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
August 24, 2007
DECISION AND ORDER
By Members Liebman, Schaumber, and Kirsanow
On January 30, 2006, Administrative Law Judge Michael A. Rosas issued the attached decision.1 The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The General Counsel also filed exceptions and a supporting brief, and the Respondent filed an 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 decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3
The unfair labor practice allegations in this case arise
in the context of a successful effort by the Union, International Union of
Operating Engineers Local Union Nos. 66, 66A, B, C, D, O, and R, AFL–CIO, to
organize approximately 15 employees working for the Respondent, United Rentals,
Inc., a company engaged in the rental and sales of commercial construction
equipment, at its places of business at Columbiana and East Liverpool, Ohio
(collectively, the Columbiana branch).
The Respondent’s conduct alleged as unlawful began with the commencement
of the Union’s organizing campaign in February 2004,4
and continued through the March 26 election, wherein the employees selected the
1. The judge found, inter alia, that the Respondent violated Section 8(a)(3) by taking the following actions following the Union’s March 26 electoral victory: suspending annual performance evaluations and pay raises, discontinuing its practice of permitting employees to rent equipment for free, imposing a stricter dress code, and changing its practice of permitting employees to call in before a scheduled shift to advise that they would be late. In so finding, however, the judge did not state what legal standard he was applying.
It is well established that 8(a)(3) allegations that turn on employer motivation are analyzed under Wright Line.5 Under that standard, the General Counsel must first show, by a preponderance of the evidence, that protected conduct was a motivating factor in the employer’s adverse action. Once the General Counsel makes that showing by demonstrating protected activity, employer knowledge of that activity, and animus against protected activity, the burden of persuasion shifts to the employer to show that it would have taken the same adverse action even in the absence of the protected activity. Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). If, however, the evidence establishes that the reasons given for the employer’s action are pretextual—that is, either false or not in fact relied upon—the employer fails by definition to show that it would have taken the same action for those reasons, and thus there is no need to perform the second part of the Wright Line analysis. Golden State Foods Corp., 340 NLRB 382, 385 (2003); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
As to all of the 8(a)(3) allegations listed above, the General Counsel easily met his initial burden under Wright Line. As found by the judge, on February 11, Joseph Beasley, the Union’s coordinator of organizing, faxed a letter to Chris Britt, manager of the Respondent’s Columbiana and East Liverpool facilities, informing Britt that 10-named employees “are currently involved in assisting the [Union] in attempting to organize your company.” Beasley also faxed copies of the 10 employees’ signed authorization cards. Thus, protected activity and the Respondent’s knowledge thereof are plainly established. As to union animus, the judge found, and the Respondent did not except to his finding, that the Respondent committed multiple violations of Section 8(a)(1), including threats, coercive interrogation, and solicitation of grievances accompanied by express remedial promises. These violations clearly demonstrate the Respondent’s union animus.
Turning to the Respondent’s proffered nondiscriminatory reasons for the foregoing conduct—that is, suspending annual performance evaluations and pay raises, discontinuing free equipment rentals, imposing a stricter dress code, and changing its call-in practice—the judge rejected them as unworthy of belief. For the several reasons stated by the judge, we agree that the Respondent’s proffered reasons for these actions are pretextual. Thus, the Respondent necessarily failed to show that it would have taken the same actions even in the absence of its employees’ union activity. Golden State Foods, supra. We therefore affirm the judge’s 8(a)(3) findings.
2. In finding that the Respondent violated Section 8(a)(5), the judge did not address the Respondent’s contention that its unilateral changes to certain of its policies were not material, substantial, and significant.6 We do so here.
