Dollar Rent-A-Car

National Labor Relations Board - Board Decisions

Sep 12, 1994

314 N.L.R.B. 1089 (N.L.R.B. 1994)

1089
314 NLRB No. 174
DOLLAR RENT-A-CAR
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
The judge incorrectly stated that the July 7, 1993 conversation be-
tween Supervisor William Sanchez and employee Benita Perez, and
their July 8, 1993 meeting with management pertaining to that con-
versation, occurred on June 7 and 8, respectively. These inadvertent
errors do not affect our decision.
3 No exception was filed to the judge’s dismissal of allegations
that the Respondent threatened employee Benita Perez with dis-
charge in violation of Sec. 8(a)(1) of the Act.
In adopting the judge’s conclusion that the Respondent interro-
gated Perez in violation of Sec. 8(a)(1), Chairman Gould finds it un-
necessary to rely on the holding in Rossmore House, 269 NLRB
1176 (1984), affd. 760 F.2d 1006 (9th Cir. 1985), and Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985).
4 The judge also found that an incident involving a promise of a
promotion to leadman Juan Mendez constituted objectionable con-
duct within the scope of Objection 1. The Respondent excepts on
the ground that the incident is beyond the scope of that objection.
Whether the incident was sufficiently related to Objection 1, we do
not rely on it in setting aside the election, because we note that the
evidence shows merely that it occurred sometime in June and does
not establish that it occurred during the critical period, i.e., after the
petition was filed on June 7.
Scamp Auto Rental 1, Inc., d/b/a Dollar Rent-A-Car
and Teamsters Local Union No. 385, affiliated
with International Brotherhood of Teamsters,
AFL–CIO.1 Cases 12–CA–15719 and 12–RC–
7622
September 12, 1994
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On April 4, 1994, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a brief in opposition to the answering
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 as modified below and to adopt the rec-
ommended Order, as modified.
The judge sustained a portion of the Union’s Objec-
tion 1—which alleges that the Respondent Employer
offered ‘‘pay raises to employees within the PDI
[predelivery inspection] classification who would vote
no’’—based on his finding that during mass employee
meetings just prior to the election Claire McChristy,
the Respondent’s director of employee relations, led
the employees to believe that if they voted against the
Union, they would receive the same raises as the
Tampa employees had received following their recent
rejection of union representation.
The Respondent’s exceptions contend that this find-
ing is outside the scope of Objection 1. We disagree.
We find, as did the judge, that McChristy’s promise to
the assembled employees is closely related to the alle-
gation of Objection 1. The promise of pay raises to all
unit employees necessarily includes any promise made
to the PDI-classified employees, who are included in
the unit and also specifically mentioned in Objection
1.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Scamp
Auto Rental, 1 Inc., d/b/a Dollar Rent-A-Car, Orlando,
Florida, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
‘‘(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.’’
2. The attached notice is substitued for that of the
administrative law judge.
IT IS FURTHER ORDERED that the representation elec-
tion held on August 20, 1993, in Case 12–RC–7622 be
set aside. Case 12–RC–7622 is severed and remanded
to the Regional Director for Region 12 for further pro-
ceedings consistent with the following direction.
[Direction of Second Election omitted from
pubication.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1993 unless otherwise indicated.
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively question you about your
union support or activities.
WE WILL NOT prohibit our employees from engaging
in union solicitation on company property during
nonworktime in nonwork areas or otherwise
discriminatorily apply any no-solicitation or no-dis-
tribution rules.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
SCAMP AUTO RENTAL I, INC., D/B/A
DOLLAR RENT-A-CAR
Dallas Manuel II, Esq., for the General Counsel.
William deMeza, Esq. and Richard Danson Esq., for the Re-
spondent.
Joseph Egan Jr., Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Orlando, Florida, on February 7 and 8, 1994.
The charge and amended charge was filed on July 27 and
October 25, 1993,1 and the complaint was issued on Sep-
tember 30, 1993. In substance, the complaint alleged:
1. That on or about July 8, 1993, the Respondent by Claire
McChristy interrogated employees regarding their union
membership and activities.
