Hertz Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1999

329 N.L.R.B. 911 (N.L.R.B. 1999)

HERTZ CORP. 911
The Hertz Corporation and International Brother-
hood of Teamsters, Local 390, AFL–CIO. Case
12–CA–19733
October 26, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On June 8, 1999, Administrative Law Judge William
N. Cates issued the attached bench decision. The Gen-
eral Counsel filed exceptions and a supporting 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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Shelley B. Plass, Esq., for the General Counsel.
Frank B. Shuster, Esq., for the Respondent.
Christine Catuccy, Esq., and Libby Herrera-Navarrete, Esq.,
for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. I heard this
case in trial in proceedings conducted in Miami, Florida, on
May 13, 1999. At the conclusion of trial proceedings, and after
hearing oral argument by counsel for the General Counsel (the
General Counsel), counsel for the Hertz Corporation (the Com-
pany), and counsel for International Brotherhood of Teamsters,
Local 390, AFL–CIO (the Union), I issued a bench decision
pursuant to Section 102.35(a)(10) of the National Labor Rela-
tions Board’s (the Board) Rules and Regulations, setting forth
findings of fact and conclusions of law, including my ultimate
conclusion that the unfair labor practice complaint lacked merit
and should be dismissed.
For the reasons stated by me on the record at the close of the
trial, I found the Company did not, through its agent and super-
visor, threaten employees with loss of retroactive pay if they
chose to participate in a strike. The linchpin of the General
Counsel’s one allegation complaint pertained to a one-on-one
conversation between an employee and a supervisor. The Gen-
eral Counsel did not call that employee to testify; nor, was any
reason advanced for the failure to do so. The testimony of the
supervisor, as credited, did not contain any unlawful threat.
Accordingly, I dismissed the complaint in its entirety.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance 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.
I certify the accuracy of the portion of the transcript, as cor-
rected,1 pages 165 to 175, containing my bench decision, and I
attach a copy of that portion of the transcript, as corrected, as
“Appendix A.”
Exceptions may be filed in accordance with Section 102.46
of the Board’s Rules and Regulations, but if they are not timely
or properly filed, Section 102.48 provides that my bench deci-
sion shall automatically become the Board’s decision and order.
CONCLUSIONS OF LAW
The Company is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the National Labor
Relations Act (the Act), and has not violated the Act in any
manner alleged in the complaint.
ORDER2
The unfair labor practice complaint is dismissed.
APPENDIX A
BENCH DECISION
165
JUDGE CATES: On the record.

This is my decision in the matter of The Hertz Corporation
and International Brotherhood of Teamsters, Local 390, AFL–
CIO, Case 12–CA–19733.
The charge in this case was filed by the International Broth-
erhood of Teamsters, Local 390, AFL–CIO on October 27,
1998, thereafter amended on February 12, 1999, both the origi-
nal charge and the amendment were properly and timely served
on The Hertz Corporation.
I shall hereinafter refer to The Hertz Corporation as the
Company, and the International Brotherhood of Teamsters,
Local 390, AFL–CIO as the Union.
The Company, in this case, a Delaware corporation, has of-
fices and a place of business located in West Palm Beach, Flor-
ida. The Company is engaged in the business of renting vehi-
cles in various locations throughout the United States.
During the calendar year preceding the issuance of the Com-
plaint herein, the Company purchased and received at its West
Palm Beach, Florida, local market facility, products, goods and
services valued in excess of $50,000 directly from points out-
side the State of Florida.
The evidence establishes the parties admit, and I find the
Company is an Employer engaged in commerce within the
166
meaning of Section 2(2)(6) and (7) of the Act.
1 I have corrected the pages of the transcript containing my bench
decision in the following manner: P. 165, L. 1 inserted my before the
word decision; L. 9 deleted any; L. 17 placed a period after Florida,
deleted where and commenced new sentence with the; L. 25 deleted
that. P. 166, L. 6 deleted that, L. 23 deleted herein. P. 171, L. 21 de-
leted locations and from. P. 172, L. 1 added pay before the word retro-
active, L. 21 quotation marks after the word Employer, L. 23 inserted
or after the word coerce. P. 173, L. 17 deleted when.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, 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 pur-
poses.

329 NLRB No. 78
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912
The Union has negotiated numerous collective bargaining
agreements for the employees at issue herein. It has repre-
sented them by filing charges and other matters.
The evidence establishes the parties admit, and I find the Un-
ion is a labor organization within the meaning of Section 2(5)
of the Act.
The evidence establishes, the parties admit, and I find that
Evan Hoffmann, currently serving as the station manager of
operations and formerly the revenue manager for the Company,
at the location involved herein, is a supervisor and agent of the
Company within the meaning of Section 2(11) and 2(13) of the
Act.
The case herein primarily involves the customer sales repre-
sentatives or the customer service representatives, which have
been used interchangeably herein, at the West Palm Beach,
Florida location of the Company.
Perhaps inextricably intertwined is the negotiating history of
the Union and the Company regarding the customer sales repre-
sentatives.
There are approximately thirty customer service or customer
sales representatives at the West Palm Beach, Florida location
of the Company.
