Nations Rent, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 2004

342 N.L.R.B. 179 (N.L.R.B. 2004)

NATIONS RENT, INC.
342 NLRB No. 19
179
Nations Rent, Inc. and International Union of Operat-
ing Engineers, Local 150, a/w International Un-
ion of Operating Engineers, AFL–CIO. Cases
25–CA–27257–1, 25–CA–27257–3, 25–CA–
27608–1, 25–CA–27613–1, 25–CA–27686–1
amended, and 25–CA–27994–1
June 29, 2004
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On August 28, 2003, Administrative Law Judge Mar-
garet M. Kern issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief,
and the General Counsel and Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision1 and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified, and to adopt the recommended Order as modi-
fied and set forth in full below.2
The judge found, inter alia, that the Respondent dis-
charged employee Jerry Bickel in violation of Section
8(a)(3) and (1) and instigated police interference with
lawful picketing, in violation of Section 8(a)(1). Except-
ing, the Respondent contends that the record evidence
does not establish that Bickel was discharged, and that
the Respondent involved local police in speaking to
pickets to allay legitimate concerns that the pickets were
violating the law. We find merit in these exceptions and
therefore reverse both of the judge’s unfair labor practice
findings.
I. THE ALLEGED DISCHARGE OF JERRY BICKEL
A. Facts
The Respondent, Nations Rent, Inc., is a corporation
engaged in the sale, service, and rental of construction

1 In Nations Rent, Inc., 339 NLRB 830 (2003), the Board found that
the Respondent had failed to adhere to certain terms of a settlement
agreement, and that the judge had erred in reinstating that agreement
and dismissing the complaint. Based on those findings, the Board
ordered the complaint reinstated and remanded the case to the judge to
adjudicate the merits of the unfair labor practice allegations. The judge
has done so, and the case is before us again on the Respondent’s excep-
tions to her supplemental decision.
Member Schaumber notes that he dissented in the earlier proceeding
and would not have set aside the settlement agreement under the cir-
cumstances presented there.
2 We have modified the judge’s recommended Order in light of our
findings herein, and we have substituted a new notice to comport with
these modifications.
equipment and supplies. The events involved in this case
transpired at the Respondent’s Elkhart, Indiana facility.
In late March 2000, Jerry Bickel, a member of the Inter-
national Union of Operating Engineers, Local 150, a/w
International Union of Operating Engineers, AFL–CIO
(the Union), sought employment at the Respondent’s
Elkhart facility with the objective of organizing the Elk-
hart employees. Bickel secured a position with the Re-
spondent and began actively promoting the Union in the
spring of 2000. As Bickel proceeded with his organizing
efforts over the ensuing year, the Respondent took sev-
eral measures to counteract those efforts. The Respon-
dent does not except to the judge’s finding that some of
those measures constituted unfair labor practices.
On May 19, 2001,3 Bickel approached Branch Man-
ager Dan Olinger and, in the presence of Assistant
Branch Manager Chad Green told Olinger that he was
going on strike. Bickel simultaneously handed Olinger a
letter specifying that the strike was “in protest of the [Re-
spondent’s] unfair labor practices” and stating that he
looked forward to returning to work once the “dispute”
was resolved. Bickel then said, “I’m gone,” and Olinger
replied, “Okay.” As Bickel left, he shook hands with
Green and told him it had been nice working with him.
Later that same day, May 19, Olinger drafted and
mailed a letter to Bickel that accepted Bickel’s “letter of
resignation” and asked him to contact Olinger to arrange
for the return of any company property he still had in his
possession. Bickel received this letter the following
week and replied, on June 4, with a certified letter stating
that he had not resigned but was on an unfair labor prac-
tice strike. In his letter, Bickel reiterated his intention to
return to work “upon the resolution of the unfair labor
practices.” Bickel eventually received a certified mail
receipt verifying that Olinger had received his June 4
letter. The record discloses no action by the Respondent
in response to Bickel’s June 4 letter.
B. Discussion
The General Counsel has the burden of proving every
element of a claimed violation of the Act. Des Moines
Register & Tribune Co., 339 NLRB 1035, 1037 fn. 5
(2003). Where an unlawful discharge is alleged, it is
self-evident that the General Counsel must show, first
and foremost, a discharge. The fact of a discharge does
not depend on the use of formal words of firing. Lance
Investigation Service, 338 NLRB 1109, 1110 (2003);
North American Dismantling Corp., 331 NLRB 1557
(2000), enfd. in relevant part and remanded 35
Fed.Appx. 132 (6th Cir. 2002). “It is sufficient if the
words or action of the employer ‘would logically lead a

3 All dates hereafter are in 2001, unless otherwise specified.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

180
prudent person to believe his [or her] tenure has been
terminated.’” North American Dismantling Corp., supra
(quoting NLRB v. Trumbull Asphalt Co., 327 F.2d 841,
843 (8th Cir. 1964)).
In the instant case, the evidence offers no support at all
for a finding of discharge. At most, the evidence sup-
ports a finding that Respondent perceived a resignation,
and that Bickel corrected that perception. There is noth-
ing to suggest that the Respondent disagreed with
Bickel’s correction.
More specifically, Bickel’s message of May 19 was
confusing. On the one hand, his letter said that he was
going on strike. On the other hand, his oral statement
was that “I’m gone” and that it had been nice working
with the Respondent. Olinger interpreted Bickel’s words
as a severance of the employment relationship. Thus,
Olinger wrote Bickel a letter which accepted Bickel’s
“letter of resignation.”4 Olinger sought the return of
company property that Bickel had in his possession.
Bickel then acted to correct the misperception. Bickel
said that he was on strike and had not resigned. Most
significantly, the Respondent did not quarrel with
Bickel’s “last word,” and it has taken no steps to retrieve
the company property that Bickel had in his possession.
In finding that the Respondent discharged Bickel, the
judge relied solely on Olinger’s May 19 letter. To de-
termine what a prudent person in Bickel’s situation
would logically believe as to his employment status,
however, it is necessary to consider the entire course of
relevant events following Bickel’s declaration of an un-
fair labor practice strike, and not merely the Respon-
dent’s May 19 letter. As noted above, Bickel responded
to Olinger’s May 19 letter accepting Bickel’s resignation
with a certified letter dated June 4 emphatically stating
that he had not resigned. Bickel knew the Respondent
had received his letter because the certified mail receipt
was returned to him. There is no evidence that, after
receiving Bickel’s June 4 letter, the Respondent persisted
in its position that Bickel had resigned. The Respondent
did not reiterate that position. Neither did it communi-
cate to Bickel in some other way that it still viewed him
as having resigned, such as by renewing its May 19 re-
quest that Bickel return any company property in his
possession, or by mailing him a final paycheck.
Viewing this course of events from the employee’s
perspective, as required under Board law, Pink Supply
Corp., 249 NLRB 674 (1980), we are not persuaded that
a prudent person in Bickel’s position logically would