As fully recounted by the judge, the Respondent, at its
Columbiana branch, had a practice of permitting employees to rent equipment for
free. It changed its practice after the
With respect to the Respondent’s change in its call-in policy, we note that the Respondent, pursuant to its unilaterally changed policy, disciplined employees for lateness and no longer allowed employees to make up the time at the end of their shift. Where employees are subject to discipline for failing to comply with a unilaterally changed policy, such a change is material, substantial, and significant. Toledo Blade Co., 343 NLRB 385, 388 (2004); Postal Service, 341 NLRB 684, 687 (2004).7
Amended Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:
All truck drivers, tractor trailer drivers, mechanics, parts associates, and customer service associates employed by the Employer at its 44691 State Route 14, Columbiana, Ohio and 16695 Lisbon Street, East Liverpool, Ohio locations, but excluding all office clerical employees, outside sales/rental persons, professional employees, guards and supervisors as defined in the Act.
4. Since April 5, 2005, and at all times thereafter, the Charging Party has been the exclusive collective-bargaining representative of the unit described in paragraph 3 above, based on Section 9(a) of the Act.
5. By engaging in the following conduct, Respondent committed unfair labor practices contrary to Section 8(a)(1) of the Act.
(a) Respondent threatened that employees who signed authorization cards sealed their fate.
(b) Respondent threatened that employees suspected of leading the organization effort would be fired within a few months.
(c) Respondent threatened that the organizational effort would cause an employee to lose his job and health coverage for his ill daughter, would result in the elimination of annual evaluations and pay raises, and would cause Respondent to close one or both of the Columbiana branch stores.
(d) Respondent threatened that the genius behind the organizing effort would cause Respondent to close.
(e) Respondent threatened that if the Union prevailed or employees
voted for the
(f) Respondent threatened an employee who complained about Respondent’s earlier threats that Respondent was looking to fire him and that he should avoid giving Respondent a reason to do so.
(g) Respondent interrogated employees about why they
signed authorization cards and supported the
(h) Respondent promised that it would take care of employees’ pay concerns and increase the pay at Columbiana.
(i) Respondent promised that it was looking out for the employee with the ill daughter and that the employee was not to worry about disciplinary action if the employee needed time off to care for the daughter.
(j) Respondent asked about employees’ work concerns and
any other issues, gave employees business cards and solicited their phone calls
and e-mails with problems and questions, and promised to address the employees’
concerns if the
6. By engaging in the following conduct, Respondent committed unfair labor practices contrary to Section 8(a)(3) and (1) of the Act.
(a) Respondent eliminated annual evaluations and pay
raises because unit employees supported the
(b) Respondent changed its policy concerning employees’
use of rental equipment by requiring employees to pay rental fees for the use
of borrowed equipment because unit employees supported the
(c) Respondent changed its uniform policy because unit
employees supported the
(d) Respondent changed its call-in policy because unit
employees supported the
(e) Respondent disciplined, transferred, assigned lower-level
duties to, and discharged employees because they supported the
7. By engaging in the following conduct, Respondent committed unfair labor practices contrary to Section 8(a)(5) and (1) of the Act.
(a) Respondent unilaterally eliminated annual evaluations and pay raises without first giving the Union notice and opportunity to bargain about the matter.
(b) Respondent unilaterally changed its policy concerning employees’ use of rental equipment by requiring employees to pay rental fees for the use of borrowed equipment without first giving the Union notice and opportunity to bargain about the matter.
(c) Respondent unilaterally changed its uniform policy without first giving the Union notice and opportunity to bargain about the matter.
(d) Respondent unilaterally changed its call-in policy without first giving the Union notice and opportunity to bargain about the matter.
ORDER
The National Labor Relations Board adopts the recommended Order
of the administrative law judge as modified and set forth in full below and
orders that the Respondent, United Rentals, Inc., Columbiana and
1. Cease and desist from
(a) Threatening employees concerning their union or other protected, concerted activities, including without limitation by telling them if they signed authorization cards they sealed their fate; that employees suspected of leading the organization effort would be fired within a few months; that the organizational effort would cause an employee to lose his job and health coverage for his ill daughter, would result in the elimination of annual evaluations and pay raises, and would cause Respondent to close one or both of the Columbiana stores; that the genius behind the organizing effort would cause Respondent to close; that if the Union prevailed or employees voted for the Union, Columbiana would be a miserable place to work, employees would lose promotional opportunities, medical benefits, free use of company equipment, and assistance with their work concerns, and there would be layoffs and employees being sent home early; and by telling an employee who complained about Respondent’s earlier threats that Respondent was looking to fire him and that he should avoid giving Respondent a reason to do so.
