Sunbelt Rentals, Inc.

National Labor Relations Board - Administrative Judge Opinions

May 13, 2020

18-CA-236643 (N.L.R.B. May. 13, 2020)

JD–19–20
Franksville, WI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SUNBELT RENTALS, INC.
and Cases 18-CA-236643
18-CA-238989
18-CA-247528
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 139, AFL-CIO
Tyler J. Wiese, Esq., for the General Counsel
Patricia J. Hill, Esq. (Smith, Gambrell & Russell, LLP),
Jacksonville, FL, for the Respondent
Patrick N. Ryan, Esq. (Baum, Sigman, Auerbach & Neuman, Ltd.),
Chicago, IL, for the Charging Party
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Milwaukee,
Wisconsin on December 16-18, 2019 and February 18-19, 2020 . Based on charges filed by The
International Union of Operating Engineers Local 139, AFL-CIO (the Charging Party or Union).
The amended complaint alleges that Sunbelt Rentals, Inc. (the Company): (1) violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act)1 by failing and refusing to bargain
collectively and in good faith with the Union as the exclusive bargaining representatives of its
Franksville, Wisconsin facility’s bargaining unit employees over a 16-month period in 2018-
2019: (2) violated Section 8(a)(1) of the Act by engaging in various coercive actions intended to
undermine employee support for the Union during the aforementioned period; (3) violated
Section 8(a)(3) and (4) of the Act on August 8, 20192 by permanently laying off employees Kyle
McKellips and Allan Romanowski, eliminating the bargaining unit representing mechanics and
drivers represented by the Union at its Franksville facility through the transfer of their work to
non-union facilities owned by the Company, and assigning their work non-unit employees; and
(4) violated Section 8(a)(1) by coercively interrogating employees in connection with their
testimony in this case. The Company denies the allegations and asserts that the decision to lay
off the employees and eliminate the bargaining unit was premised solely on legitimate business
considerations.
1 29 U.S.C. §§ 142-159.
2 All dates are in 2019 unless otherwise indicated.
JD–19–20
2
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Company and Union, I make the
following
5
FINDINGS OF FACT
I. JURISDICTION
The Company, a North Carolina corporation engaged in the business of renting and selling 10
construction equipment, has a facility in Franksville, Wisconsin, where it annually purchases and
receives goods valued in excess of $50,000 from points outside the State of Wisconsin. The
Company admits, and I find, that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning
of Section 2(5) of the Act.15
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations
20
The Company’s operations includes facilities throughout the United States that rent, sell
and service construction equipment to homeowners and customers in the construction industry
through retail outlets, which are referred to as profit centers (PC).
Each PC employs salespeople, mechanics who repair and maintain equipment, and drivers 25
who deliver rented equipment. The PCs are part of the General Tool (GT) Division, which is divided
into regions. Region 9 covers North Dakota, South Dakota, Iowa, Minnesota, Wisconsin, Illinois,
and Michigan. GT operations in Wisconsin are divided into geographic regions covered by six PCs.
The Franksville PC, also referred to as PC 776, is located in Racine County in southeastern
Wisconsin. Walk-in customers have traditionally accounted for more than 80 percent of the 30
Franksville PC’s business.
Each PC is managed by a PC Manager. During the relevant time period, the Franksville
PCMs were Katie Torgerson, Bryan Anderson and Robert Rivera. They reported to Robert Bogardus
III, the Wisconsin District Manager. Bogardus reported to Jayson Mayfield, the Regional Vice 35
President for Region 9.
Each PC also had a Service Manager. Christopher Pender was Service Manager at the
Franksville PC from July 2, 2018 until November 11, 2019. Prior to August 2019, as the shop
supervisor, his duties included processing and cleaning returned equipment, purchasing and 40
ordering parts, assigning job duties on a daily basis, dealing with warranty repairs, outside
vendors, and training and assisting mechanics service and repair equipment. He supervised shop
mechanics Mariano Rivera and Albert Romanowski, road mechanic Ryan McKellips and drivers
Jamie Smith and Troy Schuls.
45
Gary Stamm, an Equipment Rental Specialist, supervised the Franksville PC’s equipment
deliveries by McKellips, Romanowski, Mariano Rivera, and outside sales representatives Tyler
JD–19–20
3
Sadowske and Ryan Marifke. Prior to August 2019, Stamm, as well as Anderson, assisted the
mechanics on occasion by washing, hauling and delivering equipment.3
Prior to May 1, 2018, the Franksville PC also used contractors to repair certain equipment
that was beyond the skill set of its mechanics or deliver and equipment. Moreover, outside 5
trucking companies were hired whenever any of the aforementioned employees were not
available to deliver equipment.4 After May 2018, the Franksville PC’s expenditures for outside
hauling services increased from approximately $75,000 to $100,000 annually to $15,000 to
$20,000 per month.5
10
Rebel Blake Strohmeyer is the Regional Human Resources Manager for Region 9. She
reports to Vicky Gibson, the Territory Human Resources Manager.
B. The Company’s Relationship with the Union
15
The Union, headquartered in Pewaukee, Wisconsin, represents members throughout
Wisconsin. Organizer Michael Ervin coordinated the organizing and negotiations at the Franksville
PC. On February 12, 2018, Ervin and another Union representative visited that facility, met with
Torgerson and delivered a copy of a representation petition covering a bargaining unit consisting of
the drivers and mechanics at the facility.6 20
After the Union representatives left, Torgerson called Bogardus. Bogardus told Torgerson
that he would get back to her after discussing the matter with Mayfield and the Human Resources
department. Torgerson also emailed the petition to Bogardus. Bogardus emailed it to Mayfield
shortly thereafter, stating, “[t]hought you had better see this prior to my doing anything. Jason, 25
this is not the HR item I messaged you about this morning.” Gibson and Strohmeyer were
copied on the email. Gibson replied a few hours later about the potential formation of a
bargaining unit at the Franksville PC: “FYI – this is our first in Wisconsin.”7
After February 12, 2018, Torgerson spoke with Bogardus on a daily basis. He routinely 30
asked her whether the organizing activity was causing a disruption, specifically, whether employees
were congregating for that purpose or doing their jobs.8 Within a week thereafter, Bogardus began
visiting the facility almost daily. His frequent presence at the Franksville PC was in stark
contrast to the periodic nature of his past visits to that store. While there, Bogardus angrily and
3 The Union never complained during negotiations that Stamm, Pender or Anderson took away work
hours from bargaining unit members. (Tr. 848, 1027, 1065-67, 1097, 1157-59, 1167-68).
4 The Union also did not complain during negotiations about the use of outside haulers to perform
bargaining unit work. (Tr. 995, 1067, 1133).
5 The increased use of trucking companies likely increased due to Smith’s unavailability for overtime
deliveries and then his termination on July 1. (Tr. 756-57, 1067, 1087.)
6 GC Exh. 2.
7 GC Exh. 56.
8 Bogardus had a selective memory throughout much of his testimony and was not credible as to the
disputed issues. In this instance, his denial that he was unaware as to how Torgerson got the information
and or followed up with her about employee support for the Union was inconsistent with his emails
documenting his proactive approach to determine and respond to such activity. (Tr. 867-69.)