4 Although the Respondent referred to Bickel’s “letter” of resigna-
tion, the reference cannot be read in isolation, but must be interpreted in
the context of Bickel’s contemporaneous comments that he was “gone”
and that it had been nice working for the Respondent.
have concluded that his employment had been termi-
nated. This is not a case in which the employer contin-
ued to insist that the employee had resigned even after
receiving the employee’s denial of any resignation. See
Emergency One, Inc., 306 NLRB 800 (1992). Here, the
General Counsel did not present any evidence to suggest
that the Respondent, after receiving Bickel’s June 4 letter
clearly and expressly denying that he had resigned, per-
sisted in the view that Bickel’s employment with the
Respondent had ended. Under these circumstances, a
prudent person would not conclude that he had been dis-
charged.5
We agree with our colleague that the test is whether
Bickel would reasonably believe that he had been dis-
charged. Based on the Respondent’s acquiescence in
Bickel’s last word, and on the Respondent’s allowing
Bickel to retain company property, Bickel could not rea-
sonably conclude that he had been fired. Further, at the
very least, the General Counsel (who bears the burden of
proof) has not established the contrary.
Our colleague asserts that the Respondent’s 8(a)(1)
conduct would lead Bickel to believe that he had been
discharged. We disagree. That conduct could arguably
support a finding that a discharge would be discriminato-
rily motivated, but it does not support the proposition
that Bickel was discharged or that he could reasonably
perceive himself as such. As discussed above, this case
involves an incorrect perception of resignation, which
misperception has been corrected.
II. ALLEGED INSTIGATION OF POLICE INTERFERENCE WITH
LAWFUL PICKETING
A. Facts
The Respondent’s Elkhart facility is situated on the
south side of Toledo Road, behind a fence that runs par-
allel with that thoroughfare. Early in the morning on
May 21, members of the Union began picketing along
the south edge of Toledo Road, in the vicinity of the Elk-
hart facility’s east gate. About an hour later, Olinger
contacted the local police department and requested that
a police officer be dispatched to the Elkhart facility.
Officer James Smith arrived at the facility in response to

5 The cases cited by the dissent are distinguishable, as each presents
facts probative of a discharge that are absent here. In Accurate Wire
Harness, 335 NLRB 1096 (2001), enfd. 86 Fed.Appx. 815 (6th Cir.
2003), the employer told the employees not once but twice that their
walkout would be treated as a resignation and posted a “Now Hiring”
sign at the front entrance to its building. In Harvard Industries, 294
NLRB 1102, 1110–1111 (1989), enfd. 921 F.2d 1275 (D.C. Cir. 1990),
the employer’s letter stated that the employer wished the employees
success in their future endeavors and asked them to “notify us in writ-
ing by June 1st if you would like to be considered for employment in
the future.”

NATIONS RENT, INC.

181
this request and spoke with Olinger, who wanted to know
what the Respondent’s rights were in relation to the
picketing. Officer Smith replied that the pickets could
lawfully picket within a 15-foot public easement border-
ing the road. They could not, however, block the en-
trances or exits to the Respondent’s facility, nor could
they stray outside the public easement onto the Respon-
dent’s property. After speaking with Olinger, Officer
Smith approached the pickets and relayed the same in-
formation to them.
Over the next few days, the picketing continued. On
May 23, Olinger again asked the police to come to the
Elkhart facility. As before, Officer Smith was dispatched
and spoke with Olinger. Olinger told Officer Smith that
the pickets’ cars had been parked outside the public
easement and on the Respondent’s property, and that the
cars had been moved after he called the police. Olinger
said he suspected that the pickets had a police scanner,
which enabled them to remove their cars from the Re-
spondent’s property before the police arrived. Olinger
also told Officer Smith that the pickets were following
employees home at night. Officer Smith testified that
Olinger wanted him to “look into that or ask [the pickets]
about that.”
Acting on Olinger’s concerns, Officer Smith spoke to
the pickets and questioned them regarding each of Olin-
ger’s allegations. Officer Smith warned them that each
allegation, if true, could justify their arrest under state
law. The pickets admitted following the Respondent’s
employees to jobsites, but denied following them home
at night. The pickets also denied possessing a police
scanner. One of the pickets admitted that he had moved
his car onto the Respondent’s property, but said that he
did so only to accommodate the movement of the Re-
spondent’s equipment. The Respondent does not except
to the judge’s finding that it interfered with the pickets,
in violation of Section 8(a)(1), by parking heavy machin-
ery outside its fence and erecting scaffolding within the
15-foot margin identified by Officer Smith as a public
easement.
B. Discussion
The judge found that the Respondent’s conduct on
May 23 (i.e., calling the police and asking the police to
question the pickets) violated Section 8(a)(1) of the Act.
The Respondent excepts. We find merit in the Respon-
dent’s exceptions and therefore reverse the judge’s find-
ing of an 8(a)(1) violation.
It is well established that an employer may seek to
have police take action against pickets where the em-
ployer is motivated by some reasonable concern, such as
public safety or interference with legally protected inter-
ests. See Great American, 322 NLRB 17, 21 (1996). So
long as the employer is acting on the basis of a reason-
able concern, Section 8(a)(1) is not violated merely be-
cause the police decide that, under all the circumstances,
taking action against the pickets is unwarranted.
Here, the Respondent involved the police based on a
reasonable concern that the pickets were trespassing on
its property, monitoring a police scanner, and following
employees home. These concerns fully justified the Re-
spondent’s involvement of the police.6 Concededly, the
Respondent unlawfully parked machinery outside its
fence and erected scaffolding on a public easement.
However, these facts do not establish that, in contacting
the police, the Respondent was motivated by a purpose to
harass rather than by its reasonable concerns. There is no
dispute that trespassory picketing occurred: one of the
pickets admitted trespassing on the Respondent’s prop-
erty. Our colleague says that the Respondent caused this
trespass by moving a piece of equipment. However, that
does not negate the fact of trespass. Further, there is no
showing that in making way for the Respondent’s
equipment, the picket’s sole option was to trespass. He
could have also driven away on Toledo Road and re-
turned once the equipment had been moved. There is
also no dispute that the trespass ended shortly after Olin-
ger called the police, reasonably suggesting the possible
use of a police scanner. The pickets also admitted fol-
lowing employees as they left the Elkhart facility. In
light of that fact, Olinger reasonably could be concerned
that the pickets might be following employees home.
This concern privileges the minimal intrusion of asking
Officer Smith merely to “look into” or “ask” the pickets
whether they were doing so. Thus, for all of the forego-
ing reasons, we find that the Respondent’s involvement
of the police on May 23 did not violate Section 8(a)(1).
In asserting a contrary view, our colleague relies on
the Respondent’s unlawful effort to interfere with the
pickets. However, that conduct does not preclude the
Respondent from calling police authorities to report a
reasonable concern that local laws were being violated.
A contrary view would mean that a person who has vio-
lated the Act is precluded from calling local police to
report local infractions. Our colleague denies that this is
his view. However, that denial is premised on the as-
serted “spuriousness” of the Respondent’s concern about
the picketing. As set forth above, that concern was far
from spurious.