Perhaps there are as many as twenty-eight of them at the
West Palm Beach Airport itself, with the other two being down
at
167
the Company’s facility on Belvedere Road, I believe it was.
That there has been a long bargaining history between the par-
ties is certainly not disputed. In fact, customer service or cus-
tomer sales representative Ratz testified she had either been a
steward, an alternate steward, a business agent, or had been
involved with the Union, vis-a-vis negotiations and administra-
tion of contracts, for perhaps the last twenty-five
years.
So it’s clear that there is a long-standing bargaining relation-
ship between the parties herein.
The same Local Union negotiates agreements for other Hertz
employees at the locations I have mentioned, but at the request
of the General Counsel at the beginning of the trial, and based
on the Complaint allegations herein, I have specifically limited
the presentation of evidence in this case to the one unit of em-
ployees that are involved in this dispute.
The most recent collective bargaining agreement between the
parties applicable herein, expired, I believe, in January of 1998.
Negotiations began for a new collective bargaining agreement
between the parties.
However, those negotiations did not begin immediately upon
the expiration of the previous contract. The witnesses testified
that the relationship between the Company and the Union and,
specifically, the Union as it involves the customer sales repre-
sentatives, would wait sometimes perhaps weeks or
168
months before they actually started negotiating toward a new
collective bargaining agreement.
In this particular case, the contract expired in January of
1998 and the evidence indicates that negotiations toward a new
collective bargaining agreement did not begin until June 17,
1998, and perhaps there were a couple of negotiating sessions
in June, June 17 and June 18, 1998. No contract was arrived at
during those two negotiating sessions.
Another bargaining session was held on or about September
2, 1998 and, again, no collective bargaining agreement was
arrived at. And then, down in the middle of December 1998, a
collective bargaining agreement was arrived at.
The particular facts and the issues and the allegations in this
particular Complaint of the Government, involves the time
during which negotiations were taking place toward the con-
tract that it appears was arrived at in late December 1998.
The allegation of the Complaint, and there is only one, is set
forth in the Complaint at Paragraph 5 thereof. And in its
amended state, reads as follows:
“In or about early October 1998, a more precise date being
unknown to the undersigned, the Company, by its supervisor
Hoffmann, at Respondent’s Belvedere Road facility, threatened
its employees with a loss of retroactive pay if they chose to
participate in a strike.”
The Government stated that the evidence in support of that
169
particular allegation of the Complaint was limited to a conver-
sation that took place between Supervisor Hoffmann and Em-
ployee McClintock.
Before I get to the content of that conversation, retroactive
pay, as utilized and defined for this particular case, is that hav-
ing been the policy of the Company and Union not to com-
mence negotiations at a time before the contract expired, or as
the contract expired, but rather negotiations historically had
started at some later point, it had been the practice to have the
employees, if all conditions were met, be paid for the newly
negotiated wage rate from the date of the expiration of the pre-
vious contract.
And, in fact, one of the witnesses who testified equated it to
a bonus, that the employees always looked forward to the
amount of money they would receive that would constitute their
retroactive pay, and it was sort of a bonus to them.
They had been working for a previous pay schedule and all
of a sudden, they’re going to be paid more, and they’re going to
be paid more in a retroactive manner, to bring them within the
framework of the newly negotiated contract.
As I have indicated, it is in this posture that the unfair labor
practice allegation of the Complaint has its roots.
The case herein is specifically limited to one exchange be-
tween Employee McClintock and Supervisor Hoffmann. This
record only provides Supervisor Hoffmann’s account of that
170
conversation.
No party elected to call Employee McClintock, nor was any
explanation offered by any party as to why he was not called as
a witness. Therefore, Supervisor Hoffmann’s account of the
conversation is undisputed.
After having carefully observed Supervisor Hoffmann tes-
tify, I know of no reason to reject his testimony.
Supervisor Hoffmann testified that the conversation came
about in the following manner.
That he went to the Boca Raton, Florida, location where Mr.
McClintock worked and he was there for the purpose of observ-
ing, assisting, training, and helping Employee McClintock im-
prove his revenues.
Supervisor Hoffmann explained what he meant by that, that
he observed the individuals, and in this case Mr. McClintock,
as to how they could interact with the customers, the customers
HERTZ CORP. 913
being those wishing to rent automobiles, in order to enhance
their revenues.
Supervisor Hoffmann testified he was in good standing and
had a good relationship with all of the customer sales represen-
tatives, because of the nature of his job. It was his job to help
the customer sales representatives improve their revenues.
And he was visiting with Employee McClintock on the day
in question, which I believe he placed in October. If that is not
171
the exact date, for the purposes of this case, I find that it makes
no impact.
That he had observed Mr. McClintock perform his job for a
period of time and that after Mr. McClintock had no customers
with him, he and Mr. McClintock stepped into a room, appar-
ently behind the customer sales counter, and he explained to
Mr. McClintock how he could improve his performance.
And in the exchange, Mr. McClintock indicated that he had
been hearing a number of things from individuals regarding
retroactive pay, and he wanted to know if they would get it or
not.