2. That on or about July 8, 1993, McChristy prohibited
employees from engaging in union activities or soliciting for
the Union during their nonworking time.
3. That on or about July 8, 1993, McChristy threatened
employees with discharge if they violated the no-solicitation
prohibition described in paragraph 2.
The petition in Case 12–RC–7622 was filed by the Union
on June 7, 1993. Pursuant to a Decision and Direction of
Election issued by the Regional Director for Region 12, an
election was held on August 20, 1993, in a unit consisting
of all drivers, warehousemen, maintenance employees, plant
clerical, and salespersons employed by the Employer at its
Winter Park, Florida facility, but excluding guards and super-
visors as defined in the Act. The outcome was that 54 em-
ployees voted for the Union and 63 voted against the Union.
(There were seven challenged ballots, but these were not de-
terminative to the outcome of the election.)
On August 27, 1993, the Union filed timely objections to
the election alleging that the Employer engaged in conduct
which should set the election aside. Thereafter, on December
1, 1993, the Regional Director issued an order directing that
a hearing be held to ascertain whether the Employer’s con-
duct was, if proven, sufficient to set aside the election. The
allegations to be determined, to the extent not withdrawn at
the hearing, were:
1. The alleged conduct which was described in the com-
plaint.
2. An allegation that the Company offered pay raises to
employees to vote ‘‘no’’ in the election.
3. An allegation that on or about August 10, 1993, the
Employer caused the Orlando Police Department to remove
employee Benita Perez from the employee parking lot where
she had been distributing union leaflets.
4. An allegation that on or about August 17, 1993, Union
Representatives Jose Navedo and employees Miguel Alicea
and Freddy Espinal were told that they were under investiga-
tion because they engaged in handbilling at the employee
parking lot.
At the hearing the Union withdrew its Objection 4.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company is a car rental agency with a facility located
at the Orlando, Florida airport. The Company concedes and
I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It also is
conceded and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
It seems that this same Union had previously attempted,
without success, to organize the Respondent’s employees at
its Orlando airport facility in 1992. It resumed its campaign
in the spring of 1993 and filed the instant petition on June
7, 1993. At about the same time, the Union also filed a peti-
tion seeking to represent the Company’s employees located
in Tampa, Florida.
On June 1, 1993, Claire McChristy, the Company’s direc-
tor of human resources, arrived at the Orlando facility with
three Spanish-speaking people who he was to use as his as-
sistants in the forthcoming election campaign. McChristy
thereafter split his time between the Orlando and Tampa fa-
cilities, planning strategy and dealing with labor relations
questions. His three assistants (whom he described as con-
sultants) were given free rein of the Company’s facilities and
were allowed to talk to employees on the premises at any
time and any place.
On June 7, a group of employees was talking in the
breakroom and was joined at one point by William Sanchez,
a low-level supervisor. The breakroom is a place where em-
ployees congregate to eat or converse. It has vending ma-
chines and is sometimes used by the supervisors as well.
McChristy testified that a number of employees (unidenti-
fied) approached him on June 7 and told him that Sanchez
and Benita Perez (a key union supporter) were having a con-
versation in the breakroom and were making union state-
ments. McChristy states that when he heard about this, he
began to be worried that Sanchez might say something un-
lawful to employees and that he therefore decided to have
the two of them come to a meeting on the following morn-
ing. McChristy concedes, however, that he was not told by
anyone the specific contents of the conversation and there-
fore had no objective basis for assuming that Sanchez had
made any improper statements to employees.
1091DOLLAR RENT-A-CAR
Benita Perez was scheduled to take her day off on June
8. Nevertheless at 8 a.m., she received a call from Supervisor
Mike Poulsen who told her that she had to go to the office
of Manager James Wiley who had something important to
discuss with her. (At this point she assumed that she was
going to be named employee of the month.) She arrived at
about 9 a.m. and along with Sanchez, who also was invited
to the meeting, waited around before being called in to meet
with Wiley and McChristy.
