Checker Cab Company of Virginia, Inc., d/b/a Avis Rent-A-Car

National Labor Relations Board - Board Decisions

Mar 16, 1982

260 N.L.R.B. 955 (N.L.R.B. 1982)

AVIS RENT-A-CAR
Checker Cab Company of Virginia, Inc., d/b/a Avis
Rent-A-Car and Local Lodge 1368 of District
Lodge 186 of the International Association of
Machinists and Aerospace Workers, AFL-CIO.
Cases 5-CA-11389 and 5-CA-11980
March 16, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On October 6, 1980, Administrative Law Judge
Thomas A. Ricci issued his Decision in this consol-
idated proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief; and Re-
spondent filed cross-exceptions and a supporting
brief and a brief in answer to the General Counsel's
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
I. As more fully described in the Decision of the
Administrative Law Judge, the record evidence
shows that a move toward union representation by
International Association of Machinists and Aero-
space Workers (IAM) began in August 1979, when
employees Marvel and Perdue contacted the busi-
ness representative for District 186 and, on August
11 or 12, began securing employee signatures on
union authorization cards. By August 17 some
eight employees, both rental and service agents,
had signed cards. The day before, August 16, the
Union had written a letter to Respondent claiming
representation status in a unit of counter and serv-
ice employees, offering to submit proof of majority
status, and requesting that Respondent recognize
and bargain with the Union. The Union's letter also
stated that this was a continuing request for recog-
nition. Respondent received the letter on August
18, and, by letter of August 20, refused the Union's
request. On August 23 the Union filed a petition
with the Board, requesting an election. In the
meantime, Respondent had begun, on August 20,
numerous operational changes which the General
Counsel alleges were in retaliation for such union
activity.
At the times material herein, there were approxi-
mately six rental agents employed by Respondent
at the Roanoke airport, dealing with customers and
renting cars; approximately eight service agents
260 NLRB No. 118
servicing the cars and trucks, and working between
the Roanoke airport and Respondent's nearby
office; two employees in the office renting trucks
and performing office functions; and two employ-
ees at White Sulphur Springs, West Virginia.
2. The Administrative Law Judge found, and we
agree, for the reasons stated by him, that Respond-
ent, by its systematic interrogation of its employees
concerning their own and other employees' union
activity; by threatening employees with loss of
jobs; by discharging employees Hale and McBride;
by threatening to close its plant; by demanding that
employees withdraw their union authorization
cards; by offering monetary rewards to its employ-
ees to induce them to inform on the identity and
union activities of fellow employees: and by creat-
ing the impression that it was engaged in surveil-
lance of employees' union activity, engaged in
unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
The Administrative Law Judge also found that
Respondent retaliated against the employees as a
total group in two monetary respects: failing to dis-
tribute "Avis inspection" prize money contrary to
its past practice; and failing to pay employees the
promised "bonus" money for increased insurance
sales, contrary to its pledge. We agree also with
these findings.
3. The General Counsel excepts, however, to the
failure of the Administrative Law Judge to provide
a remedial order concerning these two monetary
violations of Section 8(a)(3); to the failure of the
Administrative Law Judge to find 8(a)(3) violations
in the discharge of employee Perdue, the transfers
of Perdue and Marvel, and the reductions in hours
of Perdue, McBride, and Marvel; to the failure to
find June Hannabas was a supervisor during the
crucial time period herein; and to the failure to find
that the Union represented a majority of the unit
employees on August 18. The General Counsel fur-
ther excepts to the failure of the Administrative
Law Judge to find that respondent violated Section
8(a)(5), and to include a Gissel bargaining order' as
a part of his Decision. We find merit in these ex-
ceptions.
We start with Respondent's knowledge of union
activity, centered principally among its rental
clerks at the Roanoke airport, and the conclusion
of the Administrative Law Judge that it was Re-
spondent's intention to retaliate against these union
supporters as a group. The conversations between
employees and Respondent officials, including Han-
nabas (whom we find to be a supervisor, infra), in-
dicate clearly that Respondent was well aware of
I R. /i X A,, ),i,. h,i ttf Ai S - ,I i-,0
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the union activities among its employees and of
who was involved in such activities. As Fannin
stated, Respondent "would do anything to keep the
Union out of this Company," including, as the
record shows, interrogating employees, discharging
employees and hiring others, threatening employ-
ees, withholding prize money and earned "insur-
ance sale bonuses," and threatening to close its
business.
With these facts in mind, the Administrative
Law Judge did not accept Respondent's reasoning
for the discharges of Hale and McBride, its transfer
of office employee Blair to the airport counter, and
its alleged financial difficulty. Similarly, we cannot
accept Respondent's argument concerning Perdue's
discharge, the transfers of Perdue and Marvel, and
the reductions in hours of Perdue, McBride, and
Marvel. We note, initially, that Marvel and Perdue
were the two employees who contacted the Union,
as well as those principally involved in the secur-
ing of authorization cards, all of which was known
to Respondent. During the week following the
Union's demand for recognition, Hale and McBride
were terminated, Marvel was transferred to the
night shift, and Perdue was transferred to the night
shift and then had her hours reduced. Respondent
then withheld the monetary rewards and bonuses
from the employees, and, some time later, terminat-
ed Perdue and reduced Marvel's hours from 40 to
14.
In defense of these actions, Respondent contends
that it needed to accumulate more cash, and that its
moves were strictly in accordance with seniority.
The Administrative Law Judge found, and the
record shows, that, at the time of these personnel
actions, Respondent had an increase in revenue in
its car rental business; granted raises to various em-
ployees; attempted to purchase an additional car
franchise; and hired additional service agents at
higher rates of pay than those paid the old service
agents. Further, as to Respondent's argument re-
garding seniority, the record shows that there were
several service agents who had less seniority than
the rental agents who were terminated or trans-
ferred. Nor is there any showing that the terminat-
ed and transferred rental agents were incapable of
performing service agent jobs. Indeed, at White
Sulphur Springs, the record shows that one em-
ployee was performing both car rental and service
responsibilities. In view of these facts, we cannot
ignore Fannin's statement that Respondent "would
do anything to keep the Union out," and the total-
ity of its conduct in opposition to the Union.
Particularly probative is Respondent's view that
Perdue and Marvel were considered union instiga-
tors. When we consider this in the context of Re-
spondent's other unlawful antiunion conduct, we
are impelled to conclude that the changes in hours
for Perdue and Marvel, the reduction in hours for
Perdue, Marvel, and McBride, and finally, in Per-
due's case, discharge, constituted violations of
Section 8(a)(3) and (1) of the Act.
Although the Administrative Law Judge found
that Respondent further retaliated against the em-
ployees as a total group in two monetary respects,
he failed to issue an appropriate remedy. Thus, Re-
spondent refused to distribute a $500 "Avis inspec-
tion" prize and withheld bonus money, or commis-
sions, from those employees who increased their in-
surance sales, contrary to its pledge to the employ-
ees. We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(3) by with-
holding these moneys and we shall order an appro-
priate remedy.
4. The Union would limit the appropriate unit to
rental agents working at the Roanoke airport
counter, and service agents at the airport and at
Respondent's office. Respondent would include its
office employees; employee Hannabas, who Re-
spondent contends is no longer a supervisor; the
accountant Givens; and employees working at
White Sulphur Springs. The General Counsel
would exclude Hannabas as a supervisor during the
critical time period herein, exclude Givens as a
casual employee, and exclude the employees at
White Sulphur Springs on the grounds that they
lack a community of interest with unit employees.
We agree with the General Counsel.
As to employee Hannabas the General Counsel
excepts to the failure to find her to be a supervisor.
The Administrative Law Judge found that this em-
ployee was not a supervisor during the times rele-
vant herein, and therefore was a part of the appro-
priate unit for purposes of determining majority
status. We disagree. Uncontested testimony shows
that Hannabas had been working for Respondent
since 1972; first as a rental agent at the airport
counter, later at Respondent's office, and finally re-
turning to the airport facility. Prior to Hannabas'
transfer to the office, she had served as a supervi-
sor at the airport counter. During those years she
had been a supervisor, she wore a badge which la-
beled her as such, and performed supervisory
duties. Upon her transfer to the office she contin-
ued to handle customer complaints and personnel
disputes, as well as decide which customers re-
ceived "discount" rates. Also, her replacement was
told that Hannabas would be her supervisor. Her
employment benefits continued to be different, and
she continued to grant time off. Accordingly, we
find that Hannabas continued to exercise supervi-
956
AV\IS RIN I -A-CAR
sory authority while working in the office. 2 She
was not transferred back to the counter until
August 22, and therefore was a supervisor on the
critical date. Accordingly, we shall exclude her
from the unit."
With respect to Givens, the record shows that
she worked irregular hours auditing Respondent's
books, usually at night, did not interchange with
other employees, and had little, if any, contact with
them. Accordingly, we shall exclude her from the
unit as a casual employee lacking a community of
interest with unit employees.4
The record also shows little interchange between
those employees working in White Sulphur Springs
and those in Roanoke, some 85 miles away. Work-
ing conditions are dissimilar; and one employee is a
supervisor and one works as a dual rental-service
agent. We find that there is no community of inter-
est among the employees at the two locations and.
accordingly, will exclude those employees at White
Sulphur Springs.5
We find, therefore, the appropriate unit to con-
sist of the rental agents, service agents, and office
employees employed at Respondent's Roanoke fa-
cility on August 18, the date on which Respondent
received the Union's demand for recognition. On
this date, there were 13 employees in the appropri-
ate unit, excluding Hannabas, Givens, and the
White Sulphur Springs employees. As of August
18, seven of Respondent's employees had signed
union cards, authorizing the Union to represent
them for collective-bargaining purposes, and the
Union had written Respondent informing it of this
fact. During the time material herein, therefore, the
Union represented 7 of 13 employees, a majority of
employees in the unit found appropriate.'