(b) Coercively interrogating employees about their own or
others’ union or other protected, concerted activities, including without limitation
by asking why they signed authorization cards and supported the
(c) Soliciting grievances and promising to remedy them, including without limitation by telling employees that Respondent would take care of employees’ pay concerns and increase the pay at Columbiana, and that Respondent was looking out for an employee and that he was not to worry about disciplinary action if he needed time off to care for his daughter; and by asking employees about their work concerns, giving employees business cards and soliciting their phone calls and e-mails with problems and questions, and promising to address the employees’ concerns if the Union lost the election.
(d) Discharging or otherwise discriminating against any employee for supporting the International Union of Operating Engineers Local Union Nos. 66, 66A, B, C, D, O, and R, AFL–CIO, or any other union.
(e) Discriminatorily eliminating annual evaluations and pay raises, and changing policies concerning equipment rentals, uniforms, and call-in procedures.
(f) Refusing to bargain with the
(g) 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) Conduct performance evaluations of all unit employees for the period of March 2003 to February 2004, and promptly notify each unit employee of his or her pay raise commensurate with such evaluation. Such pay increases shall be retroactive to April 1, 2004.
(b) Upon request of the
(c) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees, notify and, on request,
bargain with the
All truck drivers, tractor trailer drivers, mechanics, parts associates, and customer service associates employed by the Employer at its 44691 State Route 14, Columbiana, Ohio and 16695 Lisbon Street, East Liverpool, Ohio locations, but excluding all office clerical employees, outside sales/rental persons, professional employees, guards and supervisors as defined in the Act.
(d) Within 14 days from the date of this Order, offer Douglas Baker full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges previously enjoyed.
(e) Within 14 days from the date of this Order, rescind Robert Williams’ transfer to East Liverpool and assignment of lower-level duties and restore him to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges previously enjoyed.
(f) Within 14 days from the date of this Order, rescind disciplinary notices issued to Timothy Plunkett on July 13 and Robert Williams on July 21.
(g) Make Douglas Baker, Robert Williams, and Timothy Plunkett whole for any loss of earnings and other benefits suffered as a result of the Respondent’s unlawful conduct in the manner set forth in the remedy section of the judge’s decision as amended herein.
(h) Within 14 days from the date of this Order, remove from its files any reference to the discharge or other disciplinary action against Baker, Williams, and Plunkett, and within 3 days thereafter notify them in writing that this has been done and that the discharge or discipline will not be used against them in any way.
(i) 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.
(j) Within 14 days after service by the Region, post at
its facilities in Columbiana and
(k) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleged violations of the Act not specifically found.
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 threaten you concerning your union or other protected, concerted activities, including without limitation by telling you that if you signed authorization cards you sealed your fate; that employees suspected of leading the organizational effort would be fired within a few months; that the organizational effort would cause an employee to lose his job and health coverage for his ill daughter, would result in the elimination of annual evaluations and pay raises, and would cause us to close one or both of the Columbiana stores; that the genius behind the organizing effort would cause us to close; that if the Union prevailed or you voted for the Union, Columbiana would be a miserable place to work, you would lose promotional opportunities, medical benefits, free use of company equipment, and assistance with your work concerns, and there would be layoffs and you would be sent home early; and by telling one of you, who complained about earlier threats, that we were looking to fire you and that you should not give us a reason to do so.
We will not coercively interrogate you about your own or others’ union or other protected, concerted activities, including without limitation by asking why you signed authorization cards and supported the Union, whether you had any prior union activity, and how you voted.