The meeting which ensued was conducted by McChristy
with Wiley taking notes. Although there is some variance be-
tween the versions given by the four people who testified
about this meeting, I believe that the following is what took
place. The first thing that happened was that McChristy,
without explaining the purpose of the meeting, said that he
had information that Perez and Sanchez had been discussing
the Union in the breakroom, and asked if this was true.
When Sanchez admitted that this was so, McChristy de-
manded to know what they had talked about. At this point,
Benita Perez said that they really had not been talking about
the Union, whereupon McChristy said that he was confused
because the two were contradicting each other. After stating
that he had to get this straightened out, McChristy pressed
Sanchez in a cross-examination mode by asking, ‘‘Willie, did
you in fact get involved in some kind of conversation with
Perez in the break room about union issues?’’ At this junc-
ture, Perez realized that she had not been called down to be
given an award, and Sanchez also began to be scared.
Sanchez said that he felt that there was a group out to get
him fired and Perez stated that she knew (via union instruc-
tions) where and when she was entitled to talk to employees
about the Union. McChristy told Perez that she could not
talk about the Union to employees during her working hours
or when she was transporting employees in the van. He told
her that she could only talk about the Union with other em-
ployees during her breaks, during lunchtime, and off the
property. (Perez’ testimony on this point is buttressed, in my
opinion, by the notes taken by Wiley which is G.C. Exh. 2.)
My sense is that this meeting was getting more and more
intense and that Perez finally stated that she thought that she
was going to be fired because of her union activity. At this
point, McChristy stopped the meeting, called in another em-
ployee who could translate English and Spanish, and told
Perez that she was not going to be fired and that she had
a right to express her beliefs. Soon thereafter, Perez was al-
lowed to leave the meeting.
McChristy testified that the purpose of the meeting was
simply to find out whether Sanchez had violated instructions
given to all supervisors not to talk to the employees about
the Union. He states that his concern was based on the belief
that the supervisors, not being trained in labor law, should
not talk to employees because they might make the Company
liable for their actions.
In my opinion, if this was McChristy’s intent, it could eas-
ily have been done without Benita Perez being present. He
simply could have called Sanchez into the office, asked if he
was talking to employees about the union campaign, and reit-
erated his instructions to refrain from so doing. Instead, he
called Perez in from her scheduled day off, made her wait
for the meeting to begin, and grilled the two of them as to
whether they had talked about the Union on the previous
day. This was done without any knowledge of what they had
said and without any inkling that Sanchez may have said
anything improper. In fact, I don’t believe McChristy’s asser-
tion as to why he held this meeting and I conclude that being
aware that Benita Perez was a key union supporter, he com-
pelled her attendance in order to interrogate and intimidate
her using Sanchez as a shield to do so. Moreover, I believe
that he told her that she should refrain from talking to em-
ployees about the Union except on her breaks and off the
property.
Pursuant to the Board’s view of the law, interrogation of
employees will violate the Act if, considering the totality of
the circumstances, it is deemed coercive. Rossmore House,
269 NLRB 1176 (1984), affd. sub nom. Hotel & Restaurant
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985);
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985); Raytheon
Co., 279 NLRB 245 (1986). In this respect, the evidence
shows that McChristy did not notify Perez as to any legiti-
mate purpose for the meeting and his manner was, in my
opinion, aggressive and intimidating. I therefore conclude
that the Respondent violated Section 8(a)(1) in this respect.
I also conclude that McChristy’s statements to Perez re-
garding the limits of her permitted solicitation activity was
also violative of Section 8(a)(1) of the Act. In accordance
with Our Way, Inc., 268 NLRB 394 (1983), a prohibition on
solicitations in the workplace on ‘‘work time’’ would be pre-
sumptively legal whereas such a prohibition during ‘‘work
hours’’ would be preemptively illegal. Further, even where a
rule is presumptively valid, such a prohibition will violate
the Act where it is directed only against union solicitations
and applied in a discriminatory fashion. Southwest Gas
Corp., 283 NLRB 543 (1987); Marathon LeTourneau Co. v.