In view of our findings above, we conclude that
the Union represented a majority of Respondent's
employees as of August 18, 1980.7
2 Little Reek C(ruar d BasAkr Co . 227 NLRB 144)6 (177); 11'7 I ighting
irturs i, Dirson V/ 11I (Corpoirution, 249 NLRB 441. 442 (1980)
' he General Counsel alleges that Hannabas engaged in numerous
8(a)(1) violations HiovseCer, the Adminisiralike Lass Judge did notI pass
on these allegations because of his finding that Hannaias sa;s not a super-
'isor We also consider it unilecessar Ito pass on the allegationll regard-
ing Hannabas because numerous l, I1latlins of the Act hase been found
against Respondent and its agents and superisor. and an! additional sio-
lations would not affect our remedy and Order
' Self Relhunce Ukrainian .4-rrruan Cw)pratilc i,4lo.iatiionl Inc . d b,;u
Certified biids. 188 NL RB t38 (1971)
" Cbvetr )Fork edicalo Scriwc, In . 2(X) Nl RB 291, 202 ( 1972
In so finding. we place no reliance on. nor do se count, the authorl-
zation card signed hb employee Hale. since the e',idence establishes that
the card "as not signed until after August 19
Respondent contends that Local Lo dge 138 affiliated itlh Districl
L odge 186 of the Intcrllational Assciallion of Machiniss s as tnoI authlor
ized to be the bargaining represc tiatie of aln of Respondent's emplo!5
ees. inasmuch ias the demand foir recognlitlot \sdas based on authorliatllol
cards designating the Internialliollal is ollectice-hargaiililng reprcsentalisv
We find this colntltiello til be sx ltloul merit The Boird hats long held
that authortiation Lards .arc ilOt 9iXdiid mnerels hbe. als the Ilnternatiolal,
The record shows that Respondent embarked on
its course of unlawful conduct on August 20, short-
ly after it received the Union's letter. Subsequently.
it discharged employees; reduced their working
hours; transferred them to less desirable shifts;
threatened them with loss of jobs; demanded that
they get their union authorization cards back;
threatened to close its operations; withheld prom-
ised bonus money and prize money; and interrogat-
ed them repeatedly about their union sympathies
and those of their fellow workers. With respect to
the contention of the General Counsel that the ac-
tions of Respondent justify the issuance of a reme-
dial bargaining order within N.L.R.B. v. Gissel
Packing Co., Inc.,8 the Board has considered, inter
alia, the types, repetition, and effects of the unfair
labor practices involved.
We note initially that Respondent's actions were
directed exclusively against the relatively small unit
of 13 employees. Within I week of the date of the
Union's demand for recognition, Respondent,
within this group, had terminated employees Hale
and McBride; transferred Perdue and Marvel to the
night shift; and reduced the working hours of
Perdue and McBride. Three months later, Re-
spondent discharged Perdue and reduced Marvel's
hours. The Board has held that discriminatory dis-
charges because of union activity are an extremely
effective form of curtailing union activity, which
involve the most basic rights of employees under
the Act.9 Such terminations can only give a lasting
message to the employees that loss of their jobs is
the price to be paid for the exercise of their
Section 7 rights. The impact is especially severe
when the unit is small and the discrimination is lim-
ited to the well-known activists, as here.
Additionally, Respondent threatened Craft and
Hale with closure of the Company and interrogat-
ed Hale, Craft, Blair, and Moore regarding their
union sympathies, and those of their fellow em-
ployees. Fannin also stated to service agent Neal,
after asking if he had gotten his union authorization
card back, "Well, we are not going to have that
kind of stuff around here." Similarly, in a conversa-
tion with Craft, Ottaway, and subsequently Fannin,
stated to her, "You don't know how serious we are
about keeping the Union out of this company."
The Board and courts have held a plant-closure
threat is one of "the most potent weapons of em-
r.alher than the ubsilhidiars hit.h seeks rec. ognillton, is named as bargain-
iilg rcprcscntatlxe ol the card Cat,. Inc 217 NL RB 798 (19781
3935 L S 575. t14 (1q9lq)
I)rug Packagc ( ompan, Inci 228 Ni RB 108 (1977) I'he Kroger Cornm-
patni. 22 NI RlI 14 (Iq1771
957
I) CISI()NS (I: NA I I()NAI. I AB(OR RIA I ()IONS 1()ARI)
ployer interference with the rights of employees to
organize."
The record is also clear that, in addition to the
foregoing unfair labor practices, Respondent cre-
ated the impression of surveillance, abandoned its
past practice of sharing the Avis "contest prize"
money with the employees, and did not grant the
insurance sales commissions that it had promised
those employees who increased insurance sales.
What distinguishes this case is the timing, type,
extent, and constant repetition of the Respondent's
violations. Discharges, threats of discharge, threats
to close the Company down, frequent solicitations
to surveil upon fellow employees can only convey
to the employees Respondent's implacable and un-
alterable opposition to the rights of its employees
to unionize under Section 7 of the Act.
A careful balancing of all the considerations
herein indicates that our traditional remedies would
not be effective in dissipating the coercive effects
of the unfair labor practices here involved; that an
uncoerced employee sentiment could not now be
obtained through the election process. Thus, this
case comes within the principles set forth by the
Supreme Court in its Gissel decision, supra.
Based on the foregoing, and the entire record in
this case, we find that by refusing the bargaining
request of the Union, which represented a majority
of its employees in an appropriate unit, and thereaf-
ter engaging in the flagrant unfair labor practices
described above, Respondent has violated Section
8(a)(5) and (1) of the Act. We shall date the bar-
gaining obligation as of August 20, 1979, the date
Respondent refused the Union's demand for recog-
nition and embarked on its course of unlawful con-
duct. '
5. Inasmuch as we have found merit in many of
the exceptions of the General Counsel, including
the failure of the Administrative Law Judge to find
a violation of Section 8(a)(5) of the Act, the fol-
lowing Order12 and notice are substituted for those
of the Administrative Law Judge. The Conclusions
of Law and Remedy have also been changed to re-
flect the disposition of the various issues in this
case.
CONCI USIONS 01: LAW
1. Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
"' Chemvcr Laboruh orier . In, E A .I R .B 497 : 2d 445, 448 (Sth Clr
1974).
l TIrading Port Inc., 219 NL RB 298 (1975)
' In view of Ihe egregious nature *of Respondent's conduct, "e are of
the opinion that a hroad order herein is .arranted See HluArnor Iorodr,
Inc.. 242 NI RB 1357 (1979)
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. An appropriate unit of Respondent's employ-
ees for purposes of collective bargaining is a unit of
all rental agents, service agents, and office employ-
ees employed at Respondent's Roanoke, Virginia,
airport facility and service and office areas exclud-
ing all other employees, guards and supervisors as
defined in the Act.
4. Since August 18, 1979, Local Lodge 1368 of
District Lodge 186 of the International Association
of Machinists and Aerospace Workers, AFL-CIO,
has been and is the exclusive representative of all
employees in the aforesaid bargaining unit for pur-
poses of collective bargaining within the meaning
of Section 9(a) of the Act and, by refusing to bar-
gain with the Union since on and after August 20,
1979, Respondent has violated Section 8(a)(5) and
(1) of the Act.
5. By discharging Loretta Hale, Sherry McBride,
and Cynthia Perdue because of their union activi-
ties, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
6. By reducing the working hours of Sherry
McBride, Wanda Marvel, and Cynthia Perdue be-
cause of their union activities, and by transferring
Wanda Marvel and Cynthia Perdue to the night
shift because of their union activities, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the
Act.
7. By withholding prize money and bonuses from
the employees, because of their union activities,
Respondent has engaged in and is engaging in
unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
8. By the following conduct, Respondent en-
gaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act:
(a) By coercively interrogating its employees
about their and other employees' union activities
and sympathies.
(b) By offering monetary rewards to its employ-
ees as inducements for them to inform Respondent
about the identity and union activities of other
prounion employees.
(c) By threatening to discharge employees in re-
taliation for their union activities.
(d) By threatening to discontinue its business be-
cause of such union activities by its employees.
(e) By creating the impression that it was en-
gaged in the surveillance of the union activities of
its employees.
AV IS RI NI-A-C( AR
9. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
TimI R i.a l l)
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the Act,
we shall order that it offer Loretta Hale, Sherry
McBride, and Cynthia Perdue reinstatement and
make them whole for any loss of earnings. Re-
spondent is also ordered to cease and desist from
committing the types of unfair labor practices it
has been engaged in; to make those employees dis-
criminated against regarding the prize money and
inspection money whole for the discrimination
against them; to bargain collectively with the
Union as the exclusive representative of all em-
ployees in the appropriate unit, and, if an under-
standing is reached, embody such understanding in
a signed agreement; and to stop violating the stat-
ute in any other manner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Checker Cab Company of Virginia, Inc., d/b/a
Avis Rent-A-Car, Roanoke, Virginia, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating its employees concerning their
or other employees' union membership, affiliation,
views, sympathies, activities, or other protected
concerted activities.
(b) Creating the impression of surveillance of its
employees' union or other protected concerted ac-
tivities under the Act.
(c) Threatening the cancellation or diminution of
any existing job-related economic benefit or work-
ing condition privilege, or threatening adverse al-
teration of job status, or threatening closure or dis-
continuance of its business or threatening any other
form of reprisal because of the union activities of
its employees.
(d) Discharging or altering the job status of em-
ployees because of their union activities or other
exercise of their rights under the National Labor
Relations Act.