6 This case is distinguishable from The Greenbrier, 340 NLRB 819
(2003), in which the panel majority found that the respondent lacked
any reasonable basis for seeking police assistance in response to lawful
picketing. The Chairman adheres to his dissenting view in that case
that the respondent had a reasonable concern sufficient to warrant the
seeking of police assistance.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

182
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Nations Rent, Inc., Elkhart, Indiana, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining in effect, either orally or in writing, a
no-solicitation/no-distribution rule that unlawfully pre-
vents employees from engaging in solicitation or distri-
bution during nonworktime.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Threatening to close the business because employ-
ees engage in activities on behalf of or support the Inter-
national Union of Operating Engineers, Local 150, a/w
International Union of Operating Engineers, AFL–CIO
(the Union), or any other union.
(d) Telling employees that they would be kept apart,
that they would not be allowed to speak with one an-
other, that they would not be allowed to talk about a un-
ion, and that their activities would be monitored because
of their activities on behalf of, or support for, the Union
or any other union.
(e) Prohibiting employees from wearing union buttons,
union hats, or any other type of union insignia while at
work.
(f) Discharging, disciplining, or otherwise discriminat-
ing against any employee for supporting the Union or
any other union.
(g) Interfering with the right of employees to engage in
picketing by physically blocking the area where picket-
ing is taking place.
(h) In any like or related manner interfering with, re-
straining, 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) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline and
September 26, 2000 discharge of Jerry Bickel, and within
3 days thereafter, notify Bickel in writing that this has
been done and that the discipline and discharge will not
be used against him in any way.
(b) Within 14 days after service by the Region, post at
its Elkhart, Indiana facility copies of the attached notice
marked “Appendix.”7 Copies of the notice, on forms

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
provided by the Regional Director for Region 25, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since July 1, 2000.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER WALSH, dissenting.
Contrary to my colleagues, I find no merit in the Re-
spondent’s exceptions in this case. The judge correctly
determined that the Respondent unlawfully discharged
Jerry Bickel for a second time on May 19, 2001, in viola-
tion of Section 8(a)(3) and (1) by treating Bickel’s decla-
ration of an unfair labor practice strike as a resignation.
The judge also correctly found that the Respondent inter-
fered with lawful picketing in violation of Section 8(a)(1)
by instigating the questioning of pickets by local police.
I. THE DISCHARGE OF JERRY BICKEL
In determining whether an employee has been dis-
charged, the relevant events must be viewed from the
employee’s perspective, not the employer’s. Flat Dog
Productions, 331 NLRB 1571 (2000) (citing Brunswick
Hospital Center, Inc., 265 NLRB 803, 810 (1982)). The
test, in such cases, is whether the employer’s statements
would reasonably lead the employee to believe that he or
she has been discharged. Id. It is also well established
that an employer unlawfully discharges striking employ-
ees by erroneously treating them as if they had resigned.1
In assessing whether Bickel would reasonably have con-
sidered himself discharged in this case, the entire course

1 See, e.g., Accurate Wire Harness, 335 NLRB 1096 (2001) (em-
ployer unlawfully discharged employees engaged in a protected strike
when it told them that it would treat the walkout as a resignation), enfd.
86 Fed.Appx. 815 (6th Cir. 2003); Harvard Industries, 294 NLRB
1102, 1110–1111 (1989) (employer unlawfully discharged employees
honoring the union’s picket line when it sent them letters stating that it
regretted that the employees voluntarily resigned), enfd. 921 F.2d 1275
(D.C. Cir. 1990).

NATIONS RENT, INC.

183
of relevant events through June 2001,2 must be taken into
account.
Just over 1 month after gaining employment at the Re-
spondent’s Elkhart facility, Bickel, a member of the In-
ternational Union of Operating Engineers, Local 150,
a/w International Union of Operating Engineers, AFL–
CIO (the Union), began actively seeking to organize the
Respondent’s employees. As Bickel’s activities became
apparent, the Respondent set out to silence Bickel and
any other employee who shared his union sympathies.
The Respondent forbade Bickel to talk about the Union
or to speak with another prounion employee at work, and
told Bickel that he was being monitored. Just a few
months before the discharge at issue here, the Respon-
dent fired Bickel for wearing a union hat to work. Al-
though the Respondent reinstated Bickel, it did not re-
nounce its campaign to stifle his organizing activities.
The Respondent subsequently disciplined Bickel for dis-
playing a sample collective-bargaining agreement in the
Elkhart facility, even though displays of personal items
were generally permitted. The Respondent does not ex-
cept to the judge’s finding that all of the foregoing con-
duct violated the Act. “These uncontested violations do
not disappear altogether. ‘[T]hey remain, lending their
aroma to the context in which the contested issues are
considered.’” Rock-Tenn Co. v. NLRB, 69 F.3d 803, 808
(7th Cir. 1995) (quoting NLRB v. Shelby Memorial Hos-
pital Assn., 1 F.3d 550, 567 (7th Cir. 1993)).
Following these events, on May 19 Bickel declared a
strike in protest of the Respondent’s unfair labor prac-
tices. He gave Elkhart branch manager, Dan Olinger, a
letter stating as much. Although Bickel’s letter made no
mention of resigning and, in fact, specifically stated
Bickel’s intent to return to work upon resolution of the
“dispute” over the unfair labor practices, the Respondent
immediately proceeded to act as if Bickel had resigned.
On the very day that Bickel declared his unfair labor
practice strike, the Respondent mailed Bickel a letter
purporting to accept his “letter of resignation.” On June
4, Bickel replied with a letter denying that he had re-
signed and reiterating his desire to return to work once
the Respondent’s unfair labor practices had ceased. This
letter was greeted by complete silence.
These events would reasonably lead Bickel to believe
that he had been discharged. By its conduct over the
course of the preceding year, the Respondent had clearly
conveyed to Bickel its willingness to threaten, discipline,
and even discharge him in order to stifle his prounion
activities. Thus, when Olinger falsely characterized
Bickel’s declaration of an unfair labor practice strike as a

2 All dates hereafter are in 2001, unless otherwise specified.
resignation, Bickel had every reason to believe that he
had been discharged. Nevertheless, he gave Olinger an
opportunity to change his position by sending the June 4
letter. Olinger did not reply. Divorcing Olinger’s si-
lence from the history of the Respondent’s treatment of
Bickel, my colleagues view it as suggesting Olinger’s
position might have changed. Before finding a dis-
charge, they would require Olinger to expressly reiterate
his May 19 position. But when the handwriting is al-
ready on the wall, reasonable people can read it without
needing to have it reinscribed. Viewing Olinger’s si-
lence from Bickel’s perspective, which was necessarily
shaped by the Respondent’s longstanding hostility to-
ward his union activity, Bickel would have reasonably
construed it to mean that there was no change of position
on Olinger’s part. His “resignation” was accepted. In
other words, he was discharged for participating in a law-
ful strike.3
My colleagues maintain that the evidence in this case
does not demonstrate a discharge, but merely a misper-
ception on Olinger’s part that Bickel created by saying
“I’m gone” and that it had been nice working with the
Respondent. These statements, according to my col-
leagues, were “confusing” and explain Olinger’s May 19
letter to Bickel accepting his “letter of resignation.”
However, my colleagues do not dispute that Bickel’s
letter said nothing about resigning, and in fact contra-
dicted any such notion by unambiguously stating
Bickel’s intent to return to work. Thus, this case is not,
as the majority contends, one of misperception on Olin-
ger’s part, but rather one of mischaracterization.
More fundamentally, Olinger’s perceptions, whatever
they may have been, are irrelevant to the determination
of whether Bickel was discharged. As the majority ac-
knowledges, a discharge is determined by reference to
the employee’s perspective. Bickel knew that his letter to
the Respondent contained no suggestion of resignation.
Bickel also knew that the Respondent had repeatedly
resorted to unlawful conduct in its attempts to squelch
his protected activities.4 Thus, against that background,

3 Accurate Wire Harness, supra; Harvard Industries, supra.
4 The majority contends that the Respondent’s prior unlawful con-
duct toward Bickel does not support a finding that Bickel was dis-
charged, but rather would only support a finding of discriminatory
motivation once the fact of discharge were otherwise established. That
is plainly incorrect. Again, under the applicable standard, the disposi-
tive question is whether the Respondent’s conduct would reasonably
lead Bickel to believe he had been discharged. Because people have
memories, Bickel would of course consider the history of his treatment
by the Respondent as well as Olinger’s mischaracterization of his letter
in forming the reasonable belief that he had been discharged. At that
point, the Respondent’s prior 8(a)(1) conduct would again be relevant,
as my colleagues acknowledge, to a finding that the discharge was
discriminatorily motivated.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