JD–19–20
4
loudly warned Torgerson and employees on more than five occasions that the Company would
close the store if the Union organizing campaign succeeded. Within two or three weeks
thereafter and just before the representation election, Torgerson asked Bogardus if she was going
to be fired. He said that the Union was ‘not helping [her] cause.”9
5
On February 23, 2018, Bogardus emailed Hill, Mayfield and Black that Torgerson
“called to share that current rumor out of the shop is that there are five for the union and two for
us. I'm a little suspect of that but thought it better to give a heads up than to be surprised.”10
On February 26, 2018, Bogardus updated the same group that “the Racine event is 10
beginning to spill over” and that a driver noted that competitors were paying higher hourly
wages. He also noted that, “in Racine it is the drivers, Richter and [Jamie] Smith, that are
driving the organizing initiative.”11 Later that afternoon, Bogardus reported that Stamm
informed him that the Union organizers were “pushing their benefits package, pension and health
care and better wages as the promises to the bargaining unit as what they will deliver. As for me 15
I am taking this as a failure to communicate on my part that the team we have worked with since
coming to Wisconsin a year ago will believe union propaganda purveyors over us.”12
On March 4, 2018, two days before the representation election, Bogardus conducted a
mandatory meeting for Franksville PC employees in the breakroom. A free breakfast was 20
provided. During the approximate 15-minute long meeting, Bogardus expressed his negative
view of unions and discussed the ramifications of the election. He told the employees that he
had handled unions before and was going to protect them from the Union because it was just
interested in collecting dues. He concluded with a warning that if the Union won he would close
the Franksville PC and terminate its employees.1325
At the representation election on March 6, 2018, a majority of the eligible employees
voted in favor of union representation. On March 13, 2018, the Regional Director certified the
9 This finding is based on Torgerson’s credible and unrefuted testimony. (Tr. 803-06.)
10 GC Exh. 61.
11 Bogardus denied interrogating or otherwise instructing Torgerson or any other any employee to
inform him about the union activities or sympathies of other employees, insisting that “[t]he guys
voluntarily told me. I did not ask.” When asked about the source of his information, he vaguely referred
to “others within the organization” or drivers at other facilities throughout Wisconsin. In response to
Hill’s leading question, he then denied instructing employees on any occasions to report employees’
union activities. Given his acknowledged aversity to unionization at the Franksville PC, I find that those
conversations were initiated by Bogardus or resulted from his previous requests for information about
employees’ union activities at all Wisconsin PCs. (GC Exh. 62; Tr. 873-74, 914-15.)
12 GC Exh. 63.
13 This finding is based on the credible and spontaneous testimony of former mechanic Ramon
Gutierrez. Gutierrez, terminated on June 10, 2019 for a rules violation, had no grudge towards Company
management: “They were good people. It's just they don't like the union and for the record, I still like
Sunbelt. It's a good company. It's just the new management that came in after Katie, they weren't there to
manage us. They were there to regulate the union.” (Tr. 778-79, 790-91.)
JD–19–20
5
Union as the exclusive bargaining representative of the following bargaining unit of Company
employees within the meaning of Section 9(b) of the Act:
All full-time and regular part-time mechanics, drivers, and foremen, employed by
the Employer at profit center 776 in Franksville, Wisconsin, excluding all other 5
employees, clerical staff, salespeople, managers, guards, and supervisors, as defined in
the Act.14
On March 9, 2018, Bogardus updated the same group on information shared with him
about the Union activities of several employees.15 Based on that information, Bogardus “had a 10
problem with” the fact that employees were discussing the organizing campaign during work
time and using Company-issued cellular telephones.16 Bogardus also reported later that day that
Union supporters at the Franksville PC were also soliciting employees in other Wisconsin PCs:
The drivers from Racine, Smith and Schuls, have “called a number of our drivers in other 15
PC's in the district informing them that by bringing the union in they can expect: $36 to
$38 per hour two year vesting into the retirement program of the union cheaper and better
healthcare better control over whether they have to work overtime, additional people, i.e.
yard associates where there are currently none we have also been informed the fine
fellows from 139 are telling the members of the Racine bargaining unit there will be an 20
agreement in place within 90 days or 150 will strike the Chicago area PC's. Pat [Hill],
the best I can tell from the driver being approached in Green Bay is that the fine fellows
in Racine are using their personal phones but calling our drivers on the Sunbelt phones
during work hours.
25
A short while later, Bogardus reported that he was working with the Company’s GPS and
cellular telephone sections to monitor union activity at the Franksville PC and all Upper Midwest
drivers. He noted that his GPS contact would “keep the request quiet and get us what we need”
and his cellular telephone section contact provided similar assistance when the Union attempted
to organize another facility the previous year.30
Later that night, Mayfield, realizing the potential ramifications of union certification at
the Franksville PC, directed Bogardus to engage with employees at all of the Wisconsin PCs:
I ask that you spend time engaging the employees at this PC, starting Monday, as well as 35
setting-up a benefits show at each of the PC's in the District over the next several weeks.
14 GC Exh. 2.
15 GC Exh. 64.
16 Bogardus denied that he sought to make himself and other PC managers “more available and
approachable . . . because of the union organizing campaign at Franksville.” However, given his
adversity to the organizing effort, his vague explanation “that we needed to be closer to our teams” was
not credible. Moreover, he conceded that the closer attention was spurred by the organizing activity: “I
wouldn't say that it didn't have anything to do with it. It's just something that we needed to make sure we
were making ourselves available as possible . . . [And that was triggered by the union vote at
Franksville?] . . . I’d say in part, yes, sir.” (Tr. 877-81.)
JD–19–20
6
It is important that everyone understands the full benefits package we offer, and more
importantly we care. 17
Bogardus’s outreach started with Franksville PC management. It was around this time
that Pender remarked to Smith that the Union was never going get in.18 5
Bogardus’ outreach resulted in at least one report of union activity from another PC. On
May 14, 2018, the Green Bay PC’s manager emailed Bogardus that there had been “union talk”
between one of her drivers and a PC 776 driver. She was “embarrassed” and “apologize[d] for
the debacle,” and would investigate before I call [the PC manager or district manager] on this 10
issue again.” After Bogardus asked for the details, the Green Bay PC manager reported:
My driver came and said (to 776 driver) hey must be nice to be union and have a yard
guy loading your truck. He said yeah, you are the only store with a yard guy. My yard
guy Bret got the equipment to the truck and told the driver he would be better off loading 15
it himself because Bret is newer. The way it was presented to me was the driver told my
guy to load because he was union.
Shortly thereafter, Bogardus forwarded that information to Strohmeyer: “FYI. Guess I'll
have to press for more details when conversing with my [PC managers].”19 20
C. Changes to the Franksville PC after Union Certification
Also within a week after the Union’s certification as the labor representative of its
employees, Mayfield and Bogardus met to discuss changes to the management and operation of the 25
Franksville PC. Bogardus, who had been “ready to close the store” since the Union organizers
“showed up,” proposed to terminate the bargaining unit employees at that facility.20
The Company’s next step was to terminate Torgerson as the Franksville PC’s manager.
Torgerson was not immediately informed of the decision but learned of it after making an approved 30
offer of employment for a mechanic’s position. That applicant had called her after receiving a
telephone call from Strohmeyer informing him that the job offer had been rescinded. Torgerson
called Strohmeyer and Bogardus for an explanation. Strohmeyer explained that the offer was
rescinded because Mayfield did not approve the hire. Bogardus told her that he misunderstood
Mayfield to say “yes” when he actually said “no.” He also said that he would come and explain 35
it to her because of changes planned for the store.
17 GC Exh. 65.
18 Smith’s testimony was very credible, spontaneous and devoid of any indications of bias towards a
company that terminated him on July 1, 2019 after he failed to take a safety quiz. (Tr. 759-60, 1258.)