(e) Refusing to recognize and bargain with Local
Lodge 1368 of District Lodge 186, International
Association of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive representative of its
employees in the following appropriate unit:
All rental agents, service agents, and office
employees employed at Respondent's Roa-
noke, Virginia, airport facility and service and
office areas excluding all other employees,
guards and supervisors as defined in the Act.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Recognize, effective from August 20, 1980,
and, upon request, bargain collectively with Local
Lodge 1368 of District Lodge 186, International
Association of Machinists and Aerospace Workers,
AFL CIO, as the exclusive representative of all
employees in the appropriate unit described above,
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Offer to Loretta Hale, Sherry McBride, and
Cynthia Perdue immediate and full reinstatement to
their former positions or, if such positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed.
(c) Make Loretta Hale, Sherry McBride, Cynthia
Perdue, and Wanda Marvel whole for any loss of
pay or any benefits they may have suffered by
reason of the Respondent's discrimination against
them. Backpay is to be computed as described in F.
W Woolworth Company, 90 NLRB 289 (1950), with
interest thereon to be computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977). 13
(d) Make whole, with interest, those employees
who suffered losses in the discriminatory distribu-
tion of the bonus insurance money and the inspec-
tion prize money.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its place of business in Roanoke, Vir-
ginia, copies of the attached notice marked "Ap-
pendix." ' Copies of said notice, on forms provided
See, gcnclrally, Ii% Plumbing & IHeating C(o. 138 NLRKH 716 (1hh6)
Mcillht r Jenrkils e 1ould s Cmp illC Interet ili accordanlle aith his partial
dissent II )/'lPc .lcdulS i (C orporutiion. 2t50 Ni Rli 14t, It80))
'1 Inle c\cl thit this ()rdCr i, enforced hy a Judgnitl of a Iiiltttd
Stlale, ( o'lrt tI .\ppc;i.I the Svirds In the ntllce reading "Po'ted hi
()rdCr I [he NltltOliIl I .hor Relations Board" shall read "',1,Ced I['rLt-i
a.nt I0 i JitiIgntI it of Ic U111 i1cd S.sic, ('Cu irt of AppA. t. iforiirtl a.1
()rdcr of It. Naillonal I ahor R tlltii Hi Boaird
49 5
I) CISI()NS ()F1 NA I IO()NAI. I AB()R RIFL.A IO)NS B()ARI)
by the Regional Director for Region 5, after being
duly signed by its representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
APPENDIX
NoTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAI. LABOR RFA.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE Wil.l NO'I discourage membership in
Local Lodge 1368 of District Lodge 186 of
the International Association of Machinists and
Aerospace workers, AFL-CIO, or in any
other labor organization of our employees, by
discharging any of our employees because of
their membership in, or activities on behalf of,
the above-named or any other labor organiza-
tion.
WE WILl NOT coercively interrogate our
employees about their union activities.
WE WIL.. NOT interrogate employees about
the union activities of their fellow workers.
WE WILL NOT threaten to discharge employ-
ees in retaliation for their union activities.
WE WILL NOT threaten to discontinue our
entire business because of the union activities
of our employees.
WE WILL NOT create the impression that we
are surveilling the union activities of our em-
ployees.
WE WILL NOT demand that our employees
get their union authorization cards back in
order to keep their jobs.
WE WILL NOT deny to our employees their
share of the insurance bonus money and the
inspection prize contest money, and will pay
them the amount we have unlawfully withheld
from them, with interest.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization; to
join Local Lodge 1368 of District Lodge 186
of the International Association of Machinists
and Aerospace Workers, AFL-CIO, or any
other labor organization: to bargain collective-
ly through representatives of their own choos-
ing; and to engage in other concerted activities
for the purpose of collective bargaining or
other mutual aid or protection; or to refrain
from any and all such activities.
WE WltI. offer Loretta Hale, Sherry
McBride, and Cynthia Perdue immediate and
full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges previ-
ously enjoyed.
WE Wltl. make whole Loretta Hale, Sherry
McBride, Cynthia Perdue, and Wanda Marvel
for any loss of pay they may have suffered as
a result of the discrimination against them,
with interest.
Wi-l Wil. recognize effective from August
20, 1980, and, upon request, bargain collective-
ly and in good faith with Local Lodge 1368 of
District Lodge 186 of the International Associ-
ation of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive bargaining repre-
sentative of all the employees in the bargaining
unit described below, and, if an understanding
is reached, embody such understanding in a
signed agreement. The appropriate bargaining
unit is:
All rental agents, service and office employ-
ees employed by the Employer at its Roa-
noke, Virginia, airport facility and service
and office areas adjacent thereto, excluding
all other employees, guards and supervisors
as defined in the Act.
CHECKER CAB COMPANY OF VIRGIN-
IA, INC., D/B/A Avis RENT-A-CAR
DECISION
STIATI EMEIN I OF IHE CASF
THOMAS A. RIccI, Administrtive Law Judge: A
hearing in this proceeding was held at Roanoke, Virgin-
ia, on May 27, 28, and 29, 1980, on separate complaints
by the General Counsel against Checker Cab Company
of Virginia, Inc., d/b/a Avis Rent-A-Car, herein called
the Respondent or the Company. The first complaint
(Case 5-CA-11389) issued on October 15, 1979, upon a
charge filed on October 1, 1979, by Local Lodge 1368 of
District Lodge 186 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, herein
called the Union. The second complaint (Case 5-CA-
AVIS RENT-A-CAR
11980) issued on April 10, 1980, upon a charge filed by
the same labor organization on February 29, 1980. The
principal issues presented are whether the Respondent
violated Section 8(a)(3) of the National Labor Relations
Act, as amended, by discriminating against a number of
employees in the course of their employment, and
Section 8(a)(5) by unlawfully refusing to bargain with
the Union. Briefs were filed by the General Counsel and
the Respondent.
Upon the entire record, and from my observation of
the witnesses, I make the following:
FINDINGCS oi FACT
I. 'ItHI BUSINESS OF I HI RESPONDFNI
Checker Cab Company of Virginia, Inc., d/b/a Avis
Rent-A-Car, a Virginia corporation, is engaged in the
rental and sale of automobiles and trucks in Roanoke,
Virginia, and in White Sulphur Springs, West Virginia.
During the 12-month period preceding issuance of the
first complaint, a representative period, it received gross
revenues in excess of $50,0(X), and purchased and re-
ceived, in interstate commerce, products valued in excess
of $50,000. 1 find that the Respondent is engaged in
commerce within the meaning of the Act.
II. THI LABOR ORGANIZA rION INVOI.LVE)
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
iL. TFHE UNFAIR LABOR PRACtIC[iS
A. .4 Picture of the Case
Like other Avis auto rental operations, this Company
too is in the business of renting passenger cars and trucks
to the public. Its employees, classified in three catego-
ries-rental agents, service agents, and office personnel-
work in three locations, all either in the Roanoke, Vir-
ginia, area or in White Sulphur Springs, West Virginia.
The "office" is a separate small structure with a vehicle-
serving area, about a mile away from the Roanoke air-
port. The rental agents deal with customers, arranging
the rental agreements and related documents: the service
agents take care of the vehicles or trucks-checking the
machinery, changing oil, adding water, washing, etc.;
and the office girls do the usual bookkeeping and record-
ing. At the time of the events, in August and September
1979, there were two rental agents stationed at White
Sulphur Springs, two office girls in the office, about six
or seven rental agents in the airport, and perhaps eight
service agents who worked both at the airport and near
the office.
In mid-August a move towards representation by the
IAM began among the employees; two of them first
talked about it in their homes on or about August 5, con-
tact with a business agent of the IAM was first made on
August 7, and some of the girls started signing authoriza-
tion cards in favor of the Union on August II or 12. By
August 17 eight employees, both rental and service
agents, had signed cards, and on August 16 the Union
wrote a letter to the Respondent, claiming representation
status and demanding recognition. The Company re-
ceived the letter on August 18. and by letter dated
August 20 refused recognition and suggested a Board
election instead. On August 23 the Union filed a petition
with the Board, requesting an election (Case 5-RC-
10950).
Meanwhile, on August 20, and again on or about
August 24, the Respondent made certain changes of per-
sonnel among the employees involved-transfer of em-
ployees to and from the office, change of shift assign-
ments from day to evening, reduction of hours in some
cases, and even discharge of two agents. In consequence
of all this the Union filed an unfair labor practice charge
on August 31, and from that day on all action under the
representation election petition was discontinued. With
further changes in personnel made by the Company
later, the Union filed a second charge on February 29,
1980.
The Regional Director issued a separate complaint on
each of the two charges-the first in October and the
second in April 1980; each sets out in detail lists of unfair
labor practices. On May 13, 2 weeks before the start of
the scheduled hearing, the General Counsel issued a
written amendment to each of the complaints, adding
further allegations of illegal conduct. The Respondent's
separate answers to each of these formalized complaints
are best described as complete denial of each and every
illegal act alleged.
With the complaint faulting virtually every personnel
action taken by the Respondent after it learned of the
union activity, it is difficult to evaluate each separate act
of "discrimination" alleged and test its legality as an
unfair labor practice in itself. The overall picture is tied
into one bundle, as it were, with every detailed compo-
nent put together and said to support each and every
other part. As the General Counsel's brief shows, the
basic idea of the complaint is that, because the Respond-
ent was in fact opposed to the Union, and because its
agents in fact did commit a number of violations of
Section 8(a)(l)--interrogations and threats-it follows
that any changes in operations made after the start of the
union movement must have been illegally motivated.
Whether or not certain specific allegations are or are
not supported by definitive proof can be seen clearly. As
to most, however, there is a blurring of ideas-some-
times a reasoning by presumption. Indeed, the General
Counsel candidly admits there is a paucity of "direct"
evidence of unlawful discrimination. I think it best,
therefore, to set the major questions in focus, to consider
a few major questions that can be evaluated in isolation,
and then to look at the rest of the case.