184
when Olinger mischaracterized his letter as a “letter of
resignation,” Bickel reasonably believed he had been
discharged—and therefore, as a matter of law, he was.
II. INSTIGATION OF POLICE INTERFERENCE WITH
LAWFUL PICKETING
My colleagues correctly state that an employer may
lawfully seek police assistance in response to picketing
so long as the employer is motivated by a reasonable
concern relating to public safety or the employer’s le-
gally protected interests. See Great American, 322
NLRB 17, 21 (1996). In this case, however, the Respon-
dent enlisted the help of police not out of any such rea-
sonable concern, but for the purpose of interfering with
lawful picketing. See The Greenbrier, 340 NLRB 819
(2003). Therefore, the judge correctly found the Re-
spondent’s conduct in this regard unlawful.
The majority accurately summarizes the events that
precipitated the finding of police interference to which
the Respondent now excepts. However, once again, the
majority underplays the larger context of harassment and
interference in which these events took place. During the
4-day period in which the Respondent twice contacted
police, the Respondent carried out an escalating cam-
paign of physical interference with the pickets. On May
22, it parked seven pieces of heavy machinery outside its
fence and within the public easement. Picketing contin-
ued, so on May 23—the date of the alleged instigation of
police interference—it parked nine pieces of equipment
within this same easement area. That same day, just in-
side the fence, it ran a diesel-powered generator so loud
that Officer Smith told Olinger he would be unable to
talk to the pickets unless it were shut off. Once again,
however, picketing continued. When the pickets arrived
on May 24, they found the public easement in front of
the Elkhart facility completely filled and blocked by
scaffolding. The Respondent does not except to the
judge’s finding that all of this physical interference with
picketing violated Section 8(a)(1) of the Act.
The Respondent’s escalating attempts to physically
obstruct picketing strongly undermine the majority’s
conclusion that the Respondent had no harassing purpose
in instigating police interference with the pickets on May
23. In light of those contemporaneous attempts, it is evi-
dent that the Respondent sought police assistance on
May 23 as part of a transparent and continuing effort to
interfere with the picketing by any means available.
When the police failed to get rid of the pickets, the very
next day the Respondent abandoned any pretense of act-
ing rationally and simply lined the edge of Toledo Road
with useless scaffolding. In light of the Respondent’s
evident purpose to harass the pickets, Olinger’s unsub-
stantiated suspicions and conjectures about police scan-
ners and pickets stalking employees to their homes do
not constitute “reasonable concerns” justifying the in-
volvement of police.
My colleagues fault the preceding analysis. Because I
view the Respondent’s instigation of police interference
with the pickets within the context of its contemporane-
ous unlawful physical interference, they imply that I
would preclude violators of the Act from calling the po-
lice to report unlawful conduct. That is not my position,
nor is it a fair inference from my analysis. My point is
simply that the spuriousness of the Respondent’s pre-
tended concern over the legality of the pickets’ behavior
is all the more obvious when its conduct is viewed as a
whole.
My colleagues also cite a trespass by one of the pickets
as a reasonable basis for contacting the police. But the
only reason the picket briefly moved his vehicle outside
the public easement and onto the Respondent’s property
was to make way for the movement of one of the pieces
of heavy equipment the Respondent had parked outside
the fence to obstruct picketing. In other words, the Re-
spondent caused the trespass. Under these circum-
stances, that trespass cannot justify contacting the police.
In sum, the Respondent instigated police interference
with lawful picketing in violation of Section 8(a)(1).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated 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 ac-
tivities.

WE WILL NOT maintain in effect, either orally or in
writing, a rule that prohibits you from engaging in solici-
tation or distribution during nonworktime.
WE WILL NOT coercively question you about your un-
ion support or activities.
WE WILL NOT threaten to close our business because
you support the International Union of Operating Engi-
neers, Local 150, a/w International Union of Operating
Engineers, AFL–CIO (the Union), or any other union.

NATIONS RENT, INC.

185
WE WILL NOT tell you that you will be kept apart at
work, that you cannot speak with one another, that you
cannot talk about a union, or that your activities will be
monitored because you support the Union or any other
union.
WE WILL NOT prohibit you from wearing union but-
tons, union hats, or any other type of union insignia
while at work.
WE WILL NOT discharge, discipline, or otherwise dis-
criminate against any of you for supporting the Union or
any other union.
WE WILL NOT interfere with your right to engage in
lawful picketing by physically blocking the area where
picketing takes place.
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, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discipline and discharge of Jerry Bickel, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the discipline and discharge
will not be used against him in any way.
NATIONS RENT, INC.

Steve Robles, for the General Counsel.
James M. Walters, (Fisher & Phillips LLP), for the Respon-
dent.
Alexia Kulwiec, IUOE Local 150 Legal Department, for the
Charging Party.

SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me in South Bend, Indiana on June 3 and 4,
2002.1 A consolidated complaint issued on December 21, 2000,
based on unfair labor practice charges filed on September 29,
2000, by International Union of Operating Engineers, Local
150, a/w International Union of Operating Engineers, AFL–
CIO (the Union) against Nations Rent, Inc. (Respondent). On
April 3, 2001, the Regional Director for Region 25, approved a
settlement agreement resolving the allegations in the December
2000 complaint. On September 20, 2001, an order partially
revoking the settlement agreement and a consolidated com-
plaint issued based on unfair labor practice charges filed on
September 29, 2000, and May 21 and 24, July 2 and July 27,
2001. On November 14, 2001, the Regional Director approved
a second settlement agreement resolving the allegations of the

1 At the close of the hearing, counsel for the General Counsel re-
quested that the record remain open pending the investigation of a
newly filed charge in Case 25–CA–28107–1. That application was
denied, and I adhere to that ruling. The record was left open for the
purpose of receiving three W-2 forms. Those forms are made a part of
this record as ALJ Exh. 1(a) through (c).
September 2001 complaint. On February 28, 2002, an order
revoking the second settlement agreement and consolidated
complaint issued based on charges filed on September 29,
2000, May 21, May 24, July 2 and July 27, 2001, and January
4, 2002.
On August 12, 2002, I issued a decision recommending dis-
missal of the February 28, 2002 complaint on the ground that
Respondent had complied with the terms of the second settle-
ment agreement. On July 29, 2003, the Board reversed and
concluded that Respondent had failed to comply with material
provisions of the second settlement agreement, and that the
Regional Director had acted properly in setting that agreement
aside. The Board reinstated the February 28, 2002, complaint
and remanded the case to me to consider the presettlement un-
fair labor practice allegations and to make the necessary find-
ings, analysis, and conclusions.
It is alleged in the February 28, 2002 complaint that since
July 2000, Respondent has maintained an unlawful written no-
solicitation/no-distribution rule in its employee handbook. It is
further alleged that on August 8, 2000, Respondent interrogated
an employee and threatened to close the Company if employees
selected the Union as their collective-bargaining representative;
that on August 8, 2000, Respondent orally promulgated and has
since maintained a rule prohibiting employees from talking
about the Union during working hours, and informed employ-
ees they were not to talk with one another and would be kept
apart because of their union activities; that on September 6 and
26, 2000, Respondent instructed employees to remove their
union buttons and union hats; and that commencing on May 21,
2001, Respondent interfered with the Union’s ability to engage
in lawful picketing. Finally, it is alleged Respondent discharged
Jerry Bickel on September 26, 2000, reinstated him on Septem-
ber 27, 2000, issued a written warning to him on April 26,
2001, and discharged him a second time on May 19, 2001,
because of his union activities and because he engaged in an
unfair labor practice strike. Respondent denies that it engaged
in the unfair labor practices alleged.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits and I find the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the sale, service, and rental of con-
struction equipment and supplies, and maintains a facility at
1651 Toledo Road, Elkhart, Indiana, the facility involved in
this case. Toledo Road runs in an east/west direction, and the
facility is located along the south side of the roadway. A chain
link fence that surrounds the facility is situated approximately
30 feet from Toledo Road. There are two gated entrances/exits
along Toledo Road; the east gate is a 30-foot sliding gate, and

