NOTICE: This opinion is subject to formal revision
before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
United Rentals,
Inc. and International
April 27, 2007
DECISION AND ORDER
By
Members Liebman, Schaumber, and Kirsanow
On
January 13, 2006, Administrative Law Judge William G. Kocol issued the attached
decision. The Respondent filed exceptions
and a supporting brief, the General Counsel and Charging Party filed answering
briefs, and the Respondent filed a reply brief.
The General Counsel filed a limited exception and supporting brief, and
the Respondent filed an answering brief.[1]
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 decided to affirm the judge's rulings, findings,[2]
and conclusions as modified herein and to adopt the recommended Order as modified.[3]
Since
at least 2001, the Respondent’s annual practice has been to evaluate employee
performance and, effective April 1 of each year, to grant merit-based wage increases. On March 4, 2005, the International Union of
Operating Engineers, Local 12, AFL–CIO (Union), was certified as the bargaining
representative of a unit of the Respondent’s employees at its facility in
The
Respondent’s performance appraisal and wage-increase system is fully explained
in the judge’s decision, but we highlight the most pertinent features. First, the Respondent’s performance review
process involves fixed criteria and established procedures. Employees are evaluated against a set of job
responsibilities and key behaviors set forth on an evaluation form; the review
results in one of four ratings, ranging from “very good” to
“unacceptable.” The Respondent has
“forced distribution” guidelines, which managers and supervisors are strongly
encouraged to follow, concerning the percentage of employees to be placed in
each of the four ratings categories.[4] Second, in making its annual April 1
wage-increase decisions, the Respondent regularly uses the same tool—a “merit
matrix”—to calculate a recommended wage increase based on certain
criteria: the Respondent’s budgeted
amount for wage increases,[5]
the employee’s position, grade, and corresponding salary band, and the
employee’s performance rating. Using
“MeritNet,” described as a “Web-based total compensation planning tool,” the
Respondent inputs the data from its evaluation process into a “merit matrix” to
arrive at a recommended increase for each employee.[6] The Respondent’s branch managers have the
discretion to adjust this recommended increase within their branch’s allocated
pool of wage-increase funds; district managers also have the discretion to
reallocate wage-increase funds between branches.
Under
Sections 8(a)(5) and 8(d) of the Act, an employer that is party to a
collective-bargaining relationship is obligated to bargain in good faith over
“wages, hours, and other terms and conditions of employment.” As a consequence of this obligation, such an
employer violates Section 8(a)(5) if it unilaterally changes a term or
condition of employment without first providing the union with notice or an
opportunity to bargain.[7] Thus, where a past practice of adjusting wages
constitutes a term or condition of employment, the unilateral discontinuance of
that practice violates Section 8(a)(5).[8] A merit wage-increase program constitutes a
term or condition of employment “when it is an ‘established practice
. . . regularly expected by the
employees.’”[9] Factors relevant to this determination
include “the number of years that the program has been in place, the regularity
with which raises are granted, and whether the employer used fixed criteria to
determine whether an employee will receive a raise, and the amount thereof.”[10]
There
is no dispute that in 2005, the Respondent withheld evaluations and wage
increases from its represented employees at
The
Respondent has used MeritNet as part of its wage-increase program at
In
finding that the Respondent violated Section 8(a)(5) by failing to give 2005
evaluations and wage increases to unit employees at Pico Rivera, the judge
relied principally on the Board’s decision in Daily News of Los Angeles, supra.
Excepting, the Respondent seeks to distinguish Daily News as involving a
“mechanistic” system for determining wage increases, and to characterize its
own system as almost wholly discretionary.
Contrary to the Respondent’s argument, its wage-increase decisions
involve far less discretion than those in Daily
News. In Daily News, the employer annually evaluated the performance of each
employee and granted merit-based wage increases that were entirely
discretionary in amount.[13] Notwithstanding that significant
discretionary component, the Board found, and the D.C. Circuit agreed, that the
employer’s wage increases were not completely discretionary because they were
based on the fixed criterion of merit.[14] Here, the Respondent bases employees’ wage
increases on a calculus from its “merit matrix,” factoring in employees’
performance ratings and salary range positions.