1. What is the scope of the appropriate bargaining
unit? The Union says it must be limited to the employees
at the Roanoke airport, including both rental and service
agents, plus those service agents who work at, or adja-
cent to, the office a mile away. In disagreement, the
Company contends that the office employees, as well as
the two agents working at the White Sulphur Springs lo-
cation, must also be included. This question is very mate-
rial, if only because the no less important questions of
majority status depend on the answer.
461
DECISIONS ()F NATIONAL LAB()R RELATIONS BOARD
2. When exactly was the critical moment of demand
and refusal, and was the Union at such determinative
time authorized to bargain by a majority of the employ-
ees? This question of majority includes subordinate issues
of inclusion or exclusion of particular employees for one
reason or another.
3. The last question, of course, in this refusal-to-bar-
gain aspect of the case, is: Did the Respondent commit
such pervasive unfair labor practices as to preclude any
rational expectation that a fair election among the em-
ployees can possibly take place in the foreseeable future,
so that now an affirmative order to bargain in remedy
must issue? See NL.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969).
4. Three employees were discharged-Hale, McBride,
and Perdue. Each is alleged to have suffered discrimina-
tion in violation of Section 8(a)(3) of the Act because of
her activities in favor of the Union. As to each of these
women there is presented the classic circumstantial evi-
dence case. In the absence of direct evidence of illegal
motivation, you look at all the related facts and decide
whether the affirmative burden resting upon the General
Counsel to prove the violations has been met. And, again
as always, each party to the inference case points to
those facts supportive of his own view of the case.
B. Evidence and Issues
The dispute over June Hannabas' asserted supervisory
status comes first because the answer to that question
bears a relationship to and sheds light upon other issues
of the case. More important, there is much testimony by
clearly rank-and-file employees putting very antiunion
statements in her mouth, and some of the 8(a)(3) part of
the case rests upon her statements. If, as the Respondent
contends, she was not a supervisor at the time of the
events, the basic support of some of the complaint is
weakened, for, however vitriolic the attitude of a dissi-
dent where unionism is concerned, it cannot be charged
to the employer.
Hannabas has been working for this Company-almost
always as a rental agent-since 1972; none of all the
other rental agents has been employed more than a year
or two at most. Geoffrey Ottaway, the general manager
and now individual owner of the Company, bought it in
April 1979 from its prior owner. He had been its general
manager 12 years by that time, and Hannabas had, up to
that point, always worked at the airport counter. When
Ottaway took over, he made a change and transferred
her to the office, where she worked with another girl.
Work continued at the airport with five or six other
rental agents.
In early July Hannabas developed a disc problem in
her back and was medically advised she had to stop
doing office work. She asked to be sent back to the air-
port counter and Ottaway said he would oblige her as
soon as he could arrange the change. In fact, on or about
July 15 he held a meeting of all the rental agents and
told them this was going to happen. On August 22 Han-
nabas was transferred back to the airport and has been
working there since as a rental agent. The Respondent
admits that before leaving the airport in April Hannabas
had supervisory status, but it disputes the General Coun-
sel's contention that she continued to exercise supervi-
sory authority, even over the airport aides a mile away,
while she was in the office and after returning.
I find, on the total record, that Hannabas was not a su-
pervisor within the meaning of the Act either when in
the office or after returning to the airport. There is much
evidence, offered by the General Counsel, about how she
functioned before April 1979, but it is all irrelevant to
the present question. The suggestion, argued in the brief,
that because Hannabas had certain authority then, it fol-
lows she must also have had it later, is of little persua-
sion. At the office she did bookkeeping and maintained
the usual records of the rental operations, just like the
girl who worked with her. After coming to the counter,
she simply resumed the counter work exactly as she had
done before and as the other girls were doing. On her
first day back she wore her old suit badge with the word
"supervisor" on it; in the office no uniforms are worn at
all. Sometime later, the boss told her to take it off and
she did.
Some witnesses said they were told, when Hannabas
returned to the airport, that she would again be a super-
visor. Other witnesses denied this. But neither a tempo-
rary label pinned on her nor purely conclusionary asser-
tions by the prosecution witnesses can take the place of
direct evidence about what Hannabas did and the precise
extent or nature of her authority. A revealing fact, in the
face of the repeated assertions by the General Counsel
witnesses now, is that while the two complaints, issued
in October 1979 and in February 1980, list General Man-
ager Ottaway and Assistant Manager Omer Fannin as
agents of the Company for whose contact the Respond-
ent is accountable, it was not until May 13, 2 weeks
before the start of the hearing, that Hannabas was insert-
ed as a supervisor at all. It was an afterthought. Cynthia
Perdue was discharged in November, and her dismissal is
one of the major issues of this case. In contradiction with
her testimony, in her two investigation affidavits-given
in September and in March-she said, "My immediate
supervisor is Omer Fannin." Another witness, Diane
Craft, also testified her immediate supervisor was Hanna-
bas. But her affidavit, dated March 16, says her "immedi-
ate supervisor" was Fannin.'
' 'Ihe most nearly perfect violation of Sec. 8(a)(I)-if such it was by a
supervisor-came on Saturday. August 25. 3 days after Hannabas had re-
turned to the airport desk There is testimony by some employees about
management telling Perdue henceforth she could no longer go to the
toilet just because she had to. she could only go during the allotted break
period That Manager Fannin said this to her I believe, for he said a
number of things he should not have said If the reason for imposing this
restriction at that moment was in retaliation for the union activity going
rn. I suppose it must be found to have been an unfair labor practice In
any CeCent, Kim worley. Who works for Budget Rent-A-Car in the Roa-
noke airport, testified that on that day. 3 days after Hannahas had re-
turned there, she heard her say "that that [the new order not to go to the
toilel rin cormpany tirile] was nol for everyone but that was Just for the
urlirlo people because Geoff [Otlasay] and Omer [Fanninl were trying to
make it harder on them . She said she knew who the union people
ssere anid that Geoff and Omer knew who they were And she named
hien: there was Wanda [Marsell and Cindi [Perduel and Diane [Crafti
land Riley arid Sherry [McBridel."' Thus four of the people she named are
the rlnes stid Io have suffered illegal discrimination at the hands of the
( ompnpan In her brief the (icneral Counsel says those affidasits--the
'worrll statenents by twro uronlell, Perdue and Craft. that Fannin was
Continued
962
AVIS RENI-A-CAR
While in the office, a mile away, of course, Hannabas
could hardly be called the super isor of airport employ-
ees. There is evidence that she occasionally used to pitch
in there for an absent employee, but it appears uncontra-
dicted that while there she did no more than the old
rental agent work she used to do. And as to the only
other office girl with her in the office, there is also no
evidence of supervision in fact.
In sum, there is nothing to show-indeed, the contrary
testimony stands unquestioned on the record-that Han-
nabas had any voice in, or recommended, changes in
pay, hiring, discipline, or any other matter affecting the
employees' status or benefits. Rather, there is direct evi-
dence of what it is she used to do, and still does, which,
in the opinion of the General Counsel, makes her a su-
pervisor. The rental agents kept talking about "prob-
lems," how they had been told to take their problems to
Hannabas, and how they did that. But all they specified,
when asked to explain their use of the word, were two
problems. Some customers who come to the counter
enjoy special rates. Whenever the girl in attendance does
not know, or is not sure, whether that man is entitled to
the rebate, she asks Hannabas or, when Hannabas was at
the office, she called her on the phone to inquire. It is
not surprising if Hannabas, with so many years of greater
experience, is better informed concerning customer ar-
rangements. Computers are in regular use at the Compa-
ny's locations. When something went wrong with the
computer, again the girl turned to Hannabas for assist-
ance, and she told her how better to operate it. By the
winesses: "If we couldn't get information enter in the
computer, we would call June. Any of the problems we
couldn't handle at the counter we called June for."
Again: "We have to do a car status on every car before
we rent it . . . if the car is unavailable to rent, we could
tell June about it and she clears the matter up down in
the office .... Like she would clear the car out of the
computer, put the right mileage in, you know, for the
car at that time that is supposed to be rented out." By
McBride: ". . . if you have an Avis card, we can auto-
matically print them up before the customer arrives and
when the customer arrived we couldn't get the contract
machine to take the contract so I had to ask June about
that because we were having trouble getting it in."
All this proves is that Hannabas, with so many years'
experience at the work, was best informed as to the rules
about the rental discounts and about how to handle the
machines. Guidance in how to do the work by the senior
to the novice is standard operation in many fields of em-
ployment. It does not prove supervisory status as the
word is defined in the Act. Cf. Vapor Corporation, 242
NLRB 776 (1979). Hannabas' higher value as the truly
skilled member of the staff also reasonably explains the
greater largesse the Company extended to her. All the
girls are hourly paid and punch a timeclock; Hannabas
gets $200 a week and seldom punches the clock. She Xwas
their " mmedtl1cllt %,lp - .f l "is art "ic;laninrglessc ' hbetc'atlt Ie 1sue 1i
lethel r tia.lhi.Ais s.%, . iipciSstir s hen1 sheC s"orked 1 the o flce. Iot
,h,'n she rturilld I,'i hi , , llt'iLIrIl " It ln l I .ini relilllg. i his Is inr
agreentl' i sith lte Rcspondetnt hit tron t AlIgitl 22 iOl ItillI.ilbs \s.L%
not a supterls l s I ) ihi lI l t itlt, hm rio l-cr i actied fctienl s hllnel il' e ( ,1 i-
parly
paid for a full month of sick leave in 1978, a benefit the
other employees do not enjoy. In return, she said, she
does overtime without asking to be paid for it.
No matter how one looks at all this, it still shows
nothing of substance of the question of wages, hire,
transfer, suspend, layoff, or other conditions of employ-
ment. Two girls spoke of a single incident when the two
of them got into a personal hassle-a "misunderstanding
between them," as witness Marvel said. Craft, the other
girl, said she telephoned Hannabas at the office about it
as "Sherry and I were just joking . . . nothing major."