NLRB, 699 F.2d 248 (5th Cir. 1983); Lawson Co., 267
NLRB 463 (1983).
Based on the credited testimony of Benita Perez, I find
that McChristy told her, notwithstanding the nonexistence of
any prior written rules, that she could not talk about the
Union to other employees except during lunch and break
times. This limitation was, in my opinion, overly broad and
would prohibit her from soliciting at times and places which
would not interfere with her own work or the work of others.
Nor is there any evidence that such a prohibition if applied
to Perez would be necessary in relation to the Company’s
ability to deal with its customers. Finally, the evidence
shows that the Company did not have any preexisting rule
and permitted antiunion campaigning on its premises during
working hours
The testimony of Perez did not, however, establish that
McChristy actually threatened her with discharge although
this is what she inferred. To this extent, the evidence does
not support the allegation that the Respondent threatened em-
ployees with discharge.
III. THE OBJECTIONS
To the extent not withdrawn at the hearing, the Union’s
objections were as essentially as follows:
1. The union organizing committee was notified that Em-
ployer Representative Claire McChristy offered pay raises to
employees within the PDI classification who would vote
‘‘no.’’
2. On or about August 10, 1993, the Employer had Or-
lando police officers escort employee Benita Perez, a union
adherent, off common property owned by the Greater Or-
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 McChristy testified that after hearing Conner’s testimony he
called Edward Avila in California and was told by Avila that he did
not ask Conner to ask the question. On cross-examination, when
asked by Egan how he could contact Avila, McChristy stated that
he didn’t think it was possible because of the earthquake.
lando Aviation Authority where she was engaged in
handbilling during the week preceding the election despite
permission from GOAA to handbill there; and the Employer
thereafter advised the bargaining unit employees what had
been done in an attempt to intimidate the employees.
3. That on or about August 17, 1993, Union Representa-
tive Jose Navedo and employees Miguel Alicea and Freddy
Espinal handbilled in the area approved by GOAA the em-
ployee parking lot. Subsequent to the handbilling, employees
Alicea and Espinal were advised by the Employer that they
were under investigation for their actions.
The Regional Director also ordered that the allegations set
forth in the unfair labor practice complaint be considered in
relation to the validity of the election even though not spe-
cifically raised by the Union in its Objections. Framed Pic-
tures Enterprise, 303 NLRB 722 (1991).
I note at the outset that the Union presented no evidence
to support Objection 3 and therefore that objection is over-
ruled. I also note that I have already concluded that the
Company, on July 8, 1993, 1 day after the petition was filed,
coercively interrogated employee Benita Perez and unlaw-
fully directed her to refrain from solicitation on behalf of the
Union.
Objection 1
Juan Mendez, who was employed at the Company as a
leadman at the time of the election, testified that in June
1993, he was asked to attend a meeting with Claire
McChristy, James Wiley, and one of McChristy’s consult-
ants, Edward Avila. He states that at this meeting, he was
asked to talk to his coworkers and try to convince them to
vote against the Union. He states that he was promised a su-
pervisory position if he did so.
Mendez testified that he carried out his part of the bargain
but never received the promotion that he was promised; in-
stead being laid off after the election on September 19, 1993.
McChristy denied the allegations made by Mendez. He as-
serts that on one occasion, Mendez approached him and
Wiley about whether a supervisory job would soon be open
and stated that he really supported the Company and that this
should be given consideration in the Company’s choice. Ac-
cording to McChristy, Wiley said that if the Company had
an opening, it would be posted and that Mendez would be
treated the same as any other applicant.
The Respondent did not call Wiley or Avila to rebut
Mendez’ claim. While this is understandable in the case of
Avila who lives in California, it is noted that Wiley had al-
ready testified on other matters and was available. Moreover,
I was more impressed by the demeanor of Mendez than that
of McChristy. I therefore shall credit the testimony of
Mendez and conclude that at some point in June 1993, he
was offered a promotion to campaign against the Union. Al-
though Mendez could not be certain as to when this meeting
took place, it most probably occurred after June 7 when the
petition was filed.
