The Hertz Corp.

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.