Thrifty Rent-A-Car

THRIFTY RENT-A-CAR Wolfrich Corporation d/b/a Thrifty Rent-A-Car and Freight Checkers, Clerical Employees & Helpers Local 856, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case 20-CA- 13283 May 26. 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENF:LLO AND TRUESDALE On March 6, 1978, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions to which the General Counsel responded. 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and the General Counsel's response and has decided to af- firm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Wolfrich Corporation d/b/a Thrifty Rent-A-Car, Millbrae. California. its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ;Respondent has excepted to certain credibility ndindings made hs (lie Administrative La.I Judge It is the Board's established pohic, nort Io oser- rule an Administrative t.as Judge's resolutions sith respecl It, credihilits unless the clear prepondera nce of ,ill of thie reles\nt esvidencC conritlces u that the resoilliions are incorreet Staondard Drl 1t'i/l Prolducrl. :-. 91 NLRB 544 (19'0). enfd. I8X F 2d 362 (C.A. .!951). We hae carclul)s exanminred he record and find nou basis for reversing his findings rhe ivpographical erroi in tihe alnount of the Respindenit', aniau.l gross incalne which occurs in sec II of the Admllnistrative Law Judges' I) cllson is corrected t, read $500.000 DECISION SAIFMFN Or OF IHE CAsE RICHARD J BON(FE. Administrative Law Judge: I'his case was heard before me in San Francisco, California, on Feb- ruary 7, 1978. The charge was filed August 18, 1977. b\ Freight C'heckers, Clerical Employees & Helpers Local 856, Internalional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter the Ulnion). I he complaint issued October 27, 1977, was amended January 23, 1978, and during the hearing, and alleges that Woolfrich Corporation d/b/a Thrifty Rent-A- Car (hereinafter Respondent) has violated Section 8(a)(l) of the National Labor Relations Act (hereinafter the Act). The parties were permitted during the hearing to intro- duce relevant evidence, examine and cross-examine wit- nesses, and argue orally. Posthearing briefs were waived. I JURISDICTION Respondent is a California corporation engaged in the automobile rental business in Millbrae, San Jose, and San Francisco. Its annual gross income exceeds $5 million, and in 1977 it purchased automobiles originating outside Cali- fornia of a value exceeding $300,000. Respondent is an employer engaged in and affecting commerce within the meaning of Section 2(2), and (6), and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within Section 2(5) of the Act. Issue The complaint alleges that Respondent violated Section 8(a)(1) in May 1977 when Wolfgang Kleczek, its owner and general manager, "threatened an employee that Re- spondent would not promote employees who become members of the Union or who engage in union and/or other protected concerted activities .... " The answer denies any wrongdoing. III THE A.LLEGED UNFAIR LABOR PRACTIC(E A. Facts BackAgrounLd. On May 4, 1977, two elections were held concerning certain of Respondent's Millbrae. San Jose, and San Francisco employees, one in a unit of garage per- sonnel at the three locations' and one in a unit of rental representatives and office clerical employees.2 The Union was the petitioning labor organization in each instance. Debra Cameron, a rental representative at Respondent's Millbrae location, was an observer for the Union in the election concerning rental representatives and office cleri- cal employees. On April 25, 1977. Cameron expressed to Kleczek her interest in becoming manager of Respondent's San Fran- cisco office. The incumbent manager was to be leaving in July. Kleczek responded that he could not promise her anything because of the coming elections, but nevertheless suggested that she transfer to the San Francisco office as a rental representative while the outgoing manager was still there to familiarize herself with his job. Kleczek told her to think it over and let him know after the election. A couple days after the election. Kleczek informed Cam- eron that, if she wished, she could be transferred to San e aie 20 R( 14157. The t nion was certified bh' the Board in a decision relrted itl 234 NLRB No. 76 i 1978) Case 20 R( 14146 Final dlsposition is aaiting a hearin~ in a chal- lenged ballot as ordered hi the Board in a decision reported at 234 Nt RB No 77 (14781 236 NLRB No. 52 493 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Francisco as a rental representative on a permanent basis, as a possible prelude to becoming manager. She replied she would think about it and let him know. The Friday after that, May 13, Cameron left a note on Kleczek's desk that she had decided not to do it. The conversation in question: The next Monday, May 16, Cameron and Kleczek had a conversation in which the) discussed her decision. Kleczek said that he did not know how she could be promoted to manager in San Francisco without knowing what the position entailed and whether she could get along with the employees there. Cameron responded that it would be too great a risk for her to trans- fer to San Francisco in the hope of becoming manager inasmuch as it would be difficult to obtain a transfer back to Millbrae should that hope not materialize. Kleczek countered to the effect that success in life demands risk- taking, to which Cameron said that she did not feel secure enough with Respondent to take the risk. Kleczek then stated that he knew that Cameron had been a strong supporter of the Union, and that Respondent could not have such a person in management. He elabo- rated that it was necessary that managers work for, not against, him; and that Cameron would have problems re- lating to the San Francisco employees as a management person in view of her recent joinder with them in support- ing the Union-that they would "resent" her for the "switchover" to management and would refuse to take or- ders from her. Kleczek further declared that he knew Cam- eron had voted for the Union, qualifying that this was a "complete assumption" on his part. The conversation end- ed with Kleczek stating that, while it was "possible" that Cameron's attitude about the Union had undergone a change since the election, he doubted it.3 B. Conclusion It is concluded that Kleczek violated Section 8(a)( ) sub- stantially as alleged by his several comments to Cameron on May 16 indicating that she could not be considered for the San Francisco manager's position because of her pro- union identification. E.g., The Dayton Tire & Rubber Com- pany., a Division of the Firestone Tire & Rubber Company, 216 NLRB 1003, 1005 (1975); M.B.D. Company. 193 NLRB 494. 501 (1971). CONCLUSIONS OF LAW 1. B) the comments of its owner and general manager, Wolfgang Kleczek, to Debra Cameron on May 16, 1977, indicating that she could not be considered for promotion to manager of Respondent's San Francisco office because of her prounion identification, as found herein, Respon- dent violated Section 8(a)(]) of the Act. This is C(ameron's credited version of the conversation. Kleczek. In his testimony conceded the possibilit) that the union was mentioned "I can- not recall it" but testified elsewhere: "I did not mention to her at all that because she was formerly favoring the Union I cannot promote her as man- ager." Cameron's demeanor was excellent and her recall of the incident was convincingly detailed. While there was nothing wrong with Kleczek's de- meanor, his recall was much less certain. 2. This unfair labor practice affects commerce within Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record,4 and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 5 The Respondent, Woolfrich Corporation d/b/a Thrifty Rent-A-Car, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Indicating to employees that they will not be consid- ered for promotion to management positions because of their past union sympathies or activities. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights protected by Section 7 of the Act. 2. Take this affirmative action: (a) Post at its offices in Millbrae, San Jose, and San Francisco, California, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 4 Errors in the transcript have been noted and corrected. All outstanding motions inconsistent with this recommended Order hereby are denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. [ In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT indicate to our employees that they will not be considered for promotion to management posi- tions because of their past union sympathies or activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights protected by the Act. WOLFRICH CORPORATION d/b/a THRIFTYr RENT-A-CAR 494