Pender’s terse denial in response to leading questions that he made any of the alleged coercive statements
did not credibly refute those allegations. (Tr. 1154-55.)
19 GC Exh, 67.
20 Mayfield did not deny Bogardus’ version of their of this discussion: “Given what we were
seeing” [about the Union coming in,” Mayfield and Bogardus “had that conversation a week or so after
the election.” (Tr. 719-20.)
JD–19–20
7
At the subsequent meeting with Bogardus and Strohmeyer on March 27, 2018, Torgerson
was dismissed. Bogardus based the discharge on inventory shortages “as well as the union
vote.” The next day, Bogardus notified Hill of Torgerson’s termination and informed her that he
would serve as the Franksville PC’s acting manager “for the foreseeable future.”215
In addition to Torgerson’s discharge, employees also felt Bogardus’ wrath over the
representation election. Within the several weeks after the election, Bogardus called Gutierrez
into a meeting. Pender was also present. Bogardus showed Gutierrez a written discipline that he
was to be issued. However, he pulled it back, showed him pictures of machines and said 10
Gutierrez would not be disciplined. Bogardus referred to his action as a “freebee” and asked
Gutierrez why he wanted to be in the Union. Gutierrez replied that he wanted a pension.22
In June 2018, Bogardus also implemented operational changes after he installed
Anderson as the Franksville PC manager. Bogardus instructed him, “based on what was going 15
on with the negotiations and the perception of where we were,” to “pull down” and start
transferring large equipment to other Wisconsin PCs.23
D. The Bargaining Sessions
20
On March 29, 2018, the Union requested that the Company commence bargaining and
proposed the following dates: April 9, 16, 17 and 19, 2018.24 On April 3, 2018, Hill replied to
Ervin that the Company was “busy with the end of the fiscal year’s activities and is not available
on the dates that you proposed. However, [the Company] is available on May 22, 2018. Please
let me know at your earliest convenience if May 22, 2018 works with your calendar.”2525
Once negotiations began, the Union’s bargaining team usually consisted of Ervin,26
Business Agent Marsolek, District A Manager Greg West, and Financial Secretary Stephen
Buffalo. Ervin and West served as the primary spokespeople for the Union and took notes.27
21 Torgerson, whose credible version of these events was not disputed, conceded that the Franksville
PC also experienced inventory shortages the year before. (Tr. 801-08, 812-16; GC Exh. 66.)
22 Gutierrez’ credible and detailed testimony regarding this incident was undisputed. (Tr. 779-80.)
23 The assertion that the “pull down” was the result of Atwell’s plan was not credible, first, because
no evidence of such a plan was offered in evidence. Additionally, Anderson conceded that Bogardus was
motivated to make the move by “the negotiations and where we were at the time.” In fact, at one point,
Mayfield told Anderson to stop transferring the large equipment. (Tr. 923, 1030-31, 1038, 1081.)
24 GC Exh. 3.
25 GC Exh. 4.
26 The Company’s April 3, 2020 motion to strike portions of Ervin’s prehearing affidavit is denied. It
is Ervin’s testimony, as refreshed, corroborated and otherwise unrefuted, that was received into the
record, not his affidavit. Although sources used to refresh recollection are usually presented in the form
of the witness’ prior statement, they can come in virtually any form, including records kept by others or
even random documents.
27 The general accuracy of the Union’s bargaining notes is undisputed. (Tr. 29-41, 55-56, 287-88,
297, 949-51; GC Exh. 5(a) at 1-5, 6(a), 15.)
JD–19–20
8
The Company’s negotiating team consisted of labor counsel Patricia Hill, Mayfield,28 Bogardus
and Anderson.29 Hill served as the Company’s primary negotiator. Mayfield was the
Company’s primary decision maker but delegated authority to Bogardus when absent. Company
proposals were drafted and presented by Hill.
5
All of the parties’ bargaining sessions took place at the Franksville PC. Nearly every
negotiation session started with a safety moment, which is required at any Company meetings
attended by three or more employees. The Union never objected to the safety moments.
1. Bargaining Session 1: May 22, 201810
The first bargaining session started at 8:00 a.m. on May 22, 2018. At the outset, Ervin
proposed “Negotiating Committee Ground Rules.” They included proposals to set the next
meeting date at the beginning of each meeting, limit caucus breaks to approximately 20 minutes,
have negotiating sessions last between two and three hours, have the parties “decide all language 15
proposals before discussing wages,” preclude the introduction of new issues after the second
session unless mutually agreed upon, and make all agreements tentative until a final agreement
was reached.30 Hill initially noted that the proposed ground rules contained the wrong name of
the employer. She then rejected the proposal on the ground that every negotiation was different.
Hill also rejected the Union’s proposal to meet at a neutral location.31 As for scheduling, Hill 20
said that the Company’s negotiators were too busy to meet again before June 26, 2018.
The Union next tendered its initial noneconomic proposals that Ervin and Marsolek
modeled after Company contracts with labor organizations in Michigan.32 Hill said that the
Company needed time to go through those proposals and tendered its own versions. With 25
respect to caucusing, Hill suggested that the Union negotiators convene in their vehicles since
there was no additional space at the facility. Buffalo responded that the parties should meet at
neutral locations in the future. Hill replied that the Franksville PC was satisfactory and the
Company would only agree to meet there. The Company negotiators did, however, agree to
caucus in a nearby office and left the Union negotiators to caucus in the negotiating room. 30
28 Over the previous two years, Mayfield negotiated over 60 contracts with Operating Engineers,
Locals 18, 324, 150 and 139, including new contracts in Findlay, Ohio with Local 18 and Kalamazoo,
Michigan with Local 324.
29 Anderson vaguely testified that the Union was often unprepared for negotiations and its
negotiators’ notes did not match or they forgot their notebooks. That testimony was not corroborated by
credible evidence. (Tr. 1044-45).
30 GC Exh. 5(a), 15.
31 Since the Company wanted the Union’s proposals in writing, it insisted on holding negotiations at
the Franksville PC where it had access to a computer and printer. In contrast, the Union’ headquarters
was more than 30 miles away. On the other hand, Anderson was often diverted to store situations that
arose. (Tr. 370, 919.)
32 The Company alleges delay attributable to the Union’s use of the Company’s contracts with
Michigan and Illinois locals as templates for its initial noneconomic proposals. (Tr. 30, 167.) However,
the assertion that the comprehensive proposal was counterproductive or wasted time lacked credence
since it otherwise tracked the terms that the Company entered into with other locals for similar work.
JD–19–20
9
The Union representatives then requested that the parties schedule future bargaining
sessions for either the week of June 11 or June 18, 2018. Hill replied that the Company’s
negotiators were too busy to meet again until June 26, 2018. The Union agreed to that date.
5
The Company then took several caucuses to review the Union’s proposal and prepare a
counterproposal. After about an hour, Hill presented the Company’s initial proposal consisting
of noneconomic items, including rules relating to investigations and the employee handbook.33
She then then told the Union negotiators that it would take some time to review the Union’s
proposal and suggested that the parties conclude negotiations for the day. The Union agreed and 10
negotiations ended at about 9:30 a.m. The total amount of meeting time was about 90 minutes.
2. Bargaining Session 2: June 26, 2018
The June 26, 2018 session started at 10:00 a.m. Hill started by requesting that the 15
Company present a safety moment. Anderson then proceeded to discuss the driving hazards
presented by wandering deer – a problem that arises in the fall. While the presentation, which
lasted five minutes, was completely unrelated to bargaining, the Union did not object.