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

186
the west gate is a 25-foot swing gate. The 30-foot distance be-
tween the fence and Toledo Road is surfaced with limestone-
gravel paving.
Respondent employs approximately 10 drivers and service
employees at the Elkhart facility. Tim Bontrager is a supervi-
sor, Barry Boggs is a district manager, and Alan Stewart is a
human resource manager. Respondent admits that these indi-
viduals are supervisors and agents of Respondent within the
meaning of the Act. Respondent further admits that Dan Olin-
ger was the branch manager and Chad Green was the assistant
branch manager until the fall of 2001, and that they were, until
that time, supervisors and agents within the meaning of the Act.
Green was promoted to branch manager in September 2001.
On December 17, 2001, Respondent filed a petition for
Chapter 11 relief in the Bankruptcy Court, Wilmington, Dela-
ware. That application was still pending at the time of the hear-
ing.
B. The Organizing Attempt
In late March 2000, organizer Philip Overmeyer, asked
Bickel, a member of the Union, to seek employment at Re-
spondent’s facility and, if hired, to organize Respondent’s em-
ployees. On March 24, 2000, Olinger interviewed and hired
Bickel and Bickel began working on April 3, 2000, as a semi-
truckdriver. From April 3, 2000, to mid-May 2000, Bickel re-
mained covert in his support of the Union. On or about May 15,
2000, he began speaking with employees about the Union.
On July 7, 2000, Respondent conducted a meeting of em-
ployees in its showroom. Among those present were Olinger,
Boggs, and Bontrager. The film, “Little Card, Big Trouble,”
was shown and there was a discussion about the need for a
union at Respondent’s facility. It was mentioned that there was
an organizing drive going on at one of Respondent’s facilities
in Detroit and that management wanted to stop the Union be-
fore it came to Elkhart. Ryan Stoll, a mechanic who had been
hired 2 weeks after Bickel, asked why employees couldn’t have
a retirement plan and an insurance plan like the Union’s plan.
He also asked a question about the pay scale.
On July 13, 2000, Overmeyer met with Bickel and Stoll and
both signed authorization cards. After this meeting, Bickel
continued to talk to employees about the Union. Bickel testified
he spoke to employees during lulls in the workday, and he de-
nied interfering with employees’ work. On September 18, 2000,
Overmeyer sent a letter to Respondent’s employees requesting
them to attend a meeting on September 25, 2000. The only
employee who attended the meeting was Bickel.
C. The Employee Handbook No-Solicitation/No-Distribution
Rule
1. Facts
Respondent publishes and distributes to employees an em-
ployee handbook. The most recent edition of the handbook,
published in July 2000, contains the following provision at
page 34:

Employees may not solicit for organizations, sell goods or
services, or distribute catalogs or literature of any kind during
working hours, or any time in public areas on Company prop-
erty. Employees are prohibited from distributing literature of
any kind in work areas. Outside third parties are also prohib-
ited from entering Company property to solicit or distribute
goods, services, or literature, except as contracted by the
Company.
2. Analysis
No solicitation/no distribution rules using the term “working
hours” are presumptively invalid because that term connotes
periods from the beginning to the end of work shifts, periods
that include the employees’ own time. Our Way, Inc., 268
NLRB 394 (1983). In this case, the handbook rule prohibits
employees from soliciting or distributing literature during
working hours and it is presumptively invalid. Respondent has
not offered any evidence that it communicated or applied the
rule in such a way that it conveyed to employees a clear intent
to permit solicitation or distribution of literature during non-
working time. TeleTech Holdings, Inc., 333 NLRB 402, 403
(2001). I therefore find the rule violates Section 8(a)(1) of the
Act.
D. Events of August 8, 2000
1. Facts
Bickel and Stoll testified that they frequently wore baseball-
type caps to work bearing different corporate logos and they
observed other employees wearing similar caps. Prior to the
events of this case, neither Bickel nor Stoll had ever been told
not to wear these types of caps to work. Both employees also
testified that employees regularly engaged in casual, nonwork
related discussions while they were working, covering such
topics as their children, sports, movies and politics. To Bickel’s
knowledge, no employee was ever told they could not engage
in nonwork related conversations during working time.
On the morning of August 8, 2000, Stoll was in the shop
when he was approached by Bontrager and Olinger. They
summoned him into Bontrager’s office, and the door was
closed. Stoll testified that Olinger said he heard Stoll was talk-
ing to other employees about the Union, and Stoll said yes.
Olinger said that Stoll was not allowed to talk to employees
during working time and that he was not allowed to talk during
breaks or lunchtime. He also said if Stoll tried to bring the Un-
ion in, Respondent would close the doors and that all a union
does is take employees’ money.
Later that morning, Bickel and Stoll were speaking with one
another in the parking lot when Bontrager approached them.
Stoll testified that Bontrager said that they were to be kept
separate, that they were not to talk with one another, and they
were not to talk about the Union. Bickel recalled that Bontrager
said he was supposed to keep he and Stoll apart, they were not
to talk with one another, and that Olinger had told Bontrager to
keep an eye on them. Bickel and Stoll both testified that when
Bontrager thereafter saw them talking with one another, he
frequently asked if they were having a union meeting. Neither
Bontrager nor Olinger testified.
2. Analysis
The applicable test for determining whether the questioning
of an employee constitutes an unlawful interrogation is the
totality of the circumstances test adopted by the Board in

NATIONS RENT, INC.

187
Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
The task is to determine whether, under all the circumstances,
the questioning at issue would reasonably tend to coerce the
employee at whom it is directed so that he or she would feel
restrained from exercising rights protected by Section 7 of the
Act. Medcare Associates, Inc., 330 NLRB 935 (2000), and
cases cited. Applying these principles, it is clear the conversa-
tion in Bontrager’s office was coercive. Stoll testified credibly
and without contradiction that he was summoned into the office
where he met with two supervisors with the door closed. Olin-
ger’s comment that he heard Stoll had been talking about the
Union was immediately followed by an unlawful prohibition
against Stoll’s right to speak to employees during nonworking
time, and by a threat to close Respondent’s business. Under
these circumstances, I find that Olinger unlawfully interrogated
Stoll in violation of Section 8(a)(1), unlawfully prohibited him
from engaging in solicitation of other employees during non-
worktime in violation of Section 8(a)(1), and threatened to
close Respondent’s business in violation of Section 8(a)(1).
With respect to the conversation later that morning, I credit
Stoll and Bickel2 that Bontrager told them that they would be
kept apart from one another, that they were not to talk with
another, that they were not to talk about the Union, and that
thereafter Bontrager would be monitoring their activities. These
statements constituted unlawful threats in violation of Section
8(a)(1).
E. Events of September 6, 2000
1. Facts
On September 6, 2000, Stoll wore a union button to work
that read, “Be Wise, Organize.” Olinger told Stoll, in the pres-
ence of Bickel, that he had to remove the button because he was
not allowed to advertise for the Union on company time.
2. Analysis
Employees have a protected right under Section 7 of the Act
to wear union insignia while working. At the same time, em-
ployers possess an undisputed right to maintain discipline in
their establishments. In adjusting these mutually limiting rights,
the Board has long applied the rule that a ban on wearing union
insignia violates the Act unless it is justified by special circum-
stances. USF Red Star, Inc., 339 NLRB 389, 391 (2003). I
credit Stoll’s testimony that on September 6, 2000, he was told
by Olinger that he was not allowed to wear a union button on
company time. Respondent has not offered evidence of the
existence of any special circumstance that would justify this
prohibition. Olinger’s conduct therefore violated Section
8(a)(1).