We will not solicit grievances and promise to remedy them, including without limitation by telling you that we would take care of your pay concerns and increase the pay at Columbiana; by telling one of you that we were looking out for you and not to worry about disciplinary action if you needed time off to care for your daughter; and by asking you about your work concerns, giving you business cards and soliciting your phone calls and e-mails with problems and questions, and promising to address your concerns if the Union lost the election.
We will not discharge or otherwise discriminate against any of you for supporting the International Union of Operating Engineers Local Union Nos. 66, 66A, B, C, D, O, and R, AFL–CIO (the Union), or any other union.
We
will not eliminate annual evaluations and pay raises, or change policies
concerning equipment rentals, uniforms, and call-in procedures in order to
discourage you from supporting the
We will not refuse to bargain with the Union as your exclusive collective-bargaining representative by making changes in terms and conditions of employment without first giving the Union notice and an opportunity to bargain about such matters.
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 conduct performance evaluations of all unit employees from the period of March 2003 to February 2004, and promptly notify each of you of your pay raise commensurate with such evaluation. Such pay increases shall be retroactive to April 1, 2004. The unit is:
All truck drivers, tractor trailer drivers, mechanics, parts associates, and customer service associates, employed by us at our 44691 State Route 14, Columbiana, Ohio and 16695 Lisbon Street, East Liverpool, Ohio locations, but excluding all office clerical employees, outside sales/rental persons, professional employees, guards and supervisors as defined in the Act.
We
will, at the
We
will, before making any changes in your wages, hours, or other terms and
conditions of employment, notify and, on request, bargain with the
We will, within 14 days from the date of the Board’s Order, offer Douglas Baker full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges previously enjoyed.
We will, within 14 days from the date of the Board’s Order, rescind Robert Williams’ transfer to East Liverpool and assignment of lower-level duties and restore him to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges previously enjoyed.
We will, within 14 days from the date of the Board’s Order, rescind the disciplinary notices issued to Timothy Plunkett on July 13 and Robert Williams on July 21.
We will make Douglas Baker, Robert Williams, and Timothy Plunkett whole, with interest, for any loss of earnings and other benefits suffered as a result of our unlawful conduct.
We will, within 14 days from the date of the Board’s Order, remove from our personnel files any reference to the discharge or other disciplinary action against Baker, Williams, and Plunkett, and we will, within 3 days thereafter, notify them in writing that this has been done and that the discharge or discipline will not be used against them in any way.
United Rentals, Inc.
Catherine A. Modic and Rudra Choudhury, Esqs., for
the General Counsel.
Daniel F. Murphy Jr. and Alex Tchernovitz, Esqs., of
Joseph Beasley, for
the Charging Party.
DECISION
Statement of the Case
Michael A. Rosas, Administrative Law Judge. The International Union Of Operating Engineers Local Union Nos. 66, 66A, 66B, 66C, 66D, 66O, and 66R, AFL–CIO (the Union) filed the charge against United Rentals, Inc. (the Respondent) in Case 8–CA–34853 on February 23, 2004.1 The General Counsel filed the complaint in that case on April 30. The Union filed additional charges in Case 8–CA–35041 on May 6, Case 8–CA–35196 on July 29, and in Case 8–CA–35319 on September 24. On October 29, the General Counsel issued an amended complaint consolidating the charges in Cases 8–CA–34853, 8–CA–35041, and 8–CA–35319. That case is referred to as the “initial case.” On December 20, the General Counsel further amended the complaint to correct the caption to include Case 8–CA–35319 and exclude Case 8–CA–35196. The complaint alleged various coercive statements and changes in annual employee evaluations and pay raises in violation of Section 8(a)(1) of the National Labor Relations Act (the Act). The complaint also alleged selective enforcement of the Respondent’s rental, uniform, and call-in policies, and discriminatory disciplinary action in violation of Section 8(a)(3) and (1). The Respondent essentially denied the material allegations. A hearing was conducted on February 1–3 and March 15, 2005. The parties submitted posthearing briefs on May 19, 2005.