Buffalo then asked Hill to reconsider the Union’s request to meet at neutral locations. 20
Hill reiterated that the Company would not agree to meet anywhere else. Ervin then asked to
schedule consecutive weeks of bargaining and back to back days since Hill was traveling from
Florida. Hill replied that the Company’s representatives were too busy to meet at such a pace.
She proposed to schedule meetings for July 30 and August 30, 2018. The Union accepted.
25
After discussion of the procedural issues, the Company verbally presented noneconomic
proposals. The Union, however, insisted on them in writing. After a caucus called by the Union,
the Company’s negotiators took a long caucus to enable them to put their proposals in writing.
When they returned, Hill presented a set of unnumbered items, including pay periods,
management rights and bulletin boards.34 The parties spent the remainder of the session going 30
back and forth on these items. Bargaining concluded at 1:30 pm.35
On July 26, 2018, Hill cancelled the July 30, 2018 session because the Company’s
negotiating team would be attending the funeral of a relative of another Wisconsin PC employee.
Ultimately, however, no one from the negotiation team attended the funeral or visitation.3635
33 The documents were received in evidence with the understanding that handwritten notes were
subsequently added by Ervin while the parties were caucusing. (GC Exh. 7(a).)
34 GC Exh. 7(b).
35 GC Exh. 5(b).
36 Bogardus’ explanation – the need to manage PC 789 that day because all of its employees went to
attend the funeral – is undisputed. (GC Exh. 8, 26; Tr. 720-23, 729-31.)
JD–19–20
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3. Bargaining Session 3: August 8, 2018
The parties subsequently agreed to meet again on August 8, 2018. That session began at
8:00 a.m. All of the usual participants were present, except for Ervin, who was replaced by
Business Manager Terrance McGowan. After the Company’s safety moment presentation, the 5
parties confirmed previously reached tentative agreements. They then discussed the Union’s
written proposals for paid time off (PTO) and Family Medical Leave Act (FMLA) issues.37
After further discussions, the Union caucused at 10:25 a.m. in order to consider the
Company’s position regarding its proposals. The Union drafted modified proposals by 10:55 10
a.m. and asked the Company to return to the table. The Company representatives, however, said
they were busy and bargaining did not resume until 11:13 a.m.
At that point, the parties addressed the FMLA and PTO issues. That discussion led to
negotiations regarding the Company’s disciplinary policy. Towards the conclusion of the 15
session, the parties tentatively agreed to PTO language and a broad management rights provision
that gave the Company the sole and exclusive right to:
. . . hire, promote, demote, layoff, assign, transfer, suspend, discharge and discipline
employees for just cause; select and determine the number of its employees, including 20
the number assigned to any particular work or classification, increase or decrease the
number of employees; direct and schedule the workforce and all operations; determine
the scope of work of the operation; determine and schedule hours of operation;
determine the job classifications and assign work in accordance with management's
needs; determine and schedule when overtime shall be worked; install or remove 25
equipment; determine the methods, procedures, materials and operations to be utilize or
to discontinue their performance by employees; determine the work duties of
employees; promulgate, post and enforce reasonable rules and regulations governing the
conduct of acts of employees during working hours; require duties other than those
normally assigned to be performed; select supervisory employees; train and cross-train 30
employees; discontinue or reorganize or combine any department or operation with any
consequent reduction or other change in the workforce; determine reasonable work
pace, work performance levels and standards of performance and production of the
employees and in all respects carry out the ordinary and customary functions of
management, all without hindrance or interference by the Union except as specifically 35
altered or modified by the express terms of this Agreement.38
Otherwise, the Company presented no written proposals during this session. The parties
agreed to meet again on August 30, 2018 and the meeting concluded around noon.39
40
37 GC Exh. 6(b).
38 R. Exh. 7 at 3.
39 GC Exh. 5(c).
JD–19–20
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4. Bargaining Session 4: August 30, 2018
The August 30, 2018 session started at 8:00 a.m. After the Company’s safety moment,
the Union renewed its request that the parties meet more than once per month and proposed an
early September date for the next session. The Company negotiators, however, were too busy to 5
meet that soon. Instead, Hill proposed, and the parties agreed, to meet again on September 27
and October 23, 2018.
Hill verbally presented the Company’s proposal relating to grievance procedures, but
West insisted that the Union submit its proposal in writing. The Company negotiators then 10
caucused at 8:32 a.m. for that purpose. They returned at 10:12 a.m. with a written proposal.40
Bargaining briefly resumed until the Company declared another caucus at 10:25 a.m. The
Company returned to the bargaining table at 12:10 p.m. without any further written proposals.
The parties met for about 20 additional minutes and negotiations ended at 12:30 pm.41
15
5. Bargaining Session 5: September 27, 2018
The September 27, 2018 session was supposed to start at 8:00 a.m. but Hill said that
Mayfield and they needed to wait for him.42 The Company finally agreed to start at 8:40 a.m.
when Mayfield did not appear. After the Company’s safety moment presentation, Hill submitted 20
the Company’s proposal.43 The parties made significant progress in negotiations and the
Company caucused from 9:50 a.m. to 11:07 a.m. After discussing their differences on several
items and tentatively agreeing to others, the session concluded at 11:45 a.m.44
6. Bargaining Session 6: October 23, 201825
The October 23, 2018 session, scheduled to start at 8:00 a.m., was also delayed after Hill
said that Mayfield would be late. At 8:18 a.m., Mayfield still had not appeared and Hill agreed
to start the session. After the Company’s safety moment presentation, Ervin handed out a
revised summary of open issues.45 At 8:21 a.m., the Company declared a caucus. At 8:48 a.m., 30
Ervin told the Company it was ready to resume negotiations. A short while later, Ervin and West
observed Bogardus and Anderson speaking on their cellphones. The Company finally returned
to the table at 9:37 a.m. with Hill explaining that the Franksville PC was short-staffed that day
and Mayfield just arrived.
35
The parties spent the remainder of the morning session discussing various noneconomic
items and exchanging new proposals.46 The Company called a caucus from 10:12 a.m. to 10:59
40 GC Exh. 7(c).
41 GC Exh. 5(d).
42 Contrary to what Hill told the Union’s negotiators that morning, Mayfield conceded that he told her
prior to the meeting that he would be unable to attend. (Tr. 59-76, 314, 1018.)
43 GC Exh. 7(d).
44 GC Exh. 5(e).
45 GC Exh. 6(d).
46 GC Exh. 6(c), 7(e).
JD–19–20
12
a.m. The parties then reconvened and negotiated until 11:09 a.m., when the Union caucused to
review several Company proposals. When the Union returned at 11:25 a.m., it tentatively agreed
to several Company proposals.