2 Although I discredited a portion of Bickel’s testimony in my first
decision on the issue of his vacation pay, he was a generally credible
witness when testifying to the underlying unfair labor practices. His
testimony was in large measure uncontradicted by Respondent’s wit-
nesses. In addition, his testimony was in some instances corroborated
by Stoll, also a credible witness.
F. Events of September 26, 2000: Bickel’s First Discharge
1. Facts
On September 26, 2000, Bickel, accompanied by Stoll, wore
a baseball cap to work with lettering that read, “IUOE, Local
150..3 Olinger approached them and told Bickel he could not
wear the hat. When Bickel asked why, Olinger said that Bickel
was insubordinate and that he was in violation of page 34 of the
employee handbook. Bickel said it was just a hat, but Olinger
stated that it was grounds for termination and that in addition,
Bickel was not supposed to speak to anyone or hand out litera-
ture during company hours. Bickel asked, “All this for a hat?”
Olinger responded, “Not for any organizations, that was in the
handbook.” Green, who was present during this conversation,
added that not even a Nike hat could be worn. Bickel asked if
he was being fired, and Olinger said, “Terminated, by the
handbook.” Bickel left the premises. Green, the only witness
called by Respondent to testify at the hearing, was not asked
about this conversation.
On the evening of September 26, 2000, Bickel retrieved a
phone message left by Barry Boggs. Bickel called Boggs the
following morning and Boggs said that he was overriding Olin-
ger’s decision to terminate him and Boggs asked if he would be
interested in coming back to work. Bickel said yes and he re-
turned to his regular duties on September 28, 2000. He was
fully repaid for the time he was not at work. After he returned
to work he wore his union hat on a daily basis. For 6 months
following his reinstatement, Bickel worked without incident.
2. Analysis
In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board established an analytical framework for deciding cases
turning on employer motivation. To prove that an employee
was discharged in violation of Section 8(a)(3), the General
Counsel must first persuade, by a preponderance of the evi-
dence, that an employee’s protected conduct was a motivating
factor in the employer’s decision. If the General Counsel is able
to make such a showing, the burden of persuasion shifts “to the
employer to demonstrate that the same action would have taken
place even in the absence of the protected conduct.” Wright
Line, supra at 1089. See also Manno Electric, 321 NLRB 278,
280 fn. 12 (1996). The elements commonly required to support
a finding of discriminatory motivation are union activity, em-
ployer knowledge, and employer animus. Farmer Bros. Co.,
303 NLRB 638, 649 (1991), enfd. mem. 988 F.2d 120 (9th Cir.
1993).
The evidence establishes that on September 26, 2000, Bickel
was fired because he wore a union hat to work. Counsel for the
General Counsel has satisfied his Wright Line burden that
Bickel’s union activity was the motivating reason for his dis-
charge. Respondent has not put forward any evidence to dem-
onstrate that it would have discharged Bickel on September 26,
2000, absent his union activity. I therefore find Bickel’s dis-
charge violated Section 8(a)(1) and (3) of the Act.

3 Stoll had been suspended on September 23, 2000, 3 days before
this incident. His suspension, and his subsequent discharge on Septem-
ber 28, 2000, were resolved in the first settlement agreement.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

188
I credit Bickel’s testimony that on September 26, 2000, he
received a message from Boggs offering to reinstate him to
work. Bickel accepted that offer and returned to his regular
duties on September 28, 2000. It is not disputed that Bickel was
made whole for the time he was not at work.
G. Events of April 26, 2001
1. Facts
Bickel testified that on occasion he observed nonwork re-
lated literature, including a sales catalog and a Chicago Bulls
game book, on top of a table in the employee break area. He
also observed employees displaying and selling personal items
in work areas. One employee displayed a Notre Dame football
helmet in the company showroom, and the helmet was pur-
chased by a customer. Another employee was observed, in the
presence of Olinger and Bontrager, offering his personal tools
for sale in the front counter area of the shop. The same em-
ployee was later observed in the service area of the shop trying
to sell the same tools. Neither employee was disciplined for
engaging in these activities.
On April 25, 2001, Bickel left a copy of a collective-
bargaining agreement beside another employee’s toolbox. It is
not clear from the record where the toolbox was located at the
time, i.e., in a work area or a nonwork area. Bickel passed by
the employee and told him he had left something by his toolbox
and to take a look at it. Later that day, Bickel saw the employee
and Olinger standing together looking at the agreement. The
next day, April 26, 2001, Bickel was given a disciplinary action
report by Olinger that read, “soliciting and distributing litera-
ture for an organization on company property during working
hours. Jerry must stop this immediately.” Later that day, Bickel
asked Olinger, in the presence of Bontrager, whether the warn-
ing meant he could not talk to employees about the benefits of a
union. Olinger said it was in the handbook that there could be
no solicitation for an organization on company property or on
company time, and that if Bickel was talking about an organiza-
tion, that meant he was not working.
2. Analysis
Contrary to the assertion made in Respondent’s brief, there is
no evidence that Bickel interfered with any employee’s work,
or that he failed to perform his own work, when he left the
collective-bargaining agreement by another employee’s tool-
box. While it is not clear where the toolbox was located, it is an
issue that need not be resolved since even if Bickel left the
agreement in a work area, Respondent had a past practice of
allowing employees to display personal items in work areas. To
have disciplined Bickel for leaving a union contract arguably in
a work area, while not having disciplined other employees who
left personal items in work areas, Respondent violated Section
8(a)(1) and (3) of the Act.
H. Events of May 19, 2001: Bickel’s Second Discharge
1. Facts
On the morning of May 19, 2001, Bickel told Olinger that he
was going out on strike and he handed Olinger a letter stating
that the strike was to protest Respondent’s unfair labor prac-
tices. The letter further stated that Bickel looked forward to
returning to work once the dispute was resolved. Bickel testi-
fied that at no time did he tell Olinger, or anyone else, that he
was quitting or that he intended to quit. The following week,
Bickel received a certified letter from Olinger, dated May 19,
2001, which stated, in relevant part, “I acknowledge receipt and
accept your letter of resignation effective May 19, 2001.” By
certified letter dated June 4, 2001, Bickel wrote Olinger that he
had not resigned, that he had gone out on an unfair labor prac-
tice strike, and that he wished to return to work on resolution of
the dispute.
2. Analysis
I credit Bickel’s testimony that on May 19, 2001, he first
orally advised Olinger that he was going out on strike, and then
handed him a letter restating the same fact. Respondent argues
in its brief that Olinger was “under the impression” that Bickel
quit. The difficulty with that argument is that Olinger did not
testify to his impressions, or to anything else, because he was
not called by Respondent as a witness. Bickel’s credible testi-
mony is that he clearly conveyed to Olinger he was going out
on strike. Olinger’s letter to Bickel on May 19, 2001, stating
that he was accepting Bickel’s “resignation,” conveyed the
message that participating in a lawful strike was incompatible
with continued employment with Respondent. I find Bickel was
terminated on May 19, 2001, in violation of Section 8(a)(1) and
(3) of the Act.
I. The Events of May 21–24, 2001
1. Facts
On May 21, 2001, at approximately 6:30 a.m., the Union
commenced handbilling and picketing at the Elkhart facility
with signs that read, “IUOE Local 150 AFL–CIO on strike
against Nations Rent for unfair labor practices.” Ambulatory
picketing was also conducted by two full-time staff organizers
who followed Respondent’s trucks from the facility to jobsites.
Overmeyer testified that he specifically advised the staff organ-
izers conducting the ambulatory picketing not to follow anyone
home and Overmeyer testified that no employee was followed
home to his knowledge. According to Overmeyer, the reason
for the strike was the disciplinary action that had been taken
against Bickel.
Records of the Elkhart County Public Safety Communica-
tions Center reflect that at 7:47 a.m. on May 21, 2001, a call
was received requesting that a police officer respond to the
Elkhart facility. Officer James Smith, of the Elkhart County’s
Sheriff Office, arrived at the facility at 8:30 a.m. and he ob-
served several pickets carrying signs and standing along the
south edge of Toledo Road, in the vicinity of the east gate.
Officer Smith proceeded to the office where he spoke to Olin-
ger. Olinger wanted to know what the Company’s rights were
with respect to entrances and exits being blocked, and how
close the pickets could be to the Company’s property. Smith
said the pickets were allowed to remain within a 15-foot public
easement measured from the edge of Toledo Road toward the
fence. He also said they were not allowed to block the en-
trances/exits to the Company’s property. After speaking with
Olinger, Smith went outside and spoke to two of the pickets,
neither of whom Smith could identify. According to Smith, he