Later Hannabas called back to ask "was everything
okay," and Craft told her, "Yes."
Again, in her brief the General Counsel asks that if the
evidence falls short of proving Hannabas to have been a
supervisor within the meaning of the Act, for the least
she should be deemed an agent of the Respondent. The
evidence does show she was not well disposed towards
the idea of a union, that her old friend Ottaway talked to
her about it when the union activity came to his atten-
tion, and even that she did not hesitate to express her
views to fellow employees. But no Board precedent has
been cited for the proposition that because an employee
is friendly with the boss, and thinks as he does about
unions, it follows she speaks for him when she talks.
C. Section 8(a)(3)
As stated above, the Company received the Union's
demand letter, with notice of majority authorization by
the employees, on August 18. During the following
week-August 20 to 24-it made a number of changes in
work assignments. On August 20 it discharged Loretta
Hale; on August 21 it reduced the hours of McBride, and
switched Perdue from the day to the night shift. Three
days after firing Hale, it transferred Connie Blair from
the office to the airport, switched Marvel from day to
night, reduced the hours of Perdue, and discharged
McBride. Three months later, on November 27, the Re-
spondent made further changes in the same group-the
airport rental agents-reducing the hours of Marvel and
discharging Perdue. Every one of these changes, accord-
ing to the complaint, was motivated by an intent to curb
the surfacing of union activity, deliberate discrimination
in employment in violation of Section 8(a)(3).
Denying unlawful purpose in any of its actions, the
Respondent advances essentially two affirmative de-
fenses: (1) that the transfer of Hannabas to the airport
desk made a reduction in force necessary, and (2) that fi-
nancial reverses, or need, in part at least, explained all
that it did.
During these events, but particularly in late August,
Ottaway and Fannin committed unfair labor practices-
that is, questioned employees about their activities,
sought to induce them into reporting on the union activi-
ties of others, created the impression that it was survey-
ing their activities, and even threatened to close the
entire place. As to many of the precisely alleged acts of
discrimination, these separate violations of Section 8(a)(l)
are in a sense indirect proof that the actual changes in
employee status were unlawfully motivated. The argu-
ments both ways will be best appreciated if the three
963
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
major changes outright discharge of three employees-
be first considered in the light of those facts which bear
directly on each of the separate discharges.
D. Ihe Discharge of Hale
Hale was hired on July 7 and taken on as a part-timer;
she worked only 4 days a week. She signed a union
membership card on August 20. While at work that day
at the airport, Fannin, the manager, picked her up in his
car and drove her to the office a mile away, where he
sat her down and had a talk with her. There is a conflict
in testimony between him and her as to what was said
during their conference. Hale also testified that Ottaway,
the owner, came into the room and talked to her.
Ottaway denied having seen her at all that day in the
office. There is no dispute, however, as to the further
facts that Fannin then had Hale driven back to the air-
port by one of the service agents, that she resumed her
regular duties, that her scheduled hours that day were
from 3:30 p.m. to midnight, and that she punched out-
as shown by the card received in evidence-at exactly
9:24 p.m., and went home, never to work again for the
Respondent.
Her testimony, about her conversation with Fannin,
follows: the manager asked did she know "that the
Union was trying to get into the Company" and she said
no. Fannin went on: "He also asked me if I had signed a
union card." Again she said no. "He went on to tell me
that they would definitely not have the union; that they
would go as far as selling their homes, going back to
apartment living, they would put their children back in
public schools, they would do all of this to keep the
union out." Hale then asked him: ". . . are you putting
my job on the line?" Fannin's answer was, still according
to Hale, ". . . yes, absolutely." At this point, as Hale tes-
tified, Fannin called Ottaway into the office, and told
him Hale knew nothing about the Union. The owner's
comment was: " . . we believe you, Hale . . . . You are
an asset to the company . . . in the next few weeks I
may ask you to do some crazy things . . . I may ask you
to write myself or Omer a letter asking for a personal
leave of absence." Hale said the owner did not explain
this, but that she then asked would he guarantee her job
back, to which he said, "Yes." Continuing with her testi-
mony: "Fie also told me that I would receive pay while I
was on this personal leave of absence and that would be
between me and him." Ottaway's final statement was: "If
the conversation was repeated it would be denied."
Hale continued that, after Fannin had a service driver
drive her back to work, at "around 8 or 9 o'clock that
night" Fannin came again to the airport and told her "he
and Geoff had been talking some things over and doing
some thinking and the only thing they could do right
now was lay me off." When she asked how long the
layoff would be, he told her he did not know, and apolo-
gized. With this Hale clocked out then and there.
Fannin, testifying after Hale, denied every word about
the Union that came out of Hale's mouth. His story is
that all he told her in the office was, "We had to let her
go," that it all took no longer than 5 or 10 minutes, and
that he said nothing else. He did add that he told the girl
she could work to the end of her shift, because he
always does that when discharging someone. Fannin
then admitted going to the airport "anywhere between 7
and 9," as he usually does; his story is he told her then
no more than he was sorry this had to happen. He
denied telling her to leave then.
I credit Hale against both Fannin and Ottaway. This is
a situation where the defense testimony carries its own
death wound. The basic defense assertion is that some-
body had to be let go at the airport counter to make
room for the returning Hannabas from the office. Hale
was the most junior of all the rental agents, she was a
part-timer anyway, and therefore the obvious one to be
selected. The defense is made to appear more convincing
by the fact Hannabas had asked for a transfer, and the
Company had agreed, before any union activity started.
From this it follows, the Respondent argues, that Hale's
discharge that day was a predetermined thing, so how
can the General Counsel complain about it?
The trouble starts with the fact that 5 days later the
Company discharged another rental agent-McBride. It
takes only one body to make room for one other body.
While it is true the decision to bring Hannabas back had
been made before that week, there is no evidence of any
earlier intent to bring still another girl from the office to
the airport counter. The idea that Hale was fired only in
anticipation of Hannabas' return therefore rings entirely
false.
Next, if the action was actually so fixed in advance of
that day, why did the manager take the trouble to go
pick Hale up a mile away, bring her for a personal chat
with him, only to tell her she was through, just a phrase?
This was not a rational thing for the boss to do with a
part-timer who had only worked a little over a month.
Fannin said he told her she was fired, but when she got
back to her post she kept on working. Had he really told
her that, she either would have pulled out in a huff im-
mediately upon reaching the airport or, if she needed the
money, she would have enjoyed the hours to midnight.
Instead, her card shows she left at 9:24. There can be
only one coherent explanation for this; something hap-
pened between the time she resumed work and the
moment she clocked out. But the only thing that hap-
pened is that Fannin came to the counter again, at or
about 9 o'clock. That Hale clocked out just then because
Fannin, for the first time at that moment, told her she
was being discharged is an inescapable conclusion. From
this it follows Fannin lied about having told the girl in
the office that she was being fired. To the question what
was he trying to hide by his false testimony-the answer
must be his illegal purpose in deciding to let her go after
pumping her for all he could get from her about the
union activity. I find, as Hale testified, that Fannin inter-
rogated her about her union activities, threatened to dis-
charge her for them, and promised to bribe her in return
for her snitching upon her coworkers to keep the Re-
spondent informed of the union activities of all the em-
ployees, all these things in violation of Section 8(a)(1) of
the Act.
When to this one adds the timing of the dismissal-
only 2 days after receipt of the Union's letter saying em-
ployees had joined the Union, and the Respondent's ad-
964
A.XIS R[FN F-A- CA.R
mitted resolution to keep it out of its business, the con-
clusion that Hale was discharged in violation of Section
8(a)(3) of the Act is clear. I so find.
E. Discharge of Perdue
Late in November, 3 months after things had settled
down in accordance with the changes of shifts made at
the end of August. the Company rearranged the shifts at
the airport. For some time there had been two shifts--
one from 7 a.m. to 3:30 p.m., and one from 3:30 p m. to
midnight. There were always two girls on each of the
shifts, with others working at odd hours. Because of the
reduced air traffic beginning at that time of the year. the
Company changed to three full shift assignments plus
part-timers. One girl continued full time on each of the
two older shifts-7:30 a.m. to 12 midnight-and a third
shift-called a swing shift, was established, from II a.m.
to 7:30 p.m. With thus less work, fewer full-timers were
required on the shifts. Perdue was discharged. Another
agent was reduced to part time. The charge is that
Perdue was discharged and Marvel was reduced to part-
time work because of their union activities.
Perdue testified that, a few days after her dismissal,
she was talking to Fannin, who asked did she know who
had sent a certain anonymous letter. It seems someone
had sent an unsigned letter on the subject of the Union
to World Headquarters of Avis. When she answered she
did not know, the manager said he did, because he had
studied semantics, and could tell from the handuwriting.
As they talked he found occasion to say that "he didn't
know why we thought we needed a union, that Geoff
had been good to us .... " Perdue also said that was
the only time Fannin mentioned the Union to her.
Are there sufficient facts from which it must be in-
ferred the Respondent's purpose in discharging Perdue,
and in reducing Marvel's hours, was to discriminate
against them because of their union activity?
It is a fact the Company was opposed to having a
union represent its employees. It is a fact its two manag-
ers-both Ottaway and Fannin-had several months ear-
lier committed unfair labor practices in questioning em-
ployees about union activities and even threatened eco-
nomic retaliation against them because of it. The Re-
spondent cannot remove these facts from the picture.
It is also a fact that whatever work there was to be
done could be done by the staff as reduced by these two
changes in payroll in November; this if only because
there is no indication anyone has since been hired to re-
place anybody or that work hours have since then again
been enlarged. The Respondent says an added reason for
this reduction in force is that it needed more cash, for
one reason or another. The General Counsel argues this
was not true, that the Company was making a very good
profit, and that therefore it could well have afforded to
keep everybody on the payroll. But even assuming the
Respondent was rich enough to get along with a larger
payroll, nothing can black out the fact the larger staff
was more than the available work required.