On April 5, 2005, the National Labor Relations Board (the
Board) issued its Decision and Certification of Representative in Case
8–RC–16598. On April 20, 2005, the
On May 23, 2005, 4 days after the parties submitted posthearing briefs, the General Counsel moved to reopen the record and consolidate the initial case with the bargaining case. On June 17, 2005, the Respondent submitted opposition papers. By Order, dated July 8, 2005, I granted the motion, but ordered a supplemental hearing to receive additional evidence regarding the 8(a)(5) and (1) allegations. On August 30, I conducted a supplemental hearing. On October 3, 2005, the parties submitted supplemental posthearing briefs.
On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following
Findings of Fact
i.
jurisdiction
The Respondent is a
ii. alleged
unfair labor practices
A. The Respondent’s Operations
The Respondent supplies rental construction equipment, including
aerial boom lifts, fork lifts, and pickup trucks at branch stores throughout
the
From 1972 to 2000, the Columbiana and
The disputed personnel practices at the Columbiana branch
include employee performance evaluations, pay raises, and free equipment
rentals. Employees normally received a
performance evaluation in March of each year. The process is initiated by the employee’s
supervisor—either Chuck Millhorn or Bill Smith at the Columbiana store or
Michael Britt at the
B. The
On February 9, 2004, several of the Respondent’s employees
attended a union organizing meeting. On
February 11, 2004, Joseph Beasley, the
This letter is to inform you that ten of your employees, Douglas Baker, Brian Brooks, Edward Crow, Frank Morrezz, Charles Muskgrove, Timothy Plunkett, James Six, William Smith, Robert Williams, and Jason Woods, are currently involved in assisting the International Union of Operating Engineers Local # 66 in attempting to organize your company. I have attached copies of their signed authorization cards for your records. They are, and will continue to be, involved in protected concerted activity that is protected by the National Labor Relations Act. We would expect that you would respect their rights under the law. Should you have any questions regarding this matter, please feel free to contact me at 412-856-8662.
Chris Britt was at a supervisors’ meeting in
We have received the enclosed fax from you today from you [sic]. At the instruction of Mr. Britt who is not in the office today, I am returning the entire fax to you, and have not kept a copy. In the future, please follow NLRB procedures in this matter.6
C. The Respondent’s Preelection Actions
1. Chris Britt’s February 13 meetings with employees
Upon returning on February 13, Chris Britt held one-on-one
meetings with three Columbiana branch employees: Robert Williams, Brian Brooks,
and Jason Woods. He also met that day
with Timothy Plunkett, an
In his conversation with Williams, a Columbiana store truckdriver,
Chris Britt said that he had a list of 10 employees, including Williams, who
signed authorization cards. He told Williams
that these employees “sealed their fate.” Chris Britt also said he suspected that
Williams and Bill Smith were the leaders of the union organizing effort, Williams
would be fired within 3 months, and Smith would not be far behind. Chris Britt opined that a union was not
necessary and then asked Williams what prompted him and other employees to sign
authorization cards. Williams explained
that wages at the Columbiana branch were lower than those at the Respondent’s
unionized branches, workers attempting deliveries at General Motors in
Chris Britt took a somewhat softer approach with Brooks, a mechanic at the Columbiana store. He started their closed door meeting pretty much the same way—by telling Brooks he had a problem with the Union, and asking him why he signed an authorization card and about any concerns with working conditions at the store. Brooks told Britt about the harassment problem at the General Motors’ plant in Lordstown. After telling Brooks that employees would not receive their annual evaluation because they had signed authorization cards, Chris Britt stated that he was simply trying to look out for Brooks and his daughter.9
In his brief meeting with Plunkett, a truckdriver at the
2. Millhorn’s February 16 meeting with Baker
Millhorn, the assistant manager of the Columbiana store,
also made antiunion statements to employees. On February 16, he took Douglas Baker, a
laborer, to an isolated portion of the showroom to discuss the union campaign. During the discussion, which lasted about 2
hours, Millhorn inquired as to Baker’s reasons for supporting the