NATIONS RENT, INC.

189
told them they could not block the entrances or exits to the
facility, and that they had to remain within the public easement.
Smith left the facility at 8:41 a.m.
Robert Barthel is an elderly gentleman who has been retired
from the Union for 17 years, and he identified himself as one of
the pickets to whom Smith spoke on May 21, 2001. Barthel
recalled that Smith told him and another picketer that they had
to stay within the public easement, and that they should stay at
least four feet from the edge of the pavement for their own
safety. Barthel recalled the tone of the conversation as conge-
nial. On May 22, 2001, Overmeyer and Barthel arrived at the
facility at about 6:30 a.m. Both testified they observed ap-
proximately seven large pieces of construction equipment
parked along the outside of the fence and extending into the
public easement. According to Barthel, the location of the
equipment “made it a little difficult” for the pickets to park
their cars, but he managed to park his car at least 6 feet from
the roadway and within the easement. Barthel testified that
notwithstanding the presence of the equipment, the pickets had
50 unobstructed square feet within which to picket. Overmeyer
agreed that the equipment made parking a little more difficult,
but did not in any way hinder picketing activities.
On May 23, 2001, Overmeyer and Barthel again arrived at
about 6:30 a.m. and both observed even more pieces of equip-
ment parked outside the fence than had been parked there the
day before. Photographs taken that day reflect six large pieces
of equipment parked between the west gate and the east gate,
and three large pieces of equipment parked west of the west
gate. Barthel acknowledged that the presence of the equipment
did not prevent the pickets from parking their cars within the
easement, nor did it impair their ability to engage in picketing.
Overmeyer, on the other hand, testified, “that it was much more
difficult for [the pickets] to remain four feet off of the edge of
the roadway . . . it was just dangerous.” According to Barthel, a
large air compressor was running inside the fence and the noise
from the compressor made it almost impossible to engage in
conversation.
That same morning, the police communications center re-
ceived a call at 7:12 a.m. requesting that a police officer re-
spond to Respondent’s facility. Officer Smith was again dis-
patched, and when he arrived at 8:05 a.m., he observed the
equipment parked outside the fence. He also observed two
pickets standing along the edge of Toledo Road, in the vicinity
of the east gate, and one or two cars parked within the public
easement. Smith passed through the gate and observed a large
diesel-powered generator operating in the yard area of the facil-
ity, within several feet of the inside of the fence. Smith entered
the office and spoke to Olinger.4 Olinger told him that earlier
that morning the pickets’ cars had been parked between the
easement and the fence, on company property, and that after he
called the police the cars had been moved. Olinger said he sus-
pected the pickets had a scanner set to monitor police commu-
nications, and that by using the scanner they were able to move
their cars to an area within the easement before the police ar-
rived. Smith testified that Olinger told him that pickets were

4 Respondent acknowledged in its brief that it was Olinger to whom
Officer Smith spoke on May 21 and 23, 2001.
following trucks to jobsites, and that they were following indi-
viduals home at night. According to Smith, Olinger “wanted
[him] to look into that or ask [the pickets] about that.” Smith
told Olinger that the generator noise was so loud that he would
not be able to talk to the pickets without shutting it off, and the
generator was shut off.
Smith proceeded to talk to two pickets, neither of whom
Smith was able to identify. Smith testified that he advised them
that a claim was being made that they had moved their cars
from where they had been earlier parked outside the easement,
and he asked them if they had a police scanner. The pickets
denied having a scanner and offered to allow Smith to search
their vehicles, which offer Smith declined. Smith told them that
it was a misdemeanor to possess a police scanner and a jailable
offense. Smith then asked them if they had been following in-
dividuals to job sites and they said they had. He asked them if
they had been following individuals to their homes at night and
they said they had not. Smith left the facility at 8:22 a.m.
Barthel testified that he was one of the pickets to whom
Smith spoke on May 23, 2001. Barthel recalled Smith saying
that someone had made a call to the police claiming that the
pickets had parked their cars on company property, and that
after the call had been made, the cars had been moved. Accord-
ing to Barthel, Smith told him that if he parked his car outside
the easement it would be considered trespassing and Barthel
could be arrested. Smith also said that someone had suggested
that the pickets might have police scanners and that if so, it was
illegal under Indiana law and they could be arrested. Smith
asked if the pickets were following anyone home, and Barthel
said no. According to Barthel, Smith replied that if that hap-
pened, it would be considered stalking and they could be ar-
rested. Barthel described the tone of the conversation as conge-
nial. In his testimony, Barthel acknowledged that he had in fact
moved his car about 30 minutes before Smith arrived that
morning. He claimed to have parked his car within the ease-
ment, but when someone came out to get a piece of equipment,
he moved his vehicle out of the way. After the equipment was
moved he parked his car back in the same spot.
The pickets left Respondent’s facility at 4:30 p.m. on May
23, 2001. Overmeyer stayed at the facility until 5:45 p.m., and
shortly before he left, he observed several employees come out
of the facility and move the equipment back inside the fence.
He also observed a straight truck pulling into the facility loaded
with scaffolding.
On May 24, 2001, Overmeyer arrived at the facility at 5:30
a.m. He observed that scaffolding had been erected across the
entire length of the facility on Toledo Road, with the exception
of the two gates. The scaffolding was approximately 7 feet high
and 6 feet wide, and it was positioned 3 feet from the roadway.
Yellow caution tape was strung along the edge of the scaffold-
ing closest to Toledo Road. The distance from the fence to the
scaffolding was wide enough for a car to drive through. Photo-
graphs taken that day show that the public easement was almost
entirely blocked by the scaffolding. At first Overmeyer testified
there was no place for the pickets to park, but he later admitted
that there was a gas station 300 yards east of the facility which
had available parking space. Regardless of parking space, how-
ever, Overview testified that in his view it would have been too