It is also a fact that Perdue had the least seniority of
all the rental agents at the airport. It is an old principle
of Board law that departure from an established practice
of seniority indicates ulterior motive. Here, instead, the
(Geineral Counsel argues that adherence to seniority land
it is a Infal the Respondent follouved seniority meticulous-
ly not only in the November changes but indeed in each
and every change it made in August) proves an intent to
hit at the unioneers Does this mean that when the self-
organizational campaign centers among the oldtimers,
the ernployer must select for discharge the new arrivals.
but w hen the newcomers start things going it must im-
munize tIhem from econlomic trasail? It is a poor argu-
men.
TIhis argument by the General Counsel is stressed here
because it is made with respect to each and every de-
tailed item of discrimination alleged to have been com-
mitted back in August. The theory is no more coninic-
ing as to all of those actions than it is to the discharge of
Perd ue.
Shortly before this happened, sometime in November.
Fannin offered Perdue the newly established job of re-
ceptionist in the office She refused the offer. The assert-
ed animosity against her is said to have come into being
3 months earlier, proved by what Ottaway and Fannin
did at that time. If management were really determined
to punish Perdue for her prounion activities, the last
thing it would do was offer her a more permanent job,
just before having to let her go for economic reasons.
This disturbing fact is then swept aside by the (ieneral
Counsel with the purely conclusionary phrase that the
Respondent's reason for offering to switch Perdue to the
office was to get her out of the unit which the Union
was seeking to represent. But this position ignores the
equally clear fact that all along the Company's position
was that all the Roanoke employees-office and air-
port-have to be put together. And one thing this record
does show clearly is that, in this case, office and airport
people must, under Board law, be joined in a single unit.
I find the affirmative evidence insufficient to prove the
complaint allegations that Perdue was discharged, or that
work hours assigned to Marvel were reduced, for the
purpose of curbing their union activities. I shall therefore
recommend dismissal of this part of the complaint.
F. Multiple Violations of Section 8(a)(3)?
The remaining allegations of violations of Section
8(a)(3)-a third discharge, shifting of employees to less
desirable shifts, and further reduction of hours-may be
evaluated as a total picture. There is no pinpointed proof
that this or that particular discrimination alleged was ille-
gally motivated, there therefore are many aspects that
must be considered. As will appear, there are facts point-
ing to a broadside pattern of union animus, and facts
lending ostensible support to at least some of the defense.
That the Respondent was against the idea of any union
representing its employees is unquestioned. The most
direct evidentiary indication that the Respondent was
also disposed to take positive action, even to the point of
discharge, to achieve that objective is the conversation
both the manager and his assistant had with Hale on
August 20. At the hearing. Fannin did not tell the truth
about that talk. To me this means Hale is to be believed,
and that therefore both Fannin and Ottaway voiced the
view that they would discontinue the entire operation
I)ECISI()NS ()F NATI()NAI. .A()OR REL ATIONS B()ARD
rather than have a union. They even told her her job
was "on the line."
A week after Hale was fired-this would be about
August 27-she came back for a layoff letter needed for
her social worker. She testified that Fannin then asked
her "if I had signed a card .... He told me that there
was someone who had signed a card but they had chick-
ened out and were keeping him informed on everything
that was going on."
Q. Did he ask you to keep in touch with him at
all?
A. Right. He asked me if I heard or if I knew of
anything would I keep him informed.
Given the character of Fannin's total testimony on this
question of interrogation and threats, I do not accept his
denials. I credit Hale and find that, by Fannin's question-
ing whether she had signed the union card, by his state-
ment that the Company knew who the prounion employ-
ees were, and by his request that she report to him about
the union activities of other employees, the Respondent
in each respect violated Section 8(a)(1) of the Act.
Riley Neal, as service agent, testified that after he
signed a card, but still in August, Ottaway said to him:
He just asked me what I meant by joining this
damn union .... He called me a lying sob ....
he could have fired me several times before but just
didn't do it ... . He told me if I had thought any-
thing of my job that I had better get that union
card back.
Neal's testimony continues that the next morning Fannin
said to him:
. . . did I get that union card back yet. I told
him . . . I cannot get it back because it is in the
union headquarters in Baltimore .... He said,
well, we are not going to have this kind of stuff
around here. I think the best thing you can do is
find yourself another job .. . . I asked him, am I
fired? He said, no.
Neal never did suffer discrimination in employment. In
the light of the whole record, and especially Ottaway's
admission that he did question Neal about his union ac-
tivities, I credit Neal's testimony and find that both man-
agers unlawfully interrogated him and threatened retali-
ation, all in violation of Section 8(a)(1).
Charles Moore, another service agent, testified that
after the Company received the Union's letter, Ottaway
asked him "if I knew anything about it . . . rumors
about a union trying to get started." "He just asked me if
I hear anything or know anything or know who's behind
it, let him know." Ottaway questioned him in a similar
fashion again the next day, according to Neal: ". .. he
. . . asked me if I had heard anything more or seen any-
thing . . . just to keep my eyes open and ears open and
let him know." Again, while admitting the interrogation,
Ottaway denied the threats. I credit Moore and find that,
by questioning him about the Union and by asking him
to report on the union activities of other employees,
Ottaway again violated Section 8(a)(1).
Connie Blair worked in the office before all this hap-
pened. She said that one day Ottaway told her "there
vwas a slacking in work and he said I could go on part
time or I could go to a full time at the counter." She
chose to go, and was moved to the airport on August 24.
Blair also testified that several times thereafter Ottaway
asked had anyone contacted her about the Union, and
that she always answered no. Just when these talks came
Blair did not remember, except to say that it happened
after she had become a countergirl. In one of the talks-
just how late in September is not clear-Ottaway asked,
"Do you think Wanda [Marvel], Diane [Craft] or Cindy
[Perdue], anyone of those are involved and I said yes."
Blair added the reason why she said this was "Because
of the way they were acting and everything. Their atti-
tude had changed on the counter."
I credit Blair and find, once again, that by Fannin's
questioning of her about the union activities, hers as well
as that of others, the Company continued its violations of
Section 8(a)(1), illegal interrogations.
Long after the August changes of work assignments
were made, there came further interrogations and
threats. Rental agent Craft said that at or about Christ-
mastime Fannin asked her "why I felt towards the union
the way I did, why I had gone to the union." Ottaway
added, according to Craft: ". . . you don't know how se-
rious I am about keeping the Union out of this compa-
ny." Craft also gave testimony about Fannin expressing
similar antiunion views on or about March 1, 1980. I
credit her testimony also.
To offset the compelling force of the foregoing proof
of union animus, the Respondent advances two conten-
tions. One is that the previously decided transfer of Han-
nabas to the airport necessitated a reduction in staff
there, and the other is that business was down and it
needed more money, an objective achieved by reducing
the number of hours worked weekly by the group as a
whole. That the total amount of work available to the
old cadre would be reduced by the arrival of Hannabas
is a fact of life. The decision to transfer her to the airport
clearly antedated the union activity. There is also evi-
dence that, before anyone thought of joining a union, the
Company had made definite arrangements to bring a new
full-timer to the office to fill whatever void Hannabas'
departure might create. Karen Givens is an office worker
who had been a part-timer at the office for some months.
In late July, with knowledge that Hannabas was leaving,
the Company asked her to quit her regular job and come
here. On August 9 she wrote to the sheriffs office,
where she worked days, giving 2 weeks' notice of her in-
tention to leave. She became a full-timer here on Sep-
tember 4.
Marvel, who initiated the union movement, testified
that on or about July 15 both managers spoke to all of
the rental agents at a meeting, to tell them Hannabas was
going to transfer to the office. According to Marvel, one
of the managers said, "No one would lose a job and no
one would lose any hours." Fannin, who was present,
denied there was any mention of no one losing either job
or hours. I must and I do believe him on this point. Mar-
vel's prehearing affidavit varies from her oral testimony.
966
A'\lI RINF -A-CAR
But more important, she said the reason why she and
others first thought of turning to a union was because
"We were a little upset about whether 'ae were going to
have jobs or not." There is nothing in this record indi-
cating whhx she should have been worried about her jobh.
except it be the knowledge somebody would have to
make ay for Hannabas at the airport. Besides, how'
could the manager have said nobody would he in danger
at the very moment he w as telling them another employ-
ee was joining the same staff!'
Marvel was not a very credible witness anyway.
Among the charges listed in the complaint is a written
warning issued to her on August 21 for punching in late.
Did the Respondent really give her that because of her
union activ ity? From Marvel's testimony:
Q. Were you punching late'
A. Yes, a few minutes sometimes .... There
were times when the time would slip by and I
would miss it and didn't punch in right on time so I
would be four or five minutes late punching in
On her own admission she deserved the warning.
However true it may be that the transfer of Hannabas
justified reduction of work hours by the airport group, it
absolutely cannot relate to the discharge of McBride on
August 24. With Hale discharged on August 20-to
make room for Hannabas, according to the Respond-
ent-the staff was already reduced by one. Also on
August 24, the Company transferred the other office
girl-Connie Blair-to the airport. But there is nothing
to show-indeed, it is not even contended-that Blair's
transfer was planned before the union activity came to
light. Why was she sent to the airport precisely at that
critical time? It was :o fill this obvious gap in its argu-
ment based on the Hannabas transfer that the Respond-
ent made its alternative contention that financial need ex-
plains everything it did.
I find that defense unconvincing on this total record.