3. Blackadar and Stewart’s March 15 meetings with employees
The Respondent’s upper management converged on the Columbiana branch on March 15. On that day, Regional Vice President Rob Blackadar and District Manager Brian Stewart met with Columbiana branch employees and presented the Respondent’s antiunion position. Three employees testified concerning their conversations with Blackadar: Williams, Brooks, and Plunkett; one employee, Baker, testified concerning his conversation with Stewart.12
Blackadar gave his standard pitch in such instances, engaging
in “small talk” before apprising each employee as to the Respondent’s
preference that the Company remain union-free and typically telling each
employee: “I would like you to vote no, but I don’t say you have to vote no, or
anything like that.” He approached
Williams in the parts room of the Columbiana branch, introduced himself, and
said he was there to speak about the election the next day. He added that he was also the contract
negotiator for union contracts, but explained that he and the Respondent did
not like unions; their preferred approach to problems was to work problems
through the branch manager, then to the district manager and up to his level. Blackadar then asked Williams if he wished to
discuss any concerns. Williams shared
his concerns, including the view that too many Britt family members worked at
the Columbiana branch and availed themselves of free company fuel, rentals, and
deliveries. Blackadar responded that the
Columbiana branch was a smooth running operation and he never heard of any
problems there until they came “to light because of this union situation.” Blackadar gave Williams his business card and
cellular telephone number. He also
informed Williams that, if the
In his conversation with Brooks, Blackadar said he was aware that the employees “had pay issues in our shop, and if given the chance, we have, we’re going to have an election, we have the right to vote. He wants us to make sure that we’re there to vote. Given the chance, he would like to take care of the issues that we have with pay, and he asked me if I had any other issues.” Brooks alluded to his meeting with Chris Britt and the problem with delivering to the union worksite in Lordstown. Blackadar handed him a business card and suggested Brooks call or e-mail him with any problems or questions.14
In his 20-minute conversation with Plunkett, Blackadar
asked about his reasons for supporting the
In his conversations with Columbiana branch employees,
Stewart was also confronted with questions and concerns about wages and branch
management, including favoritism, no-charge contracts, and promotional
opportunities. In his conversation with
Baker during the morning, Stewart asked Baker what issues contributed to his
desire to bring in the
Later that day, Stewart also met in the shop area with a
group that included Williams, Smith, Brooks, Baker, and Jim Six, another
laborer/driver. Williams did most of the
talking on behalf of the employees. He
complained that Columbiana branch employees were paid less than employees at
other branches. Stewart agreed but, when
Baker asked whether employees would receive pay increases in April, responded
that he could not discuss that issue because it could be considered a bribe. Baker persisted with a suggestion that it
would be illegal if the Respondent withheld a scheduled pay raise. Stewart then responded that the
On March 17, Chris Britt distributed a followup letter from Blackadar to each of the Columbiana branch employees:
Thank you for taking the time to speak with me on Monday. I told you that my integrity and the integrity of our management team meant everything to me. I mean it.
This election is not about the past. I know that we have made mistakes and I am willing to take responsibility for all the mistakes that I have made. However, you should know that our management team, Brian, Chris and I, are all concerned about you. We are all rational people who can calmly discuss any issue. We are asking you to give us a chance to prove ourselves.
Please do not be fooled by false Union promises of free insurance. Nothing in life is free. We all pay for insurance, one way or another. Please take the time to ask all of your questions about our health plan and the Union plan. We are proud of our employee benefits, which Mike Albers has explained to you.
I want everyone to know that no one will lose his job because of how he votes in the election on
March 26, 2004. I ask you to vote “NO”
because I believe that together we can continue to make this branch successful.