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

190
dangerous for pickets to patrol the three feet of the public
easement that remained unobstructed. He sent the pickets
home, and no further picketing was conducted.
Following May 24, 2001, Overmeyer drove past the facility
on a daily basis except Sundays. He observed that the scaffold-
ing remained in place until June 13, 2001, when it was taken
down. At no time did he observe anyone utilizing the scaffold-
ing. Nor did he observe equipment parked outside the fence
after May 24, 2001. Bickel similarly testified that from Decem-
ber 10, 2001, when he returned to work, up until several weeks
before the hearing in this case, he never again observed large
pieces of equipment parked outside the fence.
At the end of January 2002, the Union engaged in handbill-
ing at Respondent’s facility and erected a 20-foot tall inflatable
rat. According to Green, the handbillers stood outside the 15-
foot easement, “clearly” on company property. Despite the
encroachment, the police were not called and there was no in-
terference with the Union’s activities.
2. Analysis
a. Respondent’s physical interference with picketing
The evidence establishes that on May 22, 2001, Respondent
parked seven pieces of heavy machinery outside the fence sur-
rounding its facility, in the area where the Union had com-
menced picketing the day before. Respondent did not present
any evidence to support a business justification for this action.
The following day, May 23, 2001, Respondent parked nine
pieces of equipment in the same area, again without business
justification. By the morning of May 24, 2001, Respondent had
erected scaffolding that almost completely blocked the 15-foot
easement running in front of Respondent’s property, and that
scaffolding remained in place until June 13, 2001. Contrary to
Respondent’s assertion in its brief, no evidence was adduced
that there was a business justification for erecting the scaffold-
ing. Thus, in a series of incremental steps commencing on May
22, 2001, Respondent’s interfered with and ultimately com-
pletely prevented the Union from picketing. The issue is
whether Respondent’s interest in that strip of property justified
its actions.
In situations involving a purported conflict between the ex-
ercise of rights guaranteed by Section 7 of the Act and private
property rights, an employer charged with a denial of union
access to its property must meet a threshold burden of estab-
lishing that it had, at the time it expelled the union representa-
tives, a property interest that entitled it to exclude individuals
from the property. If it fails to do so, there is no actual conflict
between private property rights and Section 7 rights, and the
employer’s actions will be found violative of Section 8(a)(1) of
the Act. Wild Oats Community Markets, 336 NLRB 179
(2001), and cases cited. In determining the character of an em-
ployer’s property interest, the Board examines relevant record
evidence.
In this case, there is no evidence as to who actually owns the
15-foot easement. The only evidence as to who had the right to
occupy the easement was Officer Smith’s interpretation that the
15-foot strip was a public easement that the union representa-
tives had a right to occupy. In the absence of evidence to the
contrary, Respondent has failed to show that it possessed an
exclusive property interest in the 15-foot strip. Respondent
therefore had no right to interfere with or prevent the Union’s
picketing on that property. By placing pieces of heavy equip-
ment within the 15-foot easement on May 22 and 23, and by
erecting and maintaining scaffolding on the 15-foot easement
from May 24 to June 13, 2001, Respondent interfered with the
Section 7 rights of employees in violation of Section 8(a)(1) of
the Act.
b. Police involvement
Police Officer Smith credibly testified that on the morning of
May 23, 2001, Olinger reported to him that he believed the
pickets were in possession of an illegal police scanner, and
Smith in turn told the pickets they risked being arrested for
such an offense. By failing to call Olinger as a witness, Re-
spondent failed to establish an objective basis for Olinger’s
claim. By attempting to cause the arrest of the pickets, Respon-
dent interfered with employees Section 7 rights in violation of
Section 8(a)(1) of the Act.
Olinger next told Smith that the pickets had parked their cars
outside the easement and had trespassed on company property.
Again, Respondent offered no evidence to support this allega-
tion. Barthel’s uncontradicted testimony was that he had mo-
mentarily moved his car that morning from the easement onto
Respondent’s property in response to Respondent’s moving one
of the pieces of equipment it had parked outside the fence, an
action that was itself unlawful. As soon as the piece of equip-
ment was moved, Barthel moved his car back onto the ease-
ment. By attempting to have Police Officer Smith take action
against the pickets for trespass when there is no evidence that a
trespass had occurred, Respondent violated Section 8(a)(1) of
the Act.
Finally, by asking Officer Smith to question the pickets
about the ambulatory picketing they were conducting, and
about allegedly following individuals home at night, Respon-
dent further violated Section 8(a)(1) of the Act.
J. Affirmative Defense of Bankruptcy
In its answer, Respondent avers that these proceedings
should be held in abeyance because Respondent filed a Chapter
11 petition on December 17, 2001. It is well settled that the
institution of bankruptcy proceedings does not deprive the
Board of jurisdiction or authority to entertain and process an
unfair labor practice case to its final disposition. Board pro-
ceedings fall within 11 U.S.C. 362(b)(4) and (5), the exception
to the automatic stay provision for proceedings by a govern-
mental unit to enforce its police or regulatory powers. Isratex,
Inc., 316 NLRB 135 (1995).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and has
engaged in unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Since July 2000, Respondent has violated Section 8(a)(1)
of the Act by maintaining in effect an unlawful no-
solicitation/no-distribution rule in the employee handbook.

NATIONS RENT, INC.

191
4. On August 8, 2000, Respondent, by Olinger, violated
Section 8(a)(1) of the Act by coercively interrogating an em-
ployee about his union activities.
5. On August 8, 2000, Respondent, by Olinger, violated
Section 8(a)(1) of the Act by prohibiting an employee from
engaging in solicitation of other employees during nonwortime.
6. On August 8, 2000, Respondent, by Olinger, violated
Section 8(a)(1) of the Act by threatening to close the business if
employees selected the Union as their collective-bargaining
representative.
7. On August 8, 2000, Respondent, by Bontrager, violated
Section 8(a)(1) of the Act by telling employees that they would
be kept apart, that they were not allowed to speak with another,
that they were not allowed to talk about the Union, and that
their activities would be monitored.
8. On September 6, 2000, Respondent, by Olinger, violated
Section 8(a)(1) of the Act by telling an employee he could not
wear a union button while working.
9. On September 26, 2000, Respondent violated Section
8(a)(1) and (3) of the Act by discharging Jerry Bickel because
of his union activities.
10. On April 26, 2001, Respondent violated Section 8(a)(1)
and (3) of the Act by issuing a written discipline to Jerry Bickel
because of his union activities.
11. On May 19, 2001, Respondent violated Section 8(a)(1)
and (3) of the Act by discharging Jerry Bickel because of his
union activities and because he engaged in a lawful strike.
12. From May 22, 2001, to June 13, 2001, Respondent vio-
lated Section 8(a)(1) by interfering with the right of employees
to engage in picketing by attempting to cause employees en-
gaged in picketing to be arrested, by requesting the police to
question employees about their picketing activities, and by
physically blocking the area where picketing was taking place.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
It is not disputed that Jerry Bickel was reinstated and made
whole following his first discharge on September 26, 2000, and
the Board, in its Decision and Order Remanding dated July 29,
2003, determined that Bickel was properly reinstated and prop-
erly made whole following his second discharge on May 19,
2001. I therefore do not include in the remedy an order to rein-
state Bickel or to make him whole.
[Recommended Order omitted from publication.]