to as the Respondent or Company, violated Section 8(a)(5) and (1) 1. THE BUSINESS OF RESPONDENT Respondent Is a California corporation engaged in providing car rental and other transportation services to the general public in various cities, including San Diego, California. During the period of 12 months prior to the is- suance of the complaint, a representative period, Re- spondent received gross revenues exceeding $500,000 from the operation of the above services. During the same period, Respondent provided transportation services for firms located within the State of California, each of which firms during the same period sold and shipped goods valued in excess of $50,000 directly from California to firms and points located outside the State of California. During the past 12-month period, which period is representative, Respondent purchased tires, vehicles, and other supplies for use in its operations described above at a value in excess of $50,000 from suppliers located within the State of California, who purchased and received these same items directly from firms and points located outside the State of California. As is conceded by Respondent, it is, and at all times herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED As is conceded by Respondent , the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Essentially the issues to be resolved are not with respect to the facts, but rather as to what appropriate in- ferences may be drawn therefrom. Except for one matter discussed hereinbelow, there is virtually no controverted testimony or evidence in the record. Following is a sum- mary of the facts based upon exhibits received in evidence and uncontradicted testimony which is credited. In the conduct of its business of renting automobiles, Respondent operates two outlets in San Diego, one in the downtown area and the other at the airport. During the period material herein, there were six rental representa- tives at said two locations, the only employees and outlets of Respondent involved in this proceeding. It is conceded by the Respondent and it is found that the following is an appropriate bargaining unit: All rental representatives employed by Respondent at its San Diego, California, operations excluding all I Respondent attached certain exhibits to its brief Since said exhibits are not in the record, they have no evidentiary value and have not been considered in formulating this Decision 169 NLRB No. 36 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other employees, guards, watchmen, professional employees and supervisors as defined in the Act. The Respondent and the Union were parties to a col- lective-bargaining agreement with respect to the above- described bargaining unit, which expired on June 1, 1966. In March 1966 , the-Union sent a letter to the Company expressing its desire to negotiate a new agreement for the rental representatives and maintenance employees.2 On July 5, 1966, representatives of the Union and Respondent met, and in the course of said meeting a management representative stated that he was prepared to negotiate for the maintenance employees but not for the rental representatives , because he had a good-faith doubt that the Union represented a majority of the rental representatives . Shortly after the meeting the Union filed an unfair labor practice charge with the Board alleging an unlawful refusal to bargain in good faith with respect to the unit of rental representatives . Said charge was dismissed by the Board on the ground that the employer had a good-faith doubt of the Union's majority represen- tation. In early September , the Union obtained authoriza- tion cards from five of the six rental representatives em- ployed by Respondent in said unit . These cards were presented to the Company and it agreed to bargain with the Union as the representative of said bargaining unit. A meeting between representatives of the Union and management was held about the end of September 1966. In the course of said meeting, Robert D . Watson, person- nel director of Respondent , stated that he had a good- faith doubt that the Union represented a majority in the bargaining unit . The Union again filed a refusal -to-bar- gain charge with the Board in October 1966, in Case 21-CA-7739 . The case was settled by an agreement en- tered into between parties and approved by the Regional Director on November 25, 1966. By said agreement the Company agreed to bargain upon request with the Union with respect to the aforesaid bargaining unit of rental representatives. There were approximately 12 to 14 meetings between the Union and the Company thereafter for negotiations with respect to both the unit of rental representatives and the maintenance employees ' unit. On April 6, 1967, there was a meeting at which the Respondent presented a draft of a contract (covering the unit involved herein) which it called its "final" or "last" offer. The Union took the posi- tion that the agreement would be satisfactory if it con- tained provisions for a union shop and a wage increase. It was agreed to hold a further meeting on April 26, 1967. However, on April 11 , 1967, the employer filed a petition for an election in the aforesaid bargaining unit (Case 21-RM-1290). The representatives of management and the Union met again on April 26 as arranged . The Union's spokesman, Willard Kline, secretary-treasurer of the Union, asked Watson "if he had any changes regarding the company proposal," ostensibly with respect to draft of the contract offered by the Company on April 6. According to Kline's testimony , which is uncontradicted and credited, the fol- lowing ensued: He replied, no, that they still remained the same. I told him I had a strong inclination to agree with him, that perhaps we should sign this agreement. Mr. Watson said, "Well, I don't think that I can sign it today, because I don't know the cost factor; there is no effective date; there is no expiration date; and, therefore, I cannot sign it today." I told Mr. Watson it seemed strange to me that since this is his own