Thus, the conclusion that the wage-increase program at issue here constituted
a term or condition of employment is even more compelling than the like
conclusion concerning the wage-increase program at issue in Daily News.
In
support of its argument that its wage-increase program was not an established
practice, the Respondent relies on Acme
Die Casting v. NLRB.[15] That reliance is misplaced, as Acme is
plainly distinguishable. There, the
record showed a past practice of across-the-board wage increases varying in
amount and granted, in the court’s view, at somewhat irregular intervals. The court found that the timing of the increases
“was by no means fixed,” and more importantly, that there was no evidence that
the employer “had ‘constrained’ itself by ‘established procedures’ or ‘fixed
criteria’ for establishing the amount of the increases.”[16] Here, by contrast, increases had been
regularly effective the same time each year (April 1) for the previous 4 years,
and the amount of the increases was based on established procedures and fixed
criteria.
In
sum, the Respondent’s practice of conducting merit reviews and adjusting wages
based on those reviews and other fixed criteria was an established practice
regularly expected by its employees, and consequently a term or condition of
employment. By discontinuing reviews and
increases in 2005 for unit employees at its
ORDER
The
National Labor Relations Board adopts the recommended Order of the administrative
law judge as modified below and orders that the Respondent, United Rentals,
Inc.,
1. Delete paragraph 1(g) and reletter the
subsequent paragraph accordingly.
2. Substitute the attached notice for that of
the administrative law judge.
Dated,
Wilma B. Liebman, Member
Peter C. Schaumber, Member
Peter N. Kirsanow Member
(seal) National
Labor Relations Board
APPENDIX
Notice
To Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The
National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU
THE RIGHT TO
Form,
join or assist a union
Choose
representatives to bargain with us on your behalf
Act
together with other employees for your benefit and protection
Choose
not to engage in any of these protected activities.
We will not fail to give unit employees evaluations and pay
increases, if warranted, without first giving the International Union of Operating
Engineers, Local 12, AFL–CIO, notice and an opportunity to bargain about the
matter. The unit is:
All
full-time and regular part-time customers service associates/yardmen,
dispatchers, mechanics, parts associates, safety analyst, sales coordinators,
drivers and shop foremen employed at or out of the Employer’s facility located
at 3455 San Gabriel River Parkway, Pico Rivera, California; excluding parts manager,
outside sales representatives, guards and supervisors as defined in the Act.
We will not fail to give employees evaluations and pay
increases, if warranted, because the employees supported the
We will not implement a dress code that prohibits employees
from displaying a union logo.
We will not implement a dress code because the unit
employees supported the
We will not restrict the use of company vehicles because the
employees supported the
We will not rescind the practice of allowing employees to
take days off without pay without first giving the Union notice and an opportunity
to bargain about the matter.
We will not in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights set forth above.
We will resume the practice of performing yearly
employee evaluations and granting wage increases, if warranted.
We will perform the evaluations and retroactively grant
pay increases, if warranted, for 2005, plus interest.
We will rescind the April 20, 2005 dress code.
We will rescind the April 20, 2005 notice restricting
the use of company vehicles, restore the practice that existed prior to its
issuance, and make the employees whole for any losses they suffered as a result
of the unlawful conduct, with interest.
We will revoke the rescission of the practice of allowing
employees to take days off without pay and restore the practice that existed before
the unlawful rescission.
United Rentals, Inc.
Ami Silverman
and Irma Hernandez, Esqs., for the General
Counsel.
James E. McGrath, III and Daniel F. Murphy, Jr., Esqs.
(Putney, Twombly, Hall & Hirson, LLP),
of
David Koppelman, Esq., for the
DECISION
Statement of the Case
William G.
Kocol, Administrative Law Judge. This case was tried in
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel2 I make the following.
Findings of Fact
i. jurisdiction
Respondent, a corporation, rents and sells construction
equipment and supplies at its facility in
ii. alleged unfair labor practices
A. Background
Respondent operates over 700 facilities throughout the
All full-time and regular part-time customer service associates/yardmen, dispatchers, mechanics, parts associates, safety analyst, sales coordinators, drivers and shop foremen employed at or out of the Employer’s facility located at 3455 San Gabriel River Parkway, Pico Rivera, California; excluding parts manager, outside sales representatives, guards and supervisors as defined in the Act.