The Company's principal business is renting cars and
trucks; monthly financial statements placed in evidence
show no significant change in the volume of business
done either at the airport or at its office during the
month preceding the August events. Ottaway spoke of
payments that had to be made to his father, or to certain
banks, for his having bought the business early in the
year. But those payments were made all along, and never
changed materially. But even if capital outlays may have
been a burden, the payroll is for current work to be per-
formed, and the relationship between work duties and
labor stands apart from personal debt obligations. A
more revealing fact is that at the very time this was
going on-reducing the staff-as he said-Ottaway was
hiring additional employees. No less than three service
agents were added on August 20. The very week follow-
ing the Company hired three more. More significant still
is the fact the new men were paid substantially more per
hour than the old ones. There is also evidence of raises
here and there given the same rental agents not long
before the union activities started. And finally, in the
middle of all this the Respondent attempted to purchase
an additional Avis car rental franchise.
Whatever may be said of an employer's right to keep a
close eye on its payroll obligations in times of gas short-
ages or inflation, as an explanation for the unannounced
transfer of Blair to the airport and the concomitant dis-
missal of McBride the same day, this defense will not do.
When to this is added the direct proof of intent to retali-
ate against the group as a whole, and the perfect timing.
the conclusion that the dismissal of McBride was illegal-
ly motivated is inescapable. The hours of work for two
girls who remained-Marvel and Perdue-were reduced
that week. There is no reason for holding that this cut-
ting down on the amount of work performed by others
at the airport was not enough to make room for Hanna-
bas. With no doubt at all I find that by discharging
McBride the Respondent violated Section 8(a)(3) of the
Act.
We come to the selected other four changes made by
the Company that week, each pinpointed as a separate
unfair labor practice-the transfer of Perdue to the night
shift on August 21 and the reduction in her hours on the
August 24, the reduction of hours of McBride on August
21, and the transfer of Marvel to the night shift on
August 24. As to these minor changes, it is a catchall al-
legation with little direct, truly related proof. Did man-
agement know, during that week in August, when it
made the changes in assignment now called illegal, exact-
ly which employees favored the Union, so that it could
be said it selected with malice which ones to move
around? Despite the interrogations, nobody talked, as
one employee witness after another admitted at the
hearing. It is a small operation-only about 20 employees
all told, and there is a good chance the nosey boss
learned things, but it would still have to be an inference
that Ottaway acquired the exact information.2
The second related fact is that the Respondent moved
strictly in accordance with seniority in all the changes it
made-every switch in shift assignment and every reduc-
tion in hours. No need to belabor it again, for I find
without merit the unsupported assertion that it did so ex-
pressly to weed out the unioneers. There simply is no
evidence to prove that blanket statement. The fact of
always picking the least senior employees when some are
to lose work supports the affirmative defense of dis-
charge for cause.
Again, a seemingly unrelated complaint allegation will
make this point even clearer. Thanksgiving is a slow day
at the airport, and only two employees are needed in-
2An example of this reasoning by presumption-said to prove compa-
ny knowledge of the identity of all the card signers-is shown In the tes-
timony of Kini Worley, the rental agent for another car rental agency in
the airport She was offered by the General Counsel to quote something
said hb June Itannabas. the lady who on the total record then turned out
rot to he a supervisor The witness said Hannabas told her she knew who
the unioneers were and listed five names Worley then added Hannahas
also told her she knew this because "she had asked Sherry was she in
solsed and had she signed the card and Sherry said what card, and she
said she knew hby that that Sherry was insolved because e'erylone had to
be approached and e'eryone knew about it " The reasoning here is thai.
by telling Hannahas she knew nothing about union cards. Sherry ad-
niiied she hald been solicited and eeten signed a card But see Loaral 357
Intrrnutlrionai Biroltherhratd /J ritrsl, ChaufJufi'ure. H'arehousemrnn und
Ici, pcir\ i t/' nwria [Lo I .Inih,,i-S.irrt/i .Mlotor E. rprni,] .N : R B. 30
' S hr67 1i0 1), k hich sa,,s unfair labor pra:tni.es against unilns or em-
ployers arc not provsed hi presumptilrn
I)C ( ISI()NS ()t: NA NAI I A()R RtI ATIO()NS B()ARDI
stead of the usual group Somebody had to he picked.
Normally, in such a situation, the employees used to dis-
cuss the matter among themselves and the Company
went along with whatever they wished to do T his time
they could not agree, so he called for volunteers; no one
offered. So he posted a notice telling everybody the two
who were willing to work would get holiday pay plus
time and a half. The notice also said that of all who of-
fered to work the most senior ones would be chosen to
enjoy the benefit. It also said if no one offered the least
senior employees would just be assigned to work by
management. Two women-Perdue and Marvel, who
also happened to be the least senior of all-signed the
notice, each adding after her name that she was doing so
"under protest." As it developed one of them worked
and the other did not, because some one else took her
place.
Was it an unfair labor practice for the Respondent to
have proceeded in this manner to choose the two em-
ployees it had to have for that I day as the complaint
alleges'? I think not. Some things are better left without
comment.
One of the enumerated unfair labor practices is the
change of Marvel to the night shift that last week in
August. She said Fannin told her, when informing her of
the change, she would be given a 10-cent-per-hour raise
for the inconvenience. She refused to accept it "unless he
contacted my union representative, Mr. LeDane." The
manager then asked that she put her request in writing,
and she did. Marvel's testimony about this offer ends
with her saying that Fannin "laughed," and that she
found the raise in her next paycheck "anyway." Ten
cents is not much but, given in this manner to so outspo-
ken a prounion employee, it certainly helps negate any
suggestion Fannin was using the change of shift to "dis-
criminate" against her because of her feelings. The only
theory under which the Respondent could be faulted
here is again by inverse reasoning, and it is that when an
employer does something seemingly to his credit you
infer his purpose was to achieve the opposite of the ap-
pearance of things.
Seven months later, in December and around Christ-
mas and later, other things happened, also pointing, ac-
cording to the General Counsel, to illegality in what the
Company had done back in August. While distributing
gift hams Ottaway talked with rental agent Craft, and
discussed the union situation with her. He asked why
had she gone union, argued the contrary view, defended
his position, and even said, according to her, he was so
opposed to a union he would close the place rather than
have it. She, in turn, argued at length the merits of un-
ionism. Ottaway denied saying he would close but ad-
mitted telling her he was determined to keep the Union
out. Like other incidents and conversations detailed
throughout the record, this one too has another side to
the coin. A week later the Company offered Craft a job
in the office, first saying it would be with a raise of 75
cents, then $1 an hour. Ottaway did tell her then it
would mean she could not vote in the election, but when
she asked was that why he made the offer, he said no.
The offer was made more than once, and when later she
finally decided not to accept, Ottaway said he was sorry
about that. With the Company always trying to join
office and airport employees into a single unit, this may
mean the office job, with so much more money, was a
supervisory position. I do not know. But it will not do
for the prosecution side to argue the generous offer was
only to remove Craft from the union group. An employ-
er determined to hurt the unioneers does not offer a
better job for so much more money.
All things considered, I find the evidence insufficient
to prove that the four changes in assignments made
during the week of August 20-transfer of Perdue and
Marvel to the night shift and reducing the hours of
McBride and Perdue-were motivated by antiunion con-
sideration.
G. Money Awards
Entirely apart from what may well have been ordinary
rearrangement of individual assignments, the Respondent
did retaliate against the employees as a total group in
two material, monetary respects, and the record as a
whole does support complaint allegations that these were
unlawful acts. There are periodic inspection contests
among all Avis car rental agencies, with a money prize
going to the winning company, or companies. In 1978
this Company won such a contest, and distributed the
cash award among the employees. In the summer of 1979
it won a similar contest, and received a $500 check for
the success. Ottaway said he received the money in Sep-
tember or October, but this time did not give it to the
employees. Ottaway and Fannin told some of the em-
ployees about it but denied having received the prize
when speaking to others. Asked why the money was
withheld this time, Fannin said that "there was no obli-
gation to give it," and Ottaway just said, "We needed
the money." Neither explanation will do. To one em-
ployee, Neal, who later asked why had the Company
withheld the money this time, Ottaway said it was be-
cause "he didn't want Wanda [a union activist] to get
none of it." That the Company on this occasion aban-
doned its past practice in consequence of the concomi-
tant union activities is clear to me.
During July, in order to encourage the rental agents to
greater effort, Ottaway promised each of them some
prize money as a gift if they succeeded in selling double
insurance to customers during the month of August.
Some of the girls then did "try harder," and even kept
records of their successful sales that month. But they
never received the money. Why? From Ottaway's testi-
mony: "I was advised by counsel to withhold it until this
matter was settled."
I find that by withholding the $500 contest prize
money from the employees, and by deliberately holding
back the agreed payment for the extra work, asked for
and performed in August, the Respondent violated
Section 8(a)(3) of the Act. Hanover House Industries, Inc.,
233 NLRB 164 (1977).
H. Moore
A final allegation of illegal discrimination is that
during that week of August 20 the Respondent refused
to change service agent Moore from part time to full
9h6
AVIS RENT-A-CAR
time. Moore's testimony about what happened then, and
about what the supervisors said to him, is confused, and
I do not think it suffices for a positive finding that his
request for such change was denied because of his union
activities. He did sign a union card on August 17, but
there is no proof at all that management knew about it.
In fact, although he was asked by Ottaway whether he
knew anything about union activities, and again the next
day was asked to tell the manager if he heard anything
about it, Moore each time denied any participation or
knowledge. His testimony is that during that week he
asked Ottaway could he move to full time, and that
Ottaway answered "he would think about it and let me
know." Moore added that he also asked Fannin the same
question-apparently the same day-and that "I believed
he [Fannin] asked me if I wanted to and I said yes. And
he said, okay." With this, the witness continued: "I as-
sumed I was full time at that time. He said, I believe it
was Monday or so. I am not sure. He's-so I assumed I
was full time. I planned on working till 11:30, I think it
was."