proposal that he couldn't sign it, but I was perfectly willing that he could supply any dates he desired, put it in the agreement right then and there. He replied that he wasn 't prepared at that meeting to sign it, that he would be in a subsequent meeting. According to William J . Martin, a business representa- tive of the Union who was present at the meeting, the fol- lowing conversation also took place: Mr. Watson asked if our Union Bylaws required membership ratification, and Mr. Kline said that this was strictly a Union matter. Q. Did Mr. Kline say anything else about any ratification-excuse me-Mr. Watson? A. No. Then I asked Mr. Watson if this offer was contingent upon membership ratification , and he said yes. On the other hand, George D. Rasor, San Diego dis- trict manager for Respondent, who was also present at the meeting, testified with respect to the matter of ratifi- cation as follows: A. What I heard was this: I heard Mr. Watson ask the question was ratification necessary, was my un- derstanding ; was the Union going to ask the mem- bers about the proposal , and simply a question. And the answer was, as I recall , by Mr. Kline that that was his business and not ours. Q. And then what did I say? A. As I recall, you simply accepted this as a fact. Q. Did I indicate that the ratification was a requirement? A. None in the least, no. It is noted that Kline, in testifying as to what occurred during the course of the meeting, made no mention of a conversation with respect to ratification. It is possible, of course, that this might have been an inadvertant omis- sion. It appears from the testimony above of both Martin and Rasor that the matter of ratification was mentioned, but there is a contradiction in their testimony as to whether Respondent made ratification a condition. There is no contradiction in their testimony that when Watson inquired as to whether the Union intended to obtain mem- bership ratification, Kline rebuffed him for inquiring about ratification. It would appear that, if the Respondent had, in fact, made ratification a condition, as Martin testified, it would have been met with a similar, if not stronger, rebuff and that Kline would not have remained silent. However, according to Martin's testimony, Kline said nothing with respect to the proposal of such condi- tion. Consequently, it is concluded that there is a higher degree of probability that such a condition was not proposed and, therefore, Rasor's denial of Martin's testimony (with respect to Respondent's imposition of such condition) is credited. On May 10, 1967, during the course of a meeting with respect to the maintenance workers' bargaining unit, Wat- son delivered to the Union's representatives a proposed draft of a contract which was the same as the draft offered on April 6 with the exception that effective dates for vari- 2 The Union also represented a unit of maintenance employees which unit is not , however, involved in this proceeding AVIS RENT-A-CAR ous provisions such as wages and sundry employee benefits were incorporated. The effective dates for the wages and such benefits were made May 10, 1967. In ad- dition, the first paragraph of article X was changed. The draft of April 6 provided as follows: (a) This Agreement will be in effect from the date hereof to and including and will remain in ef- fect from year to year thereafter unless changed or terminated as hereinafter provided. The May 10 draft provided, instead, as follows: (a) This Agreement will be in effect from June 15, 1966 to and including June 14, 1967 and will remain in effect from year to year thereafter unless changed or terminated as hereinafter provided. Although both drafts of the agreement provided that it would remain in effect from year to year unless changed or terminated as thereafter provided, the revised agree- ment (offered on May 10) modified the previous draft by the substitution of a 30-day period prior to expiration, in- stead of a 60-day period, for notification of a desire to negotiate changes or modifications or for the termination of the agreement. Kline testified that since the meeting was for another purpose he did not examine the proposed draft. On the following day, he received a wire from Watson notifying him that the Respondent was giving him until May 14, 1967, to accept the draft of May 10. Concluding Findings One of the major arguments of the Respondent in its brief is that the Company had no duty to bargain with the Union since February 1, 1967, based upon admissions made by Kline in his testimony.3 Kline admitted that he told the rental representatives in August 1966 that the Union would no longer represent them if that be their desire, and that one of the rental agents informed him in February 1967 that she was speaking for the majority of the rental representatives and that they did not want the Union to represent them. These admissions do not sup- port Respondent's contention. It is noted that subsequent to the aforementioned August meeting the Union held with the rental representatives, five, of the six of them, signed authorization cards for the Union. As to the representation made by one of them in February 1967 that she was speaking for a majority of the rental representatives, the evidence of such a representation is rank hearsay and far from a valid basis for a finding as to the truth of her representation. There is no evidence in this record to support it.4 Also, there is nothing in the record which would support a finding that the Union no longer continued to represent the majority of the rental representatives. Based upon the settlement agreement approved by the Regional Director on November 25, 1966, the Respond- ent was obligated to bargain in good faith with the Union. The record supports a finding that Respondent did not fulfill this obligation. It is inferred from the totality of Respondent's conduct that it was seeking to avoid ar- riving at an agreement with the Union in order to dis- sipate its majority representation. On April 11, 1967, just 5 days after the Respondent submitted a draft of a proposed contract, it filed a petition 3 It was also based on material not in the record which has not been considered, since it is of no probative value. 