The parties thereafter engaged in collective bargaining
but as of the hearing in this case no contract has been reached. Peter Meany is
Respondent’s director of labor relations; he has been Respondent’s chief
negotiator in bargaining with the
Effective January 2005, Randy Hall was Respondent’s district
manager; he oversaw the operation of nine “aerial facilities” located in
In United Rentals, JD(SF)–36–05 Judge William L. Schmidt concluded that Respondent violated Section 8(a)(3) and (1) by discharging an employee on March 30, 2004, because the employee had supported the Union and violated Section 8(a)(1) by coercively interrogating an employee concerning union activity and impliedly promising to consider an employee’s pay increase if the employees rejected unionization. Exceptions were filed and the matter is pending before the Board.
B. Performance Appraisals and Merit Increases
Respondent’s handbook describes its compensation program as very competitive and designed to attract, retain, and develop talented people in support of its mission. It describes Respondent’s “pay for performance” program as designed to reward employees for individual contributions to Respondent’s overall success. The goals of the compensation program are described as:
Recognize and reward employees based on their individual abilities and performance.
Obtain the highest possible degree of employee performance, morale, and loyalty through fair and equitable compensation.
Ensure internal compensation equity and consistency between all departments and divisions of the company.
Provide uniform methods of establishing compensation for hiring, performance-based merit increases, promotions and other pay adjustments.
Respondent sets salary bands for the various job classifications based on salary surveys that it purchases. Those salary bands may be further adjusted for geographic differences for the costs of labor.
Respondent has a policy of providing employees with performance evaluations and pay increases. Respondent’s employee handbook describes its performance evaluation process as an opportunity for the employee and supervisor to formally discuss the employee’s job performance, review how well the employee did in attaining goals the previous year, set goals for the next evaluation period, and discuss the employee’s career development. The handbook continues:
Your performance evaluation is an important tool used by management to correct any performance shortfalls, and to award merit increases, salary adjustments, and promotions.
Respondent uses an evaluation form that lists several job responsibilities and key behaviors and employees are rated in those responsibilities and behaviors on a four-part scale from very good to unacceptable. Respondent has guidelines concerning the percentage of employees who should receive each rating, although the guidelines are not rigidly enforced. Respondent sets a pay increase band for each of the final ratings received by employees. However, if employees are already at the top of their salary band they may not receive a salary increase even though they have received favorable evaluations.
Salary increases are effective April 1 and evaluations are completed and discussed with employees before that time. Each year Respondent sets a percentage of base pay for pay increases. This percentage is based on factors such as surveys of what other companies are paying, the economy in general, and Respondent’s financial situation. In determining the pay increases that follow the appraisal process Respondent’s managers and supervisors use the MeritNet System, described as a web-based total compensation planning tool. It provides Respondent’s managers and supervisors with the ability to make pay increase recommendations while monitoring how those recommendations are tracking against the total pool of money allocated for pay increases. It uses a merit matrix that takes into account an employee’s performance rating and the position the employee’s salary falls within the salary band set for the employee’s job grade. The merit matrix then recommends a merit increase amount if warranted by the employee’s evaluation rating and position in the employee’s salary band. The branch manager of each facility may adjust the recommended wage increases so long as the total amount remains within the pool of money allocated for the facility. District managers may reallocate money for wage increases from one branch to another so long as the total increases remain within the pool of money set for the district. In applying the merit matrix Respondent strongly encourages its managers to follow guidelines concerning the percentage of employees who should receive each of the four ratings used in the evaluation.
Since at least 2001 employees at the
The parties met for the first bargaining session on May 5.