I ask you to vote “NO” on March 26, 2004
because the Company has given you good reason to vote “NO”. I do not want you to vote yes because the
Union or someone is scaring you into believing that unless you vote for the
I look forward to speaking with you again.17
D. The March 26 Election and Its Procedural Sequelae
Pursuant to the petition filed by the Union in Case
8–RC–16598 and a stipulated election agreement between the
All truck drivers, tractor trailer drivers, mechanics, parts associates, and customer service associates employed by the Respondent at its 44691 State Route 14, Columbiana, Ohio and 16695 Lisbon Street, East Liverpool, Ohio locations excluding all office clerical employees, outside sales/rental persons, professional employees, guards and supervisors as defined in the Act.
By a vote of eight in favor and seven opposed, the Columbiana
branch employees selected the
Following the representation election, the Respondent
filed timely objections. On May 7,
however, Joseph Beasley, the
On April 5, 2005, the Board overruled the objections and certified union representation. On April 20, 2005, Union Representative Alan Pero sent a letter to Chris Britt informing him of this event and requesting that the Respondent bargain. In preparation for such bargaining, Pero requested copies of all company policies and procedures, wage rates and benefits, as well basic personnel information for each employee. At some point between April 20 and June 8, 2005, Meany responded to Pero’s request for information.20
On June 8, 2005, the Union and the Respondent conducted
their first negotiating session in
E. The
Respondent’s Employment Actions After the
March 26 Election
The complaint alleges that, following the March 26 election, the Respondent took adverse action against employees. The alleged acts consisted of interrogation by an auditor as to how an employee voted, suspension of annual evaluations and pay raises, changes in uniform requirements and employee equipment rental policies, and discriminatory treatment of prounion employees Williams, Plunkett, and Baker.
1. The March 31 audit
Dave Bellinger, an internal auditor employed by the Respondent, visited the Columbiana branch on March 30 and 31. The visit was precipitated by a telephone call on a hotline received by Global Compliance Services (GCS), the Respondent’s ethics and compliance contractor. Pursuant to procedure, the call was forwarded to “someplace in management within the Company.”22 Bellinger asked branch employees four standard questions that he asked in every audit: whether the employee was aware of any company policy violations; whether the employee was aware of any violations of law; whether the employee was aware of any unethical employee behavior; and whether there were any situations that needed to be addressed. However, in the course of his conversations with employees, he learned of the recent representation election. He also mentioned hearing that the election had been close and asked Williams, “were you an eight or a seven.” Williams told him that he “was an eight.” Bellinger gave Williams his business card and reassured him that everything they discussed would be held “in confidence and would be forwarded on to Mr. Blackadar.” Bellinger also told Williams that “he had spent a little more time” with him “than any of the other employees that he had met with that day and, if questioned about why he spent so much time speaking with him, that Williams should tell branch management “he was checking over all the documents, being the insurance and the log book.”23
Bellinger also spoke with Baker. Bellinger asked him about any illegal activities that may have taken place at the Columbiana store branch. Baker told Bellinger about the tape. Bellinger said that Blackadar would probably like to listen to the recording. Blackadar called Baker at home that evening and asked him what was on the tape. Baker told him. Blackadar then asked if Baker had the tape. Baker said he did not. Blackadar then asked Baker to get a copy of the tape so they could meet and listen to it. It does not appear that Baker responded to that request.24
2. Annual evaluations and pay raises
The Respondent has a companywide policy for the initiation of performance evaluations at the branch level. Every year since the Respondent took over operations in 2000, Columbiana branch supervisors would complete an employee’s performance evaluation and hand it to Chris Britt. After reviewing and approving the form, Chris Britt would meet one-on-one with the employee.25 Pay raises were then awarded in April.