Before the parties concluded negotiations at 11:36 a.m., the Union asked to schedule 5
future bargaining sessions. The Union negotiators explained that they were frustrated by the
Company’s “blanket discussions” and the length of the Company’s caucuses.47
7. Bargaining Session 7: December 10, 2018
10
The next bargaining session was scheduled for November 13, 2018. On November 8,
2018, however, Bogardus emailed Hill that “[w]e have a number of things that have come up in
the past few days that have pushed our fleet planning for next year back further than we had
planned. We have to get this complete by the end of next week. We need to postpone the
meeting for next week until after Thanksgiving due to the increased activity.”48 Hill notified 15
Ervin of the need to reschedule the November 13 meeting to December 10, 2018. In the email
discussion that followed, Ervin tried to get Hill to agree to sessions on December 10 and 18,
2018. However, Hill agreed only to meet again on December 10, 2018 because Bogardus and
Mayfield both refused to meet more than once per month.49
20
The December 10, 2018 session started at 8:00 a.m. After the Company’s safety moment
presentation, Ervin requested again that the Company agree to meet more frequently and
proposed that the next session be scheduled for early January 2019. Mayfield and Bogardus,
however, were unavailable most of that month and the Union agreed to the Company’s proposed
meeting dates for January 28 and February 21.25
After the procedural issues were resolved, the Union presented a written proposal for
dues check-off50 and verbally proposed pension and health insurance coverages.51 The Company
flatly rejected these proposals and the Union asked the Company for a comprehensive
counterproposal. The Company declined to do that and, instead, provided an updated proposal30
addressing other items, including premium pay, boot allowances and 401(k) provisions.52
The Union called a caucus from 8:49 a.m. until 9:59 a.m. The parties resumed
negotiations and made progress on a number of items. The Company called a caucus at 10:46
a.m. After 12:30 p.m., the Company still had not returned. Ervin went to the Company 35
negotiators, who were still caucusing, and told them that the Union negotiators were leaving.53
47 GC Exh. 5(f).
48 GC Exh. 40.
49 GC Exh. 9, 70-71.
50 GC Exh. 6(e).
51 Commenting on these proposals in an email to Hill on December 30, 2018, Bogardus referred to the
proposal from “NGU 139,” which meant “No Good Union.” (GC Exh. 72: Tr. 891.)
52 GC Exh. 7(f).
53 GC Exh. 5(g).
JD–19–20
13
On January 7, Ervin reiterated the Union’s December 10, 2018 request for a
comprehensive counterproposal. On January 16, Hill sent Ervin the Company’s proposed draft
collective-bargaining agreement (CBA) noting the tentatively agreed to items, as well as the
open items. The articles did not, however, match those in the Union’s May 22, 2018 proposal.
Nor was there a table of contents because Hill insisted that it be the last item completed.54 5
8. Bargaining Session 8: February 8, 2019
On January 17, Hill notified Ervin that the January 28 session would have to be
rescheduled due to Bogardus’ involvement in a court proceeding scheduled for that day. The 10
parties eventually rescheduled the bargaining session to February 8.55
The February 8 bargaining session was scheduled to start at the usual time, 8:00 a.m., but
did not start until 9:34 a.m. due to Mayfield’s late arrival. While waiting, the Union
representatives complained that the room was cold and the Company provided a portable heater. 15
After the Company opened the session with its usual safety moment presentation, the Union
presented its first wage proposal.56 However, Hill replied that the Company was not going to get
into economics. The Union then proposed again its health, pension and dues check-off proposals.
At 9:40 a.m., the Company caucused. At 10:25 a.m., its team had yet not returned to the 20
table and Ervin asked them to reconvene. At that point, Ervin and West observed several
Company negotiators socializing with a vendor. Bargaining finally resumed at 10:32 a.m. When
the Company returned, the Union sought to schedule additional sessions on consecutive weeks.
However, the Company only agreed to meet again on February 21 and March 21. The Union
then requested counterproposals but the Company insisted on discussing its previously emailed 25
comprehensive proposal.57 After noting the confusion over the varying formats of the proposed
articles in the parties’ draft proposals, Ervin agreed to work with the Company’s version.
After further negotiations, the Company declared a caucus at 11:09 a.m. During that
caucus saw Bogardus on his computer for several minutes. When the Company returned at 30
12:21 p.m., West requested that the Company counter the Union’s comprehensive wage
proposal. Hill stated that the parties were not yet at that point and declined to go into any
economic provisions. Ervin then reinforced that the Union put everything on the table. Since
there was no further movement on the Company’s part, the Union suggested and the Company
agreed to end to the session at 12:50 p.m.58 35
54 GC Exh. 7(g).
55 Hill’s actions regarding rescheduling consistently demonstrated the Company’s intention to drag
out negotiations. In this case, she learned of the scheduling conflict on January 10, 2019 but waited a
week before informing the Union. Then on January 23, Bogardus informed her that he no longer had a
conflict on January 28. Hill did not share that development with the Union. (GC Exh. 10, 53, 73.)
56 GC Exh, 6(f).
57 GC Exh. 7(g).
58 GC Exh. 5(h).
JD–19–20
14
In an effort to move negotiations forward, on February 19, Ervin asked Hill for a copy of
the Company’s proposals before the February 21 meeting. Hill replied that she “could not get
the updated CBA done.”59
9. Bargaining Session 9: February 21, 20195
After the Company opened with its safety moment presentation, Hill provided the
Company’s written dues counterproposal to have employees pay “dues, fees and assessments
directly to the Union.60 McGowan commented that the Company and other locals had dues
checkoff agreements with employers in Michigan and Illinois.61 Hill replied that the Company 10
would not to that. The Union then caucused at 8:53 a.m. to review the proposal. At 9:05 a.m.,
the bargaining resumed. The parties proceeded to disagree over which items had been
tentatively agreed to and Hill expressed confusion as to which version they were working with.
Ervin reminded her that the Union agreed to base negotiations on the Company’s version of the
proposals. At 9:17 a.m., the Company took a caucus. 15
The Company was still caucusing at 11:16 a.m. when the Union negotiators decided to
break for lunch. When they returned at 12:40 p.m., the Company negotiators were not at the
table. Bargaining resumed shortly thereafter but the Company took a caucus at 12:56 p.m. after
Ervin requested the Company’s wage counterproposal. When the session reconvened at 1:35 20
p.m., the parties negotiated over the Company’s proposals. At 1:58 p.m., the Union countered
the proposals and renewed its request for a wage proposal from the Company. At 1:59 p.m., the
Company caucused. At that point, the Union asked to schedule the next session before March
21. Hill declined because she was too busy to meet before then. When Hill returned to the table
at 2:29 p.m., she reiterated that she would not respond to the Union’s wage proposals and ended 25
the session because Mayfield had to leave. The Union objected.
At that point, frustrated by the Company’s positions on scheduling and its conduct at the
bargaining table, the Union decided to seek Board intervention. On February 26, the Union filed
unfair labor practice charges alleging:30
Since on or about August 29, 2019, the employer has violated Sections 8(a)(1) and (5) of
the Act by engaging in surface bargaining or otherwise bargaining in bad faith, by, inter
alia, canceling bargaining sessions, refusing to schedule more than one session a month
(9 sessions in 12 months), being unprepared for bargaining, refusing to meet at a location 35
other than the Franksville shop, failing to provide adequate heat in the bargaining room
or operational restrooms, showing up late for scheduled bargaining sessions, taking
extended caucuses (due to lack of preparation and/or discussion of personal matters),
suggesting that the Union bargaining team caucus in their vehicles, allowing management
59 GC Exh. 11.
60 Mayfield testified that the Company processes its payroll internally. (Tr. 1019; GC Exh. 7(h).).
61 The Company asserts that McGowan delayed one or two unspecified sessions by claiming that the
Union could help the Company acquire business with Foxconn, a large project in Wisconsin. According
to Bogardus, the Company was not interested in such a business opportunity. (Tr. 920-21; 972-73).
JD–19–20
15
bargaining team members to perform work in the shop when they should have been
bargaining, and refusing to provide counter-proposals on key economic terms, including
health insurance and wages.62
10. Bargaining Session 10: March 21, 20195
The March 21 session began as scheduled at 8:30 a.m. Ervin did not attend this session.