4 Kline testified without contradiction that he told her that he had not 733 for an election. Then, on April 26, when the Union in- dicated it was willing to accept the contract submitted on April 6, the Respondent responded that it could not sign the agreement because its effective date, its expiration date, and the effective dates of various of its provisions had not been decided. When the union representative in- dicated that it was willing to have the Company insert whatever dates it desired, the company representative stated that he was not ready to do so until he had studied the cost involved and would offer a contract on May 10, 1967, with the dates inserted. Thus, the Respondent was faced with the necessity of offering a complete contract on May 10, and, most likely, anticipated that it would be accepted by the Union. It is inferred that the Respondent met this problem by presenting a contract which would be unacceptable or of little value to the Union. The May 10 contract proposal was, in my opinion, sub- stantially short of a meaningful contract. Although it pur- ported to be a contract extending for a year, from June 15, 1966, to June 14, 1967, it was, to all intents and pur- poses, a contract for approximately 35 days, from May 10 to June 14, 1967. Furthermore, the April 6 draft was modified in the May 10 draft by substituting a 30-day, in- stead of 60-day, notice of desire to negotiate changes or modifications or terminate the agreement. It would ap- pear that this substitution of a 30-day period and the notice to the Union that it was given only until May 14 to accept the contract was more than a mere coincidence. It is inferred that the limitation on time for acceptance (by May 14) was intended to give the Company enough time (30 days) before expiration of the contract (on June 14) to serve notice of a desire to terminate the contract or negotiate changes or modifications in the contract. In the light of the above-outlined circumstances, it is concluded that the Respondent refused to bargain in good faith with the Union, since on or about December 1966, in violation of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The unfair labor practice of the Respondent, set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It will be recommended that the Respondent be or- dered to cease and desist from engaging in the unfair labor practice found herein and take certain affirmative action designed to effectuate the policies of the Act. To remedy the Respondent's unlawful refusal to fulfill its statutory obligation to bargain in good faith with the Union, it will be recommended that it be ordered to bargain, upon request, with the Union as the exclusive representative of its employees in the appropriate unit described above, and, if an understanding is reached, embody such un- derstanding in a signed agreement. "heard from any of the other girls," and Respondent produced no evidence tending to support her representation to Kline. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.6 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All rental representatives employed by Respondent at its San Diego, California, operations, excluding all other employees, guards, watchmen, professional em- ployees, and supervisors as defined in the Act, constitute an appropriate unit for collective bargaining within the meaning of Section 9(b) of the Act. 4. By refusing, since on or about December 1966, to bargain in good faith with the Union as the exclusive bar- gaining representative of the employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. RECOMMENDED ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, and upon the foregoing findings of fact and conclusions of law, and the entire record in the case, it is ordered that Grand Rent A Car Corp. d/b/a Avis Rent-A-Car, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with Local 481, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of Respondent's employees in the unit described below, concerning rates of pay, wages, hours of employment, and other terms and conditions of employ- ment: All rental representatives employed by Respond- ent at its San Diego, California, operations, exclud- ing all other employees, guards, watchmen, profes- sional employees, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain in good faith with the above- named Union, as the exclusive representative of its em- ployees in the above-described unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its place of business in San Diego, Califor- nia, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices 5 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." 6 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT refuse to bargain in good faith with Local- 481, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive representative of our employees in the unit described below, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment: All rental representatives employed at our San Diego, California, operations, excluding all other employees, guards, watchmen, profes- sional employees, and supervisors as defined in the Act. WE WILL NOT, in any like or related manner, inter- fere with, restrain, or coerce employees in the exer- cise of their rights guaranteed in Section 7 of the Act. WE WILL, upon request, bargain in good faith with the above-named Union, as the exclusive representa- tive of our employees in the above-described unit, concerning rates of pay, wages, hours of employ- ment, and other terms and conditions of employment and, if an understanding is reacher, WE WILL embody such understanding in a signed agreement. GRAND RENT A CAR CORP. D/B/A Avis RENT-A-CAR (Employer) Dated By (Representative) (Title) This notice must remain posted -for 60 consecutive 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, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5229.