In 2004, however, the Respondent decided to suspend evaluations on the ground that it would be unlawful to grant raises during the pendency of a contested union campaign.26 Chris Britt confirmed this to Williams on April 20, when he explained that annual performance evaluations and pay raises were on hold because Stewart was concerned “about the one on one meetings, implications to evaluations” of employees and “grievances or issues they might have with discussing wages.”27
3. Rental policy changes
The Respondent’s employee handbook provides, in pertinent part, a written policy regarding employee use of company equipment:
3. Employees may rent available URI equipment at a discount of 50% from the Branch’s book rates, plus all charges for delivery and pickup, fuel, taxes and any other specific costs connected with the employee’s use of equipment.28
Nevertheless, prior to the March 26 election, Chris Britt had a separate policy at the Columbiana branch—one that allowed branch employees to use company equipment at no-charge, provided the equipment was not requested by a paying customer.29 In a conference call in February, Stewart did remind Chris Britt and other branch managers about the Respondent’s national policy prohibiting no-charge contracts.30
After the March 26 election, as Millhorn warned Baker on February 16, the employee equipment rental policy changed. On April 1, Chris Britt informed Plunkett that there would be no more free rentals and that he would have to wear his full uniform—not just the uniform shirt.31 In addition, Baker was charged for the use of equipment on May 8, while Williams was charged for signing out equipment on June 1.32
In a letter, dated May 22, Stewart formally counseled Chris Britt for violating the Respondent’s employee equipment rental policy:
Please be advised that this letter is intended to be a written warning for violating PPB for the past several years at your branch. Going forward renting United Rentals equipment to employees for “0” no charge will result in disciplinary action up to terminations. For your information, the current policy is all employee rentals will be invoiced at 50% of manager rate.
4. Uniform requirement
Prior to March, the Respondent had a vague dress code. Its written policy merely stated that employees could be disciplined for failing “to present a proper appearance or wear uniform in prescribed manner” or wearing “required safety equipment including protective footwear and eyeglasses in all applicable job classifications.”33 Employees were issued a shirt with the company logo and blue khaki pants when hired. Prior to March, however, Chris Britt permitted employees to wear company sweatshirts. He also permitted truckdrivers to wear jeans. In March, however, Chris Britt changed the branch policy. The change was not done at Stewart’s direction. Stewart never discussed the issue with branch managers and, in fact, visited the Columbiana branch in February and did not notice any dress code problems.34 Stewart would reprimand employees during branch visits if he noticed that they were not wearing the company-issued button-down shirt and khakis. However, he did not discuss the issue with branch managers and, in fact, visited the Columbiana branch twice in February and did not notice any dress code violations.
Prior to the election, at least two employees, Williams
and Plunkett, wore jeans to work. On or
about April 1, Chris Britt and Michael Britt changed the branch dress policy. Chris Britt informed Williams that he could no
longer wear jeans. At the
5. The Respondent’s treatment of Williams
Williams was a known supporter of the
On April 20, Safety Officer Matt Roberts issued Williams a disciplinary notice and written warning for violating company procedure relating to securing of equipment:
Bob Williams left our lot on Tuesday April 20, 2004 hauling a mini excavator. The excavator was only anchored at one end of the machine and there was no tie down on the boom. Bob has been through training and knows the proper procedure for equipment tie downs.36
Williams objected to the notice, refused to sign the form,
explained that his actions complied with
On June 20, Chris Britt informed Williams, a delivery
truck operator, that he was being transferred to the
Williams reported to the
The month that followed did not go smoothly for Williams. Williams was absent from work on June 11, a Friday, June 21, a Monday, and July 13, a Tuesday. However, in each instance, Williams called-in to work to notify a supervisor that he would be out that day. On July 21, Chris Britt issued Williams a “first warning for unacceptable attendance” because he “called-off” on days that were adjacent to weekends or other time off. Williams refused to sign the form and insisted he was sick on those days and would provide doctor’s notes. He never did.41
During the morning of September 9, Williams spoke with Michael Britt about Plunkett’s consistently being sent home early because of the lack of work. Williams offered to take his place that day if the store needed to send someone home early. Williams also noted, referring to his stomach, that he had “downstairs plumbing problems.” At 9 a.m., Jasenec told Williams that work was slow and he could clock out.42
Williams clocked out and drove to nearby