The Union opened discussions by accusing the Company of stalling tactics, insisting on a wage
counterproposal and reiterating that its health and pension proposals were still on the table. The
Company denied the stalling allegations, conceded that the Company did not yet have a wage 10
proposal, and would not agree to changes to its existing 401k investment and health insurance benefit
plans. At 9:09 a.m., the Company caucused and returned at 10:25 a.m.
After bargaining resumed, the Union attempted again to negotiate over wages. The Company
only countered with a premium pay formula that included a 1.25 hourly wage multiplier that it 15
created exclusively for the Franksville PC. The Union again requested that the Company discuss the
Union’s wage rate proposal. The Company, however, insisted that it would not discuss economics.
The Union briefly caucused and returned at 10:52 a.m. to present a comprehensive economic
proposal. At 11:00 a.m., the Company caucused and returned just before the parties agreed to break
for lunch from 11:45 a.m. to 12:50 p.m. At that point, the Company announced that upon returning 20
from lunch it would only be able to bargain until 2:00 p.m. because Mayfield had to leave by then.
When bargaining resumed at 1:02 p.m., the parties to schedule the next session for April
30. The Company then proposed a revised proposal relating, once again, to wage rate formulas,
but not actual wage rates. The Union caucused at 1:18 p.m. During this caucus, West observed 25
Anderson and Bogardus working the retail counter at the facility. West asked the Company’s
negotiators to reconvene at 1:45 p.m., but Hill told West they were delayed because Bogardus
was busy working the retail counter. When the Company returned to the table, there was just
enough time for the Union to present an updated verbal counterproposal relating to overtime and
holiday pay. Shortly thereafter, the Company concluded the session at 2:00 p.m.6330
E. Management’s Involvement in the Decertification Campaign
As the bargaining dragged on in to 2019, the Company initiated a campaign to undermine
and eliminate the bargaining unit. On March 21, with Anderson’s assistance, Mariano Rivera 35
filed a petition to decertify the Union as the exclusive collective bargaining representative of the
Company’s employees. Mariano Rivera delivered the petition to Anderson on March 22.
Anderson posted copies in the break room and by the time clock and shop door leading to the
store.64 In accordance with the petition, a representation hearing was scheduled for April 1.65
62 GC Exh. 1(a).
63 GC Exh. 5(j).
64 R. Exh. 39.
65 Anderson did not dispute Mariano Rivera’s testimony that he explained the decertification process,
helped Rivera fill out the form, including his name and position, and the date and time for the
decertification election. (GC Exh. 38; Tr. 106, 1186, 1195-96.)
JD–19–20
16
However, due to the pending unfair labor practice charges, the Regional Director blocked the
decertification election until the charges were investigated.66 After Hill informed the rest of the
Company’s bargaining team of that development on March 27, Bogardus replied by asking,”[i]f
nothing changes between now and Monday when would you be available to discuss a planning
session for approaches to shedding ourselves of this pariah called 139?”67 5
The Company’s plan to shed itself of the Union accelerated. On March 28, Anderson
updated the team on his efforts to surveil union activities. In response to Mayfield’s inquiry as to
whether employees attended a Union meeting, he replied: “It is my understanding that there
was a lot of people there from the 139, as well their attorney, along with our bargaining 10
members. I am still fishing for more information. I found this out at 5:15 last night.”68
In late March, Anderson approached Gutierrez at his work area told him and vaguely
mentioned that “the paper was up on the wall and by the doors in the breakroom.” Gutierrez did
not know what Anderson was referring to until he saw the decertification petition on the wall. 15
Anderson followed up again in early April by approaching Gutierrez again in his work area.
Gutierrez had previously discussed the decertification effort from Mariano Rivera, who told him
that he needed three votes to get a decertification vote. Anderson then told Gutierrez that if
anybody talked to him about anything related to the petition, especially Romanowski, that he
should report it to him because he was not going to put up with it, “zero tolerance.” Gutierrez 20
responded jokingly that if Romanowski told him anything about it, he would he “would sock
him,” and he and Anderson laughed. Shortly thereafter, Anderson told Gutierrez as he returned
from lunch that “his buddies are outside.” Gutierrez, a California native, denied that he had any
“buddies” in Wisconsin. Anderson replied that he was referring to the Union representatives
outside the shop. Gutierrez reiterated that they were not “buddies” and the conversation ended.6925
On April 1, in the course of discussing the Union’s annoyance about a long closed door
meeting that Pender had with McKellips in his office earlier that day, Black told the negotiating
team, “I really want to go after the union.” I worry about the fear and intimidation tactics they
may use.”70 On April 3, Bogardus reinforced the negotiating team’s aversion to the Union and 30
its tactics based on information received from Robert Rivera:
Dan Marsolek, Local 139 goon, followed one of our outside haulers yesterday from the
Racine store to the FedEx distribution facility near the airport. Marsolek followed the
truck into the facility and informed the FedEx personnel that if they continued to use 35
66 The petition was subsequently withdrawn by the Company.
67 GC Exh. 78.
68 GC Exh. 79.
69 I credit Gutierrez’ detailed testimony over Anderson’s general denial he discussed the
decertification with Gutierrez, including asking whether his name was on the decertification petition or if
his signature was forged on the decertification petition. (Tr. 771-78, 1059-63.) Gutierrez, terminated on
June 10 over a safety violation, was a very credible witness, conceding that employees were worn down
by the bargaining process: “We were tired of having to go through the [bargaining] process. It was taking
forever.” (Tr. 765, 770-77, 895; GC Exh. 80 at 3-4.)
70 GC Exh. 80.
JD–19–20
17
Sunbelt there would be a picket set up by Local 139. The FedEx personnel on site relayed
the above information to Lyons Electric, one of FedEx's primary electric contractors, who
shared this information with Tito this morning.71
Union suspicions about Pender’s comments to employees were confirmed around that 5
time when Smith overheard him telling employees in this office that it would be futile to support
the Union because “the union was never going to get in and it was never going to happen.”72
On April 3, the Union filed a charge alleging unlawful assistance with the decertification
petition and various coercive statements by Company supervisors: 10
Since on or about April 1, 2019, the employer has violated Sections 8(a)(l), (3) and (4) of
the Act by interrogating bargaining unit employees regarding the decertification petition
filed on or about March 21, 2019 (Case l 9-RD-23821) l, and to otherwise discourage
bargaining unit employees from exercising their rights under the Act. The Employer, 15
through its supervisors and other agents, has sought to coerce bargaining unit employees
into retracting statements given to the Region in relation to the decertification petition
and interrogated bargaining unit employees regarding their support for Local 139, all of
which is done to interfere with, restrain or coerce bargaining unit employees in the
exercise of their Section 7 rights to support and be represented by Local 139.20
The Employer has further violated the Act by, since October 5, 2018, interfering with,
restraining and coercing bargaining unit employees from exercising their Section 7 rights
and to discourage support for Local 139 through interrogation, threats and/or statements
made by the Employer's shop supervisor to multiple bargaining unit employees, including 25
statements that: the Union is not going to happen and will not be allowed into the shop.
F. Bargaining After Efforts to Decertify the Union
1. Bargaining Session 11: April 30, 201930
The April 30 negotiations were scheduled to start at 8:30 a.m. but did not begin until 9:04
a.m. because Mayfield arrived late. After the Company gave its safety moment presentation, the
Union again tendered its wage, health, pension and dues checkoff proposals. West requested
counterproposals but the Company declined. McGowan said the Company was not bargaining in 35
good faith but Hill disagreed. McGowan did not know why they would not agree to dues check-
off even though they agreed to it elsewhere. At that point, the Company’s team left the table.