Moore's story continues that on that same day, "We
started to close up and Geoff asked us if we were ready
to go and I told him that Omer had put me on full time
and he said, right now things are a little shakey and . . .
He said that he would rather keep me part time for a
while till this blows over." Moore then added he
"guessed" Ottaway was talking about the Union.
On this score Ottaway's testimony is that he refused
Moore's request that day and put another service agent,
Andrew Blair, on full time because he was more
"mature," more experienced, and had been with the
Company on and off for 7 years.
Shortly after this-when, I do not know, for again the
testimony is very vague as to this entire Moore story-
Moore was told by both managers they thought he was a
good man and asked would he accept a position as truck
rental manager. Nobody bothered to explain what this
job then meant, hut I assumed it was a promotion of
some sort. Now, I do believe Ottaway told Moore it
would be better to keep matters as they were until things
"blew over," and, surely, that he was in fact referring to
the pending union election. But the Company was in a
box at that time. Had Ottaway given the man what he
wanted, after hearing him say he was not involved with
the Union, the complaint could well have added that act
as a discriminatory assistance to the antiunion forces. It
was only after Moore refused the job of rental truck
manager that Ottaway first learned he was a union man.
In the interval Moore had asked Marvel, the card solici-
tor, what should he do, and she told him he would not
be able to vote if he accepted the new job. All Ottaway
said at that point was "Okay."
The fact that much later, towards the end of
November, Moore resigned from the Union, and "three,
four weeks" later did go full time, has nothing to do
with what happened that week in August. I think this
pinpointed complaint item of illegality in not making
Moore a full-timer then is but another detail in the catch-
all grouping of whatever the Company did that affected
the card signers. Whatever touched upon the conditions
of those who did not sign cards is ignored; anything that
in the least affected the unioneers-and never mind
whether the Respondent knew about it or not-is called
illegal. I find the probative evidence does not support
the allegation Moore was denied full-time work because
of his union activity.
I. Section 8(a)(5)
As set forth above, the Union would limit the bargain-
ing group to those rental agents who work at the airport
plus the service agents. The service agents have their
major work station for servicing rented vehicles adjacent
to the office a mile away from the airport. Their work
also requires that they regularly drive to and from the
airport, and even do minor cleaning and refueling there.
The first question is whether, as the Company contends,
the office girls-there were two at the time of the
events-must also be included in the proper unit.
At the office the girls keep the Company's records;
they also rent vehicles, exactly as do the airport agents.
A difference here is that at the office trucks are rented
but at the airport it is always passenger cars It is true
that trucks are different from cars, but as to what work
the agents do it is precisely the same thing at both loca-
tions. Both groups are subject to common supervision
and there is not the least indication of any other differ-
ence in their overall conditions of employment. And, as
the Board said, Avis rental agents "are in the nature of
office clerical employees." Avis Rent-A-Car Syvstem, Inc.,
132 NLRB 1136 (1961). 1 find that the office employees
here must be joined with the airport rental agents.
As to the service agents, the General Counsel seems to
contend that, because the rental agents "regularly have
contact" with the service agents, a community of interest
must be seen between the two groups. But in fact, the
service agents have no less contact with the office girls,
who work close to them almost all the time. If there is a
difference among all these employees that might justify
separating some from the rest, it is between the service
agents on one hand and the rest on the other. And the
case cited by the General Counsel stands for that very
point. Budget Rent-.4-Car of New Orleans, Inc., 220
NLRB 1264 (1975).
The Company would also include the rental agents
who work at White Sulfur Springs, in West Virginia, 78
miles away. Addition of those two girls completes the
full complement of all employees in both categories.
They too are supervised from Roanoke; Fannin goes
there once a week. They do exactly the same work that
is performed at the airport, one of the two girls even
servicing rented cars in minor matters. When the White
Sulphur Springs girls have problems with their comput-
ers, they telephone the Roanoke airport for help and
clarification. While it is true there has been virtually no
interchange or temporary transfer of employees between
the two locations, distance alone is not reason enough to
isolate so small a group from the total operation. There
is a further contention by the prosecution that helps re-
solve this detailed question. The General Counsel says
that Donna Trevino, one of the White Sulphur Springs
girls, is a supervisor, and must therefore be excluded in
any event. I am by no means sure the record as a whole
969
DECISIONS OF NATIONAL. LABOR REL ATIONS BOARD
proves she is a supervisor. But be that as it may, the
question need not be answered. Assuming Trevino must
be excluded, this leaves only one clear rank-and-file em-
ployee out of the total of the Company's nonsupervisory
employees. The Board long ago held that in such a case
you put that employee into the single, companywide
unit, and disregard lack of community of interest, if in
fact she is different. And the reason for this is that other-
wise she would have no way of enjoying the statutory
privilege of joining in the collective-bargaining process.
A final question as to the composition of the unit in-
volves the office girl named Givens. She is an office
worker who, beginning in April 1979, started to work
part time preparing the Company's monthly financial
statements. Her hours were not regular, but she came
every month and worked as many hours as was neces-
sary to complete her duties. The record shows she
worked three successive weeks in May-doing 8.8, 7.8,
and 14.9 hours a week. She worked 2 weeks in June,
doing 3.8 and 18.8 hours each week. In July she came 2
weeks, doing 5.25 hours and 16.8 hours. Then came the
moment of demand and refusal, August 18, according to
the General Counsel. Was Givens a regular part-time
employee to be included in the count, as the Company
contends, to the General Counsel were other General
Counsel's contrary assertion? I think yes. There were
other part-timers as to whose inclusion there is no dis-
pute. One such, a rental agent at the airport, worked
only on Sundays during August 1979, and had worked
only that way for a very long time. I see no reason for
excluding Givens from the count.
We come to the question of whether or not the Union
was authorized by a majority of the employees in the ap-
propriate bargaining unit at the moment of demand and
refusal. As best I understand the contention of the Gen-
eral Counsel it is that the critical date was August 19.
On August 18 the Company received the bargaining re-
quest; its rejection letter was written on August 20.
Eight employees signed cards by August 17 or earlier.
Although the prosecution brief discourses upon case
precedent on the subject of continuing demand--where
the employer flouts the request for recognition with no
concern about authorization cards at all-it restricts the
critical date to August 19. It must do that, because three
employees were hired into the unit on August 20-
Andrew Blair, Roger Denny, and Kirk Hannabas, and
the General Counsel very pointedly insists they may not
be considered in the majority count, they came too late.
I find that the Union did not represent a majority in
the bargaining unit either on August 19 or August 16,
when the demand letter was sent. There were 1h em-
ployees properly included in the total count on August
19-12 by stipulation of the parties, plus 3 at the office
Hannabas, Connie Blair, and Givens, plus I-Debbie
Ford-at White Sulphur Springs. Nine authorization
cards were placed in evidence. One, signed by King. is
not to be counted because he quit work on August 17.
Loretta Hale, the girl who was discharged Monday
night, August 20, signed an authorization card; in her
own hand it is dated August 20. At the hearing she said
she signed it the day before, August 19. Someone drew a
line through the number "20," which she wrote on the
card, and inserted "18" above it. Marvel, the principal
solicitor of cards, testified she received this card from
Hale sometime during Sunday, August 19, and that at
that moment it bore only the date of August 20. She
then added when she took the card to the Union's office
the next day LeDane, the union agent, changed the date
back to August 18. Perdue testified she saw Hale sign
the card on August 19.
In the circumstances of this entire case, and in the
light of other evidence, I find this card unreliable evi-
dence to prove Hale authorized the Union to represent
her before August 20. Board law says it is the cards
which constitute reliable proof of representative status,
not the oral testimony of employees as to their quondam
state of mind. N.L.R.B. v Gissel Packing Co., 395 U.S.
575. If the card can be altered-especially as to the criti-
cal date-by the union's agent so as to conform with the
employees' later oral testimony as to her intent, the net
result is that the testimony takes the place of the docu-
ment. Why did LeDane write "August 18" if the em-
ployee signed on August 19. Three new employees were
hired on August 20. It is the position of the General
Counsel and of the Union that majority is not to be
tested as of August 20, but only as to August 19. This
effectively removes those three new arrivals, none of
whom signed cards. By pushing back Hale's card, the
picture of majority, very close at best, improves. If oral
testimony of past intent cannot serve to invalidate a card
otherwise valid on its face, it certainly cannot validate
one which on its face may not be counted towards ma-
jority.
With elimination of Hale's and King's cards, this
means that on August 19 the Union was authorized by 7
employees out of the then complement in the bargaining
unit of 16. I shall therefore dismiss the complaint allega-
tion of refusal to bargain in violation of Section 8(a)(5).
IV. -I HE REMI I )DY
The Respondent must be ordered to offer Loretta Hale
and Sherry McBride reinstatement and to make them
whole for loss of earnings. It must also be ordered to
cease and desist from committing the kind of unfair labor
practices it has been carrying on and even stop violating
the statute in any other manner.
V. I'H II:FIC I' OF THFI UNFAIR I AHOR PRACT ICiES
UPON COMMI RCI
The activities of the Respondent set forth in section
IIl, above, occurring in connection with the operations
of the Respondent described in section 1, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
CONCI.USIONS Ot I.Ax
I. By discharging Loretta Hale and Sherry McBride
the Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(3) of the Act.
970
AVIS RFNT-A-CAR
2. By the foregoing conduct, by coercively interrogat-
ing employees about their union activities. by interrogat-
ing employees concerning the union activities of their
fellow employees, by offering monetary rewards to its
employees as inducement for them to inform the Compa-
ny about the identity of and the union activities of other
prounion employees, by threatening to discharge emr-
ployees in retaliation for the union activities, by threaten-
ing to discontinue its business because of such union ac-
tivities by its employees, and by creating the impression
that it was surveying their union activities, the Respond-
ent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
971