Kurt Glass is the Union’s recording corresponding secretary and was the
On May 6 the Union sent Respondent a letter claiming that
at the May 5 bargaining session Respondent had stated that it had ceased its
historical practice concerning employee evaluations and wage increases due to
the
Meany testified that he made the decision not to continue
the merit pay increases for 2005 for the unit employees at the
I knew that the issue of certification was pending and
that once the Union was certified, I had an obligation to bargain with the
Analysis
As indicated, the complaint alleges that Respondent violated
Section 8(a)(3) and (5) by failing to give the unit employees their evaluations
and merit increases in 2005. Turning first to the 8(a)(5) allegation, an
employer violates the Act when it unilaterally changes working conditions of
employees represented by a labor organization. NLRB v. Katz, 369
Respondent argues that the Act prohibited it from continuing to grant the employees the wage increases. It describes the MeritNet system as:
a comprehensive, interactive, discretionary wage system, the outcome of which depends on numerous factors, including but not limited to, an employee’s performance. Imposition of the company’s performance evaluation system in the midst of ongoing negotiations is contrary to the Act and would disrupt, rather than further, negotiations toward a labor agreement.
Respondent argues that Daily News is not applicable because its MeritNet process for determining wage increases is more discretionary than that of the employer in Daily News. It argues that the raises given to other employees effective April 1 but not given to the unit employees at that time were discretionary as to time as well as amount. I reject that contention. The process described above has definite time lines ending with pay increase, if warranted, effective on about April 1 of each year. That Respondent occasionally gave pay increases in addition to those effective April 1 does not detract from the regularity of the April 1 time line. Respondent argues:
If (its evaluation and wage process became) entrenched in
the parties’ bargaining relationship, United Rentals would retain the
unassailable prerogative to periodically award, alter or withhold wage
increases without the input of the Union. The Company would further be entitled
to solicit grievances and deal directly with employees over not merely wages,
but all terms and conditions of employment at the
No such results, however, would flow from a requirement
that Respondent continue to adhere to its evaluation and wage process; the
In the alternative, Respondent argues that if Daily News cannot be meaningfully
distinguished from the facts of this case, then Daily News was incorrectly decided and is inconsistent with Katz.
However, that argument was made and rejected by both the Board and the Court in
Daily News. Respondent cites Acme Die Casting, 93 F.3d 854 (D.C. Cir.
1996); however, I am bound to follow Board law. Respondent cites Ithaca Journal-News, 259 NLRB 394
(1981). However, in that case, unlike here, the Board concluded that the
employer did not conduct any formal or written evaluations of the employees and
that a significant number of wage increases were randomly granted. That case is
therefore distinguishable. Respondent also argues that the
In sum, I reject the arguments made by Respondent that it was privileged to deny unit employees at the facility their customary evaluations and wage increases. I conclude that by doing so Respondent violated Section 8(a)(5) and (1) of the Act.
I turn now to argument that Respondent violated Section
8(a)(3) and (1) by failing to grant the employees their evaluations and wage
increases in 2005. I apply Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 800 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982); NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983). One of the elements of finding a violation under
Wright Line is that the employer had knowledge of the union activities of its
employees. That element is easily established in this case; the Union won an
election among the employees at the
Another element for showing a violation under Wright Line is to establish that an
employer was hostile to the union activities of the employees. In this case the
General Counsel points me to two statements made by witnesses at the trial that
he claims will show Respondent exhibited the requisite animus. I turn to
examine that testimony. As more fully described below, on about April 20
Respondent announced a change concerning when employees could take Respondent’s
vehicles home with them at the end of the workday. A meeting was held at which
this and other changes were discussed with the employees. After the meeting the
field service mechanics talked to Donnie Richardson, Respondent’s operations
manager, and Marius Dornean, Respondent’s service manager. Martin Urrea has
worked for Respondent and its predecessor as a field service mechanic since
1989. According to Urrea, one employee said that the employees deserved to be
paid more money if they were to be “on call”4
if they were now unable to take the company trucks home. According to Urrea,
the employees also mentioned that they deserved a raise because it had been
over a year since they received a raise. Again according to Urrea,
The General Counsel also relies on the testimony of employee
Steven Lee Grove that an employee known by Grove only as “Lee” told him that
Nancy Contreras, Respondent’s office manager, told him that the evaluations
were already typed up but the lawyers from
The General Counsel relies on the findings in United Rentals, JD(SF)–36–05. In that case Judge William Schmidt concluded that Respondent violated Section 8(a)(3) and (1) by discharging an employee on March 30, 2004, because the employee had supported the Union and violated Section 8(a)(1) by coercively interrogating an employee concerning union activity and impliedly promising to consider an employee’s pay increase if the employees rejected the unionization. These, indeed, are serious unfair labor practices findings. But I note that those unfair labor practices occurred about a year before the allegations in this case and thus are somewhat remote in time. I also note that those unfair labor practices are not directly connected to the allegation at issue here. On balance, I conclude the findings in United Rentals are alone insufficient to establish that antiunion animus motivated Respondent’s conduct in this case.