And Supervisor Hoffmann testified he told Employee
McClintock, I don’t have a crystal ball, I can’t tell you what’s
going to happen. It is my understanding Hertz generally does
not pay retro pay to those who go on strike.
That is the conversation that counsel for the General Counsel
contends violated the Act.
Supervisor Hoffmann testified that he based the comments
that he made to Employee McClintock on his understanding of
the Company’s policies and practices and the feedback that he
had had from Company managers in the areas of Boston, Phila-
delphia and Detroit.
Did the Company have any policy or practice with respect to
retroactive pay?
The Government contends that its practice was to always
172
Pay retroactive pay and that consistently it had done so. I think
all of the witnesses who testified, who had an opportunity to
testify on that particular point, indicated that retroactive pay
had, in fact, always been paid to the customer sales representa-
tives in prior negotiations.
However, each of the witnesses who had an opportunity to
speak to the point, indicated there had never been a strike at the
West Palm Beach facility that involved the customer sales rep-
resentatives.
Likewise, the Company produced a letter that was sent to the
Union dated March 7, 1995, from the manager of labor rela-
tions for the Company, in which it was specifically speaking to
the counter sales representatives employed in the West Palm
Beach, Florida location.
And in that letter, the Company indicated to the Union,
among other items, “As I indicated to you, the Company agrees
that any wage increase finally negotiated will be retroactive to
January 31, 1995, provided that both parties continue to bargain
in good faith and further provided that there is no work stop-
page, slow down or other economic actions against this Em-
ployer.”
Was the comment that Supervisor Hoffmann made in Octo-
ber of 1998 of such that it would tend to coerce or threaten
employees and interfere with their rights?
The Government contends the comment, on its face, would
do
173
so and particularly when viewed in light of the fact that the
comment arose during the time of negotiations.
The Company contends that it would not violate the Act, that
nothing on its face in the comment would be coercive or threat-
ening and, specifically further, when viewed in light of the
Company’s policies and practices, that Supervisor Hoffmann
was simply stating the Company’s policy as expressed in corre-
spondence to the Union, and as perhaps engaged in at other
locations.
In the circumstances of this case, does Supervisor Hoff-
mann’s comments, his undisputed comments, reasonably have a
tendency to coerce and intimidate employees and violate the
Act?
I find that his comments would not. There was not a threat
herein to a pre-existing benefit. The Company had not raised
with the Union, nor the Union with the Company, the matter of
retroactive pay in the most recent contract negotiations at the
time the comment was made from Supervisor Hoffmann to
Employee McClintock.
Supervisor Hoffmann did not seek Employee McClintock
out to express some comments about retroactive pay, but rather
Employee McClintock came to supervisor Hoffmann and
sought the information involved.
Supervisor Hoffmann did not make an express statement that
certain things would happen. He simply stated that he had no
crystal ball, that he didn’t know what might happen, that it was
174
his understanding, and I’m persuaded one that could be rea-
sonably based upon the correspondence that had communicated
between the Company and the Union, as well as his uncontra-
dicted testimony about the policies that he had understood and
heard from others, that he was, in fact, expressing the policy of
the Company at the behest and request of the employee.
The subject matter had not been raised in negotiations. So I
shall dismiss the Complaint with respect to the threat as alleged
in Paragraph 5 of the Complaint.
And by the way, Paragraph 5 of the Complaint is limited,
specifically, by the General Counsel, to the exchange between
Hoffmann and McClintock.
In dismissing the Complaint, I reject the General Counsel’s
contention the past practice had always been to pay retro pay.
That is true in this particular case, but only because the cus-
tomer sales representatives had never engaged in a strike at this
facility that would have caused or possibly caused the Com-
pany to reject retroactive pay.
The customer sales representatives bargaining representative
had been placed on notice in prior contract negotiations, that
retroactive pay was subject to the employees not striking or
engaging in a slow down or work related stoppages. There was
that advisement clearly made to the Union in prior negotiations.
I likewise reject the General Counsel’s contention that
175
the prior negotiations cannot be considered, as to whether the
Company had a policy or not, as being contrary to the facts.
And further, I reject the General Counsel’s contention that
perhaps the personalities had changed and somehow a change
in personalities would change policy or change the parties’
understanding of the policy, when the matter was never dis-
cussed. I find that unpersuasive.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 914
I shall, upon receipt of the transcript, certify my decision in
this matter, which is to dismiss the Complaint, and it is my
understanding that when I have so certified the pages of the
transcript that constitute my decision to the Board, that the
appeals period for taking exceptions to my decision, runs from
that time.
I advise you, however, to follow the Board’s rules and regu-
lations rather than my understanding of them, because I believe
you’ll be in much better stead if you do.
It has been a pleasure to be in Miami, Florida, and I have en-
joyed hearing this case. Counsel for all sides have done a re-
markably good job in presenting the evidence, and perhaps
fortunate to some, and unfortunate to others, there are winners
and losers, and that’s the nature of the business.
I thank you for your attention, and this trial is closed.
(Whereupon, at 4:20 p.m., the hearing in the above-entitled
matter was closed.)