The Company’s team was gone from 9:15 to 9:30 a.m.. When they returned, the Union
proposed a lower wage rate and reduced the proposed pension contribution from four dollars to 40
two dollars an hour. The Company representatives then left to caucus at 9:33 a.m. When they
returned at 10:28 a.m., they proposed increasing premium pay from $1.35 to $1.40 but again
71 GC Exh. 81.
72 I credited Smith’s credible and detailed testimony over Pender’s vague, global denial that he made
the comments to several unidentified mechanics during early spring of 2019. (Tr. 758-60, 1154-55.)
JD–19–20
18
omitted any wage rate proposal and rejected any dues checkoff procedure. The Union then
caucused at 10:33 a.m.
When bargaining resumed at 10:43 a.m., the Union changed its proposal for overtime pay
after 8 hours to 10 hours per day and withdrew its training fund proposal. After presenting these 5
proposals, Ervin proposed to meet again the following week but Hill said the Company
negotiators were too busy to meet again until June 5. The Union reluctantly agreed. The
Company then caucused at 10:48 a.m.
When the Company representatives returned at 11:09 a.m. they proposed increasing 10
premium pay from $1.35 to $1.40 per hour, but limiting overtime pay only after an employee
exceeded 40 hours per week. The Company still refused to propose any basic wage rates, again
rejected a dues checkoff, and refused to modify its current pension and health benefits.
At 11:11 a.m., the Company representatives left to caucus. When the Company returned 15
to the table at 11:20 a.m., the Union presented an updated counterproposal. At 11:27 a.m., the
Union proposed to caucus during the lunch break. The Company declined and ended the session
at that point because Mayfield had a lot of telephone calls to make.73
2. Bargaining Session 12: June 5, 201920
The June 5 session started on time at 12:00 p.m. The Company opened with a proposal
to limit daily overtime to employee shifts exceeding 18 hours. West then asked Hill about the
Company’s overtime policies at its Illinois facilities. Hill declined, noting that its Illinois
facilities were not relevant to the negotiations. Hill then rejected the Union’s dues checkoff, 25
pension and health insurance proposals before verbally offering a proposed wage rate. She
proposed to freeze wage rates in the first year with a reopener in the second and third years.
When the Union asked for the basis of that proposal, Hill replied that it was due to an “economic
downturn.” She then stated that the next meeting would be on July 9 and declared a caucus at
12:09 pm, after only nine minutes of bargaining.30
When bargaining resumed at 12:38 p.m., the Union tendered a comprehensive sign-off
proposal which indicated the items that had been tentatively agreed to and those that were still
open.74 Ervin asked the Company negotiators to compare the draft page by page to the
Company’s January 2019 draft. Hill initially declined but relented after Ervin insisted that 35
bargaining would not progress. The Company then took a caucus at 12:43 p.m.
When bargaining resumed at 1:10 p.m., Hill questioned the accuracy of the table of
contents in the sign-off proposal. At the Union’s insistence, the parties reviewed the accuracy of
the listed articles. The Union took a caucus at 1:16 p.m.40
When bargaining resumed at 1:21 p.m., the partied discussed again the accuracy of the
table of contents. At 1:27 p.m., Mayfield called another caucus. When the Company returned at
73 GC Exh. 5(k).
74 GC Exh. 6(g).
JD–19–20
19
1:47 p.m., Hill asserted that the table of contents omitted articles that were agreed to by the
parties and that the article numbers were inaccurate. West requested that Hill identify the
missing articles in writing but Hill declined. Before concluding negotiations at 2:23 p.m., the
parties finally agreed to a CBA table of contents. Hill requested and agreed to email Hill a Word
pdf version of the Union’s proposed CBA, including the agreed upon table of contents, prior to 5
the next session on July 9.75
3. Bargaining Session 13: July 9, 2019
The July 9 session started on time at 9:00 a.m. with a Company safety moment 10
presentation. Mayfield had not yet arrived. Hill then requested a copy of the sign-off document
that the Union handed the Company on June 5. Ervin did not send the document prior to this
session as promised because West told him not to forward proposals prior to bargaining sessions.
He did, however, send it to Hill later that afternoon.76
15
The negotiations then turned adversarial after the Union brought up the termination of
Jamie Smith, a unit employee and member of the Union’s negotiating team. At 9:12 a.m., the
Company negotiators left the table. At 9:37 a.m., Mayfield arrived but bargaining did not
resume until 10:09 a.m. When they reconvened, however, the parties concluded the session and
scheduled the next one for August 8.7720
On July 16, the Union filed charges that since on or about June 10 the Company violated
Sections 8(a)(3), (4), (5) and (1) for its retaliatory discharges of Smith and Gutierrez because
they engaged in union activities and filed charges, and without providing the Union with notice
and affording it an opportunity to bargain over their discharges. 25
G. The Company’s Decision to Reorganize the Franksville PC
On or before August 5, Mayfield decided to pull the plug on the unionization of the
Franksville PC’s workforce. Without documenting his rationale for the move, Mayfield 30
informed Gibson that the Franksville PC would be reorganized into a “will-call” store that
carried only small equipment for pick up by customers. Accordingly, the remaining unit
employees would be laid off since the store would no longer need mechanics and drivers.
At the time Mayfield made the decision to reorganize the Franksville PC, that store’s 35
total revenue had been increasing over the corresponding period in 2018. In the ordinary course,
Mayfield reviewed and relied upon total revenue information reflected in the Consolidated
75 GC Exh. 5(l), 12; R. Exh. 8, 40.
76 Ervin’s testimony that he forgot to email the requested documents was not credible since he
conceded that he deliberately failed to send them at West’s instruction. Nevertheless, the Company
negotiators confirmed that it accurately reflected the tentative agreements. (GC Exhs. 6(g), 13 and 58; Tr.
122-25, 163, 926-27.)
77 GC Exh. 5(m).
JD–19–20
20
Income Statement Information for each facility. That financial data for fiscal year 201978 for the
Franksville PC showed a decrease in total revenue in May 2019 of $86,767 from the same period
in May. However, June (+$21,084) and July (+$52,782) revealed a trend of increased revenue
over the same periods in 2018 that Mayfield would have been aware of at the time he made the
decision to reorganize the Franksville PC on August 5.79 5
H. The Elimination of the Bargaining Unit
On August 5, Gibson emailed Strohmeyer copies of letters for review. She noted the
need for “severance agreements for all 3 to provide at time of layoff.”80 On August 7, Mayfield 10
informed Buffalo that the Company would “be using the scheduled negotiating session on
August 8, 2019 for bargaining the impact for a reorganization at Profit Center 776.”81
1. Effects Bargaining on August 8, 2019
15
The August 8 session started once again with a safety moment and the Union raising its
concern that Mario Rivera threatened to shoot Union representatives. The Company said it was
unaware of the threats but would refer the matter to its Human Resources department. After
expressing those concerns, the Union asked for the Company’s response to its proposed sign-off
document. Hill then referred the Union to Mayfield’s August 7 letter. 20
After the Union requested written notice of the layoffs and an explanation, Hill deferred
to Mayfield. He explained that the shop was being converted to a will-call location and was not
closing. It would service customer pick-ups of only small tools and no deliveries. Mayfield did
not, however, know when the transition would be complete. As such, the Company no longer 25
needed the services of the two remaining bargaining union mechanics, Romanowski and
McKellips. Mario Rivera previously transferred to another facility and Schuls had been
terminated in May 2019 after driving a Company vehicle with a suspended license.