More significant to the issue of animus are the findings I
make in this case. I have already concluded above that Respondent violated
Section 8(a)(5) and (1) refusing to conduct evaluations and grant pay increases
for unit employees effective April 1. I conclude below that Respondent violated
that same section by rescinding its practice of allowing employees to take days
off without pay. I further conclude below that Respondent violated Section
8(a)(1) by implementing a dress code that prohibits employees from displaying a
union logo. These findings demonstrate a willingness by Respondent to violate
the Act in its effort to undermine the
Also, as the General Counsel points out, unlawful motivation
may be inferred from the totality of the circumstances. Here the evidence shows
that, except for employees covered by a collective-bargaining agreement, only
the
Respondent argues that it was motivated to withhold the evaluations and pay increases in 2005 for the unit employees out of a fear that charges might be filed concerning statements it would make to employees in the course of conducting their evaluations. It points to Judge Schmidt’s decision. However, this cannot serve as a lawful basis for Respondent’s actions. Respondent is able to comply with the law and at the same time discuss employee performance.
Respondent argues that it was also motivated by a belief
that continuing to conduct evaluations and grant pay increases would have
violated its obligation to bargain with the
I would normally now examine whether Respondent has shown that it would have failed to give these employees evaluations and wage increases even if they had not selected the Union and the Union had not been certified. Respondent makes no such arguments in this case, at least that not have been previously discussed and rejected.
I conclude that Respondent violated Section 8(a)(3) and (1) by failing to give the unit employees evaluations and wage increases in 2005.
C. Dress Code
Effective January 1, 2004, Respondent’s corporate-wide policies and procedures bulletin set forth a written dress code. That bulletin applied “to all sales coordinators, senior sales coordinators, sales representatives, branch managers and assistant branch managers at all branch locations.” It listed appropriate attire for those employees for the workplace such as “collared shirts in polo or oxford style.” The bulletin also states:
The following attire is considered inappropriate for the workplace:
Any hat worn indoors, including branded caps.
T-shirts, sweatshirts, flannel shirts, sleeveless tops, strapless tops and all other non-collared shirts.
Jeans of any kind or color.
Sweatpants, jogging suits, spandex apparel, shorts, leggings and stirrup pants.
Cowboy boots, sandals, canvas shoes, athletic shoes of any kind and hiking boots, even if they are safety-qualified.
Any attire that is frayed, faded, torn, revealing, or extremely baggy.
In practice Respondent employees, at least in Hall’s district, generally wear distinctive clothing while at work. The clothing varies according to the classifications of employees. Certain employees, such as sales representatives and management personnel, wear khaki pants and collared shirts, “preferably United Rentals shirt[s]” according to Hall’s testimony. Other employees such as mechanics and drivers wear blue pants with a blue shirt that Respondent provides for them. The shirts have the name of the employee and Respondent’s name on them. These employees are not required to wear the clothing provided by Respondent in that they may wear the clothing worn by the sales representatives without violating any dress code policy. But because Respondent does not provide these employees with the other clothing they generally wear the blue pants and blue shirt.
In addition to the attire described above employees at the
On April 20 the employees at the
Effective Monday, May 2nd , 2005, the following attire will no longer be allowed to be worn:
Jeans of any kind or color.
Any Logo’s on Shirts, Hats, Sweatshirts or Jackets other than United Rentals.
T-Shirts, Non Collared Shirts, Flannel Shirts and Sleeveless tops.
Sweatpants, jogging suits and shorts.
Cowboy Boots, Sandals, Canvas Shoes, Athletic Shoes of any kind and hiking boots even if they are safety-qualified.
Any employee reporting to work improperly dressed will be sent home by his or her supervisor to change into proper clothing.
Dornean and Richardson reviewed this dress code notice with the employees at the meeting.
After this code was announced the employees at the
The facts concerning the dress code practice at
Analysis
The General Counsel alleges two separate violations concerning
the issuance of the dress code memorandum. First, he argues that dress code
forbids “employees from displaying union logos or insignia or other protected
messages, and thereby restricts employees from engaging in activity protected
by the Act.” Employees generally have the right under the Act to wear union
insignia in the workplace. Republic
Aviation Corp. v. NLRB, 324
Under special circumstances an employer, however, may
limit or prohibit employees from displaying union insignia. The special
circumstances are limited to situations where an employer can show that the
wearing of the insignia adversely affected its business or created safety or
disciplinary problems.
As indicated, the General Counsel also alleges that the
April 20 dress code itself was issued in retaliation for the employees’ union
activities and therefore violated Section 8(a)(3) and (1). I again apply the Wright Line analysis. As explained in
the preceding section of this decision Respondent was aware of the prounion
sympathies of the unit employees and it has shown an animus towards those
sympathies. The timing of the issuance of the dress code notice and its part as
one of three such notices that withdrew benefits for the
I turn now to examine whether Respondent has shown that it
would have issued the April 20 dress code notice even if the unit employees had
not supported the
Respondent argues that Hall essentially restated existing policy, but as set forth above the April 20 dress code notice went beyond existing policy. When asked why he did not simply reissue the existing dress code, Hall answered:
Umm . . .We just basically wrote it off the policy. We looked at the policy that was in the [sic] and the policy that has been put forth by my regional vice-president wants all of his stores operating under the same - you know of which my nine stores in my district operate under the same dress code.
This answer speaks for itself. The notion that Hall was simply following the orders of his vice-president is totally without corroboration and supporting details; I do not credit this testimony. Indeed, the entire tenor of Hall’s testimony was one of someone searching for a lawful explanation rather than one of someone simply relaying the facts.
Hall testified that he did not issue memoranda for the
other eight facilities in his district because he did not need to. But here too
Hall’s testimony is without supporting details or corroboration. Again I do not
credit Hall’s testimony. I find that Respondent has not shown that it would
have issued the April 20 dress code notice even if the unit employees had not
supported the
D. Service Trucks
Respondent’s policy and procedures bulletin contains a vehicle policy that prohibits the use of unassigned company vehicles for personal use. However, if the facility manager “determines that, for business purposes, a company vehicle is to be stored off premises and/or at an employee’s home, then the Manager shall assign the vehicle to the designated employee.”
As indicated above, Urrea has worked for Respondent as a
field service mechanic since 1989. He repairs machinery on location and had
used a truck provided by Respondent to travel to those sites from his home. He
took the company truck home every day, regardless of whether he was on call. He
was one of about eight field service mechanics employed in April 2005 each of
whom was also provided a company truck that they took home every day. These
employees would fill the trucks with gas at the
As mentioned above, at the April 20 safety meeting Richardson and Dornean gave the employees two notices. The second notice, also from Hall, concerned service trucks and read, in pertinent part:
Effective Monday, May 16th, 2005, the service mechanics that are on call along with outside service vendor mechanics, will be the only service trucks that will be taken home. When you are not on call you will be required to come into the office, check in and pick up your service truck at the start time that you are assigned.
As previously described in part above, after the safety
meeting about six field service mechanics met with
After the April 20 truck usage notice Urrea and the other
field service mechanics had to drive their personal vehicles to the facility
where they then took the company trucks to drive to the worksite. Three
managers at the
Analysis
The General Counsel alleges that Respondent implemented
the truck usage notice in violation of Section 8(a)(3) and (1). I apply the
Wright Line framework and conclude for reasons previously stated that the
General Counsel has met his initial burden of showing the notice was issued
because the unit employees had selected the
Concerning whether Respondent would have issued the truck usage notice even in the absence union activity, at the hearing Hall testified that he implemented the change in truck usage to make it consistent with the policy of his district vice-president that vehicles are left at the branch except for those employees on call. He testified that this was consistent with Respondent’s policy manual. Again Hall’s testimony lacks detail and corroboration and again I do not credit it.
Later, in response to a leading question, Hall added that
in “the old Northwest Region” 45 percent of all accidents with company vehicles
occurred after hours, however he admitted that he did not have data concerning
the Pico Rivera facility accident record. I conclude Hall is again searching
for reasons to justify his conduct. Hall did not testify that the tax consequences
discussed above played a role in his decision to change the vehicle usage practice.
Respondent has not shown that it would have issued the April 20, 2005,
restricting the use of company vehicles even if the unit employees had not
supported the
E. Unpaid Days Off
Respondent provides its employees with sick leave; its policies and procedures bulletin indicates that the purpose of sick leave is to provide continuing income to employees who miss work due to “illness, injury, or any other disability.” Employees are paid for accrued but unused sick leave each year.
On April 25 Hall posted a notice concerning vacation and sick time. It provided, in pertinent part:
Clarification is required on some of the policies and procedures
at the
. . .
All unscheduled days off will be used as sick time. If all sick days are taken, you are allowed to use vacation time, as long as an employee has vacation time accrued. There will no longer be time away from work at no pay, such as “Personal Unpaid Days.” The branch can not operate at 100% with the last minute requests for “Unpaid days off.” The company provides all employees with ample vacation and sick time. Please use your paid time off wisely.
Prior to this announcement employees at the
On May 29, 2003, Hall had issued the following memorandum
for the employees at the
Effective immediately, personal time will no longer be allowed for time off. If you have vacation or sick time available that will have to be used for any time missed. If you only miss up to 2 hours on any given day it will be an option then if you want to use any available vacation or sick time.
The employees at
Analysis
The General Counsel alleges that Respondent violated both
Section 8(a)(5) and (3) by issuing and enforcing the memorandum described
above. I again turn first to Section 8(a)(5) allegation. The facts show, and I
conclude, that employees were permitted to take unpaid time off instead of
using accumulated sick or vacation time. This became, for them, a working condition.
Respondent altered that practice without first notifying the
Respondent makes several arguments to justify its conduct.
First, Respondent cites Bath Iron Works
Corp., 302 NLRB 898 (1991) and Watsonsonville
Register-Pajaronian, 327 NLRB 957 (1999) for the proposition that only
material, significant, and substantial changes in working conditions trigger an
obligation to bargain first with a union. That certainly is settled law, but it
does not absolve Respondent in this case because the change it made was substantial.
Prior to the change, employees were allowed to take days off from work, albeit
without pay, beyond sick and vacation days. The freedom to take these extra
days off from work cannot be labeled as insignificant. Next, Respondent argues
that it was merely correcting a laxity in the enforcement of its policy that
had developed at the
While one can appreciate the burdens the “days off without pay” practice had on Respondent’s ability to efficiently run its business, it was a burden of its own making and one that required bargaining with the Union first in any effort to alleviate it. I conclude that by rescinding its practice of allowing employees to take days off without pay Respondent violated Section 8(a)(5) and (1) of the Act.
I turn now to the allegation that Respondent violated Section 8(a)(3) and (1) by this same conduct. I need not repeat here the evidence I rely on to conclude that the General Counsel has met his burden under Wright Line. At the hearing and in response to a leading question Hall testified that policy set forth in the memorandum was consistent with the policy he followed in the eight other branches in his district. Hall testified that he was trying to take control of scheduling because employees had been calling in and stating that they were taking unpaid days off. Again in response to a leading question Hall testified that the facility’s poor financial performance played a part in his decision to issue this memorandum. He explained that employees could take an unpaid day off and still collect on unused sick time at the end of the year “which would be a financial–contribute to higher wages being paid out in those months that they were—that the bonus—it wasn’t a bonus it was a pay out—for unused sick leave in January—.” But he conceded that because employees were not paid for using unpaid leave, if they received pay for sick leave later the matter was financially a draw. Hall explained that when employees used unpaid leave by calling in at the last moment Respondent could incur overtime costs to cover for the employee’s shift, but he soon conceded that the situation would be the same if the employee called in sick and used sick leave at the last moment. I again conclude that Hall’s testimony is not credible. The answers, given in response to leading questions, were quickly revealed to be unsupportable. I have already concluded above that Hall’s other testimony has not been credible.