About 2 weeks before the election in Orlando, there was
a similar election among the Company’s employees at
Tampa, Florida (on July 30, 1993). Almost immediately after
the Union lost that election, the Company raised the hourly
wage rate of its regular employees by 50 cents per hour and
raised the wage rate of the leadpeople by $1 per hour. (The
Tampa employees who received these raises were in the
same categories as the employees in Orlando who were
scheduled to vote on August 20, 1993.)
The credited testimony of employee Billy Joe Conner was
that before the election, he was asked by consultants Oscar
Carlos and Edward Avila to encourage people to vote ‘‘no.’’
Conner also testified that they asked him to ask McChristy
at a meeting held on August 16 if the employees at Orlando
would get the same raises as those given to the employees
at Tampa.
According to Conner, just before the August 16 meeting,
he was reminded by McChristy to ask the question which he
did. In this respect, Conner testified that after being recog-
nized from the floor, he said that he had heard that the
Union was voted out at Tampa and that the employees there
had gotten raises of 50 cents and $1. He states that he asked
McChristy if the employees at Orlando would get the same
raises if they voted against the Union. According to Conner,
McChristy responded that there was a good possibility that
the Orlando employees would get these raises.
Employee Isabel Burgos also testified about the August
1993 meeting. (Actually there were two meetings held on
that date because the room was not big enough to accommo-
date all the employees.) She testified that one of the employ-
ees (she believed it was Conner) asked a question about the
Tampa election and about raises being given to those em-
ployees after the election. According to Burgos, McChristy
responded by saying that it was true that the Tampa employ-
ees had been given raises and that he implied that the same
thing would happen with the Orlando employees if they
voted against the Union.
Another employee Miguel Alicea testified that she recalled
that Billy Conner asked whether the rumors were true that
the Tampa employees had gotten raises after they voted
against the Union. She states that McChristy responded by
saying that although he couldn’t promise anything, he could
see no difference between the Company’s employees in
Tampa and those in Orlando.
McChristy denied that he or his assistants set up Conner
to ask him a question at the August meeting.2 He states that
an employee asked about pay increases in Tampa and he told
the group that the Tampa employees did in fact receive pay
increases after the election. He testified that he told the em-
ployees that just because the employees in Tampa received
raises this did not necessarily mean that it would also happen
in Orlando. He states that he said ‘‘that could be construed
as a promise and I’m not going to do that.’’
It probably is true that McChristy did not explicitly prom-
ise a wage increase to the Orlando employees if they voted
against the Union. But it also seems to me, based on the
credited testimony of employees Conner, Burgos, and Alicea
that McChristy was being too clever by half. In my opinion,
the intent of his response to the planted question was to give
the employees good reason to believe that if they, like the
Tampa employees voted against the Union, they too would
receive the same raises.
In my opinion, the Union has proven by a preponderance
of the evidence that employee Mendez was promised a su-
1093DOLLAR RENT-A-CAR
3 Even if these facts were construed as falling outside the specific
allegations of the Union’s Objection 1, they were fully litigated and
can be used as the basis for setting the election aside. See White
Plains Lincoln Mercury, 288 NLRB 1133, 1138–1139 (1988).
pervisory position if he campaigned against the Union and
that other employees, on August 16, 1993, were impliedly
promised wage increases if they voted against the Union. As
this conduct occurred after the petition was filed and as it
is reasonably related the allegations of the Union’s Objection
1, I shall sustain this objection.3
Objection 2
On Friday, August 13, 1993, at about 1:30 p.m., Benita
Perez arrived at the employees’ parking lot with her 17-year-
old daughter and proceeded to offer leaflets to employees
who either were coming off their shifts to go home, or arriv-
ing at the lot to go to work. This parking lot (which I as-
sume is rented by the Company from the Airport) is used
mainly by its employees and is located about a mile away
from their work locations. It is not used by the public and
to a lesser extent it is used by the Company to park its rental
cars.
Perez, in addition to handing out these leaflets which were
written in Spanish, also displayed a blown up version of the
leaflet so that employees who did not take the leaflet would
nevertheless be able to read its contents. As the shift change
is at 3 p.m., the afternoon employees would generally arrive
at the parking lot at about 2:40 p.m. The morning shift em-
ployees who finish at 3 p.m., would normally arrive at the
parking lot at about 3:10 p.m. (The Company operates a
shuttle service to transport employees to and from the park-
ing lot.)
According to Perez, who had on a Teamsters T-shirt, she
stationed herself at the guard shack and encountered no prob-
lems until after the new guard came on duty at about 2 or
2:30 p.m. She states that the new guard asked her what she
was doing there and said that she could not remain because
this was company property. Perez told the guard that she was
an off-duty employee and believed that she had a right to be
there. According to Perez, after the guard made a phone call,
Susan Jacome arrived in a car, pointed a camera at her, and
asked Perez to open the blown up version of the leaflet that
she was carrying. Perez testified that Supervisor Tom Fitz-
gerald arrived in another car and told her that she would
have to go off the property. At this point, according to Perez,
employees began to arrive to pick up their cars and Fitz-
gerald told her to wait at Cargo Road while he called the air-
port’s security people. Perez states that a few minutes later,
one of the employees (named Maggie) started yelling that her
license plate had been stolen and about 5 minutes later a
group of police officers and GOAA people arrived in their
cars. Perez states that one of the guards accompanied by a
policeman told her that she could not remain on the property
and that Maggie was complaining that someone had stolen
her license plate. Given these circumstances, Perez decided
to leave and she never again attempted to hand out leaflets
at the parking lot. Although there were different estimates as
to the number police cars that showed up at the scene, the
low estimate given by the Company’s witness was that there
were three police cars and one GOAA car.
The only witness called by the Employer regarding this in-
cident was Susan Jacome who, among other things, acts as
a liaison between the Company and its security guard serv-
ice. She testified that at about 2:50 p.m., she received a
phone call from James Wiley who told her that there were
employees congregating at the employees’ parking lot and he
suggested that she take a camera to the guard shack. Jacome
went to the shack where she saw Benita Perez and employee
Isabel Burgos with a sign that was written in Spanish. She
states that she gave the camera to the guard without attempt-
ing to take any pictures and that Tom Fitzgerald drove up
within 3 minutes of her arrival. Jacome testified that Fitz-
gerald, on his arrival, called the Orlando Police Department,
whereupon three police cars and a GOAA vehicle arrived at
the scene. She asserts that when the police were told by the
GOAA people that the employees did not have permission to
picket, the police asked the employees to leave the area.
Initially, I wondered if the police presence at the parking
lot was prompted by the fact that an employee asserted that
her license plate had been stolen. However, the testimony of
Jacome was that this did not happen until after Fitzgerald
called the police department and it therefore played no role
in the appearance of the police at the scene.
The Respondent essentially disclaims any responsibility for
the actions of the police, claiming that ‘‘there was no evi-
dence that the company called the police, much less a large
force of police, to embarrass or coerce or threaten the em-
ployees or the Union.’’ The Respondent’s brief goes on to
state: ‘‘It is impossible to discern why several OPD cars and
a GOAA car responded to the Company’s single telephone
request for information; perhaps the answer lies in the fact
that, since the OPD Airport contingent is a small one, ‘they
seem to get involved in anything, just because nothing ever
happens.’’’
While I appreciate the imaginative argument made by Re-
spondent’s counsel, I cannot agree with his conclusion. Perez
stationed herself at the entrance to the parking lot with a sign
and leaflets for distribution during the shift change period.
There was no evidence and no assertion by the Company that
Perez was doing anything improper or that her activities were
in any way impeding employees. Nor was Jacome told by
Wiley that there was any vandalism going on when he told
her that employees were congregating at the parking lot and
instructed her to go to the lot with her camera. I credit the
testimony of Perez to the effect that Jacome and Fitzgerald
told her to leave the property. As the evidence shows that
Fitzgerald called the police after telling Perez to get off the
property, I don’t need a smoking gun to infer that the police
arrived at his request in order to have Perez removed from
the parking lot area. Having put in motion the chain of
events, the Company cannot now claim that it was not re-
sponsible for the fact that a relatively large contingent of po-
lice and airport security vehicles arrived at the parking lot
like some cavalry charge in an old western movie.
