Thrifty Rent-A-Car

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