Respondent argues that the May 29, 2003, notice that Hall issued to the employees at the Modesto facility shows that Hall has uniformly applied the same standard to both union and nonunion facilities. But that notice is not identical in scope to the April 25 notice, and the issuance of one notice at one facility does not establish a uniform practice. Respondent argues:
Any laxity in the enforcement (of the sick and vacation leave) policies at the Pico Rivera Branch was the exception, rather than the rule, and arose solely to the disorder occasioned by the lack of a standing Branch Manager.
Respondent makes no reference to the record to support the assertion. This is so because the record cannot support such a finding. The record shows that the practice of allowing employees to take time off without pay has existed for years and long predated the departure of a permanent branch manager in 2004.
Respondent has not met its burden under Wright Line. By rescinding
its practice of allowing employees to take days off without pay because the employees
supported the
Conclusions of Law
1. By failing to give the unit employees evaluations and wage increases in 2005 Respondent violated Sections 8(a)(5), (3) and (1).
2. By implementing a dress code that prohibits employees from displaying a union logo, Respondent violated Section 8(a)(1).
3. By issuing the April 20, 2005, dress code notice because the unit employees supported the Union Respondent violated Section 8(a)(3) and (1).
4. By issuing the April 20, 2005, notice restricting the use of company vehicles Respondent violated Section 8(a)(3) and (1).
5. By rescinding its practice of allowing employees to take days off without pay Respondent violated Section 8(a)(5), (3) and (1) of the Act.
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. Having found that Respondent has unlawfully failed to give unit employees evaluations and wage increases in 2005, I shall order Respondent to resume its practice, perform the evaluations and retroactively grant pay increases, if warranted, plus interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987). Having found that Respondent unlawfully implemented the April 20, 2005, dress code, I shall order Respondent to rescind that dress code. Having found that Respondent unlawfully implemented the April 20, 2005, notice restricting the use of company vehicles, I shall order Respondent to rescind that notice, restore the practice that existed prior to its issuance, and make the employees whole for the losses they suffered as a result of the unlawful conduct, with interest as set forth in New Horizons, supra. Having found that Respondent unlawfully rescinded its practice of allowing employees to take days off without pay, I shall order Respondent to revoke the rescission and restore the practice that existing before the unlawful conduct.
The General Counsel seeks an additional remedy in this
case. It argues that Respondent’s pattern of violating the Act warrants a
remedy requiring Respondent to read aloud the notice to the assembled employees
at the
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5
ORDER
The Respondent, United Rentals, Inc.,
1. Cease and desist from
(a) Failing to give employees evaluations and pay increases, if warranted, without first giving the International Union of Operating Engineers, Local 12, notice and an opportunity to bargain about the matter.
(b) Failing to give employees evaluations and pay increases,
if warranted, because the employees supported the
(c) Implementing a dress code that prohibits employees from displaying a union logo.
(d) Implementing a dress code because the employees supported a union.
(e) Restricting the use of company vehicles because the employees supported a union.
(f) Rescinding the practice of allowing employees to take days off without pay without first giving the International Union of Operating Engineers, Local 12, notice and an opportunity to bargain about the matter.
(g) Rescinding the practice of allowing employees to take
days off without pay because the employees had supported the
(h) 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. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Resume the practice of performing yearly employee evaluations and granting wage increases, if warranted.
(b) Perform the evaluations and retroactively grant pay increases, if warranted, for 2005 plus interest.
(c) Rescind the April 20, 2005, dress code.
(d) Rescind that April 20, 2005, notice restricting the use of company vehicles, restore the practice that existed prior to its issuance, and make the employees whole for the losses they suffered as a result of the unlawful conduct, with interest.
(e) Revoke the rescission of the practice of allowing employees to take days off without pay and restore the practice that existed before the unlawful conduct.
(f) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post at its fa