In Nashville Plastics Products, 313 NLRB 462 (1983), the
Board held that an employer violated Section 8(a)(1) of the
Act by prohibiting off-duty employees from engaging in
union solicitation and distribution of union literature on com-
pany property during nonworktime in nonwork areas. The
Board stated:
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 NLRB v. LeTourneau Co. of Georgia, 324 U.S. 793 (1945).
5 See Playskool Mfg. Co., 140 NLRB 1417, 1419; Dal-Tex Optical
Co., 137 NLRB 1782, 1786–1787 (1962).
6 If no exceptions are filed as provided by Sec. 102.46 and Sec.
102.69(e) of the Board’s Rules and Regulations, the findings, con-
clusions, and recommended Order shall, as provided in Sec. 102.48
of the Rules, be adopted by the Board and all objections to them
shall be deemed waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Furthermore, an off-duty employee seeking access to
his employer’s property to distribute union handbills,
unlike a non employee union organizer, falls within the
scope of Supreme Court decisions protecting work-
place organizing activities. Thus in Beth Israel Hospital
v. NLRB 437 U.S. 483, 491 (1978), the Court stated
that ‘‘the right of employees to self-organize and bar-
gain collectively established by Section 7 . . . nec-
essarily encompasses the right effectively to commu-
nicate with one another regarding self-organization at
the jobsite.’’ And in Eastex, Inc. v. NLRB, 437 U.S.
556, 574 (1978), the Court upheld the Board’s view
that the workplace ‘‘is a particularly appropriate place
for the distribution of Section 7 material, because it ‘is
the one place where [employees] clearly share common
interests and where they traditionally seek to persuade
fellow workers in matters affecting their union organi-
zational life.’’’ [Quoting Gale Products, 142 NLRB
1246, 1249 (1963).]
In sum, if analogies are to be drawn, we find that
the off-duty employees in this case who sought access
to the Respondent’s premises for organizational pur-
poses on days when they were not scheduled to work
most closely resemble the employees in the LeTourneau
case, whose right to distribute union literature on the
outside areas of the employer’s premises on their own
time was upheld by the Supreme Court.4
Given my findings of fact regarding this incident and ap-
plying the law as set out in Nashville Plastics, supra, I con-
clude that the Union’s Objection 2 should be sustained.
CONCLUSIONS OF LAW
1. By interrogating an employee about her union activities,
the Respondent has violated Section 8(a)(1) of the Act.
2. By prohibiting an employee from soliciting except at
her breaktimes or lunchtimes, the Respondent has violated
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The Union’s Objections 1 and 2 are sustained.
5. The conduct found to be objectionable, together with
the unfair labor practices found above, is sufficiently serious
to set aside the election and to hold a new one.5
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Scamp Auto Rental I, Inc., d/b/a Dollar
Rent-A-Car, Orlando, Florida, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union membership
or activities.
(b) Prohibiting employees from engaging in union solicita-
tion on company property during nonworktime in nonwork
areas, or discriminatorily applying any no-solicitation or no-
distribution rules.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its facility in Orlando, Florida, copies of the at-
tached notice marked Appendix.7 Copies of the notice, on
forms provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees, are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that Case 12–RC–7622 be re-
manded to the Regional Director and that the election held
on August 20, 1993 be set aside and that a new election be
scheduled.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT coercively question you about your union
support or activities.
1095DOLLAR RENT-A-CAR
WE WILL NOT prohibit our employees from engaging in
union solicitation on company property during nonworktime
in nonwork areas or otherwise discriminatorily apply any no-
solicitation or no-distribution rules.
WE WILL NOT in any like or related manner restraining or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
SCAMP AUTO RENTAL I, INC., D/B/A DOLLAR
RENT-A-CAR