After the Union took a brief caucus, the Union did not challenge the decision to 30
reorganize and eliminate the bargaining unit but focused on the effects of the layoffs. Buffalo
requested information relating to the Company’s staffing numbers for its other facilities in
Wisconsin and Northern Illinois. He also requested information relating to severance pay owed
78 The Company’s fiscal year runs from May 1 to April 30. Mayfield testified that the budget for FY
2020 would have been created in February or March. (Tr. 673.)
79 Mayfield’s testimony that the layoffs were due to a 31 percent decrease in business caused by
bannering activity was discredited by the financial data contained in the Company’s Consolidated Income
Statement. That document, which Mayfield conceded reviewing prior to August 5, was the only business
record produced documenting the financial condition of the Franksville PC. (GC Exh. 30; Tr. 633-34,
668-73, 989-91, 1015.) Moreover, I did not credit the self-serving charts generated for the General
Counsel during the investigation allegedly showing losses caused by the bannering activities. (R. Exh. 9;
GC Exh. 28-29.) The only underlying documents provided in support of the charts amount to
approximately two percent of the alleged losses of the Franksville PC. (Tr. 702, 710).
80 GC Exh. 31
81 GC Exh. 17.
JD–19–20
21
the laid-off employees for accrued vacation time and paid time off. Ervin asked if the laid-off
employees could be transferred to available positions at other Company facilities that he saw
online. Mayfield replied that they did not have the skills to be transferred to another shop. Hill
then told the Union that the employees would be laid off later that day. The Union then asked to
schedule the next session for the week of August 19. The Company asked to meet again on 5
August 16 and the Union agreed. The session ended at 9:56 a.m.82
2. The Employee Layoffs
After the August 8 session, the Company informed Romanowski about the reorganization 10
and terminated him.83 McKellips was not in that day but was informed by Anderson, Bogardus
and Strohmeyer during his next workday on August 10. Both employees were told that their
services were no longer needed because the facility would only be renting small tools for
customer pick-ups and would not deliver equipment. They were also informed that they were
eligible for rehire and free to apply for any openings that they believed they were qualified for. 15
After being told that he would be eligible for rehire, McKellips said he was willing to transfer to
another store. However, he was informed that he would have to go through the standard
procedure of applying for openings elsewhere.
3. Further Effects Bargaining: August 16, 201920
After several hours of negotiations on August 16, the parties agreed on a severance
package based on the employees years of service, accrued vacation leave and paid time off:
1. Hiring preference for comparable positions at any Sunbelt profit center for the next 25
two years;
2. Severance pay in an amount equal to two years wages at their most recent rate of pay
(52 weeks x 40 hours x hourly rate);
3. Company paid health insurance for two years from the date of layoff;
4. Employer paid 401(k) contributions equal to the amount of all 401(k) contributions 30
made by or on behalf of each employee for the past two years; and
5. Confirmation that the employees may, at their discretion, leave their 401(k) accounts
open with Sunbelt, roll them over to another 401(k) or IRA, or take a distribution
consistent with the plan documents.84
35
Romanowski and McKellips each signed an “Individual Release Agreement” for
severance payment in exchange for releases and waivers from liability for any claims, including
discrimination on the basis of “any union activities in violation of local, state or federal laws,
constitutions, regulations, ordinances or executive orders,” as well as any violations of the Act.85
40
82 GC Exh. 5(n).
83 GC Exh. 32.
84 GC Exh. 5(o), 18.
85 GC Exh. 19-20.
JD–19–20
22
4. The Franksville PC’s Operations After the Reorganization
After the Franksville PC’s two remaining bargaining unit members were terminated, the
Company continued to operate as an equipment rental facility. Most equipment weighing more
than 10,000 pounds was transferred from the Franksville PC to other Wisconsin PCs. Of the 5
equipment and machinery that continued to be available at the Franksville PC, only a backhoe
loader and rough terrain forklift weighed in excess of 10,000 pounds. The backhoe had been
purchased and awaited pick up by a customer. The forklift, however, had been rented from and
returned to the Franksville PC.86
10
In any event, the Franksville PC continued to carry some large equipment, including
large front loaders, excavators, boom lifts, backhoes, skid loaders and forklifts.87 It also
continued to make the rental of large equipment at the Franksville PC available on its website.88
Much of that equipment, however, was too large and/or heavy to be picked up by homeowners.89
15
Moreover, the Franksville PC did not eliminate its other operations after the
reorganization. Periodic monitoring by the Union and interaction with the remaining employees
at the facility established that business as usual continued after the reorganization and was still
ongoing as of November. Specifically, during the period of time between August 19 and
November, employees at the facility continued to perform the maintenance work in and outside 20
the shop on various pieces of equipment, machinery and vehicles, including trucks, lifts, steer
loaders, woodchippers, compressors, tillers and utility vehicles.90 The repair of certain
equipment, such as hydraulic hoses and cylinders, were contracted out to another company
before and after the reorganization. However, since the bargaining unit mechanics had been
eliminated, Pender, the service manager, was required to perform a significant amount of the 25
maintenance work, which included work on new equipment brought into the shop after the
reorganization. While Pender previously helped to wash equipment and trained the mechanics,
his new workload resulted in him working significantly longer hours. Indeed, the increased
workload took a toll on Pender because he could not get all of the work done within his
30
86 I credit the detailed and unrefuted testimony of the Company’s witnesses regarding the weight of
the machinery, as well as the explanation that they were either being transferred to other facilities or
awaited pickup by customers. (Tr. 992-94, 1101, 1104-15, 1127; GC Exh. 25 at 25, 29; R. Exh. 6.)
87 This finding is based on the credible testimony and photographic evidence of large equipment taken
and observed by Ervin on August 19, and Marsolek on October 24 and 28, and November 14. (GC Exh.
16; GC Exh. 21 at 7-12; GC Exh. 25 at 25-32, 34-45; Tr. 536-44.)
88 Ervin credibly testified that he searched the Company’s website in early December and it indicated
that large equipment similar to that also available at the Waukesha PC was still available to rent at the
Franksville PC. (Tr. 141–44; GC Exh. 22.)
89 Marsolek credibly testified that, based on his years of experience as a crane loader, that the large
equipment was too large and heavy for a typical homeowner to pick up and drop off, further evidencing
the PC’s need to continue providing deliveries. (Tr. 509–10, 536–37.)
90 This finding is based on the undisputed testimony of Marsolek and McKellips. (GC Exh. 25 at 1–4,
6, 14, 16-20, 24, 26-28, 33-35; Tr. 520–41, 825-37.)
JD–19–20
23
customary eight or ten hour day. As a result, he transferred to a mechanic’s position at the
Waukesha PC in December.91
Second, after the reorganization and still continuing as of most recently as November 14,
2019, the Company continued hauling small and large equipment and towing operations at the 5
Franksville PC on some occasions – all work that had been performed by bargaining unit driver
Jamie Smith before he was terminated.92 The vehicles used included trucks, pickup trucks, semi-
trucks, trailers, a backhoe loader and a rough terrain forklift.93
As a result of the changes, the upward trend that the Company had seen in total revenue 10
in June and July 2019 suddenly reversed to a decrease of $66,808 in total revenue in August
2019 versus August 2018 and a massive decrease of $257,360 in total revenue in September
2019 in comparison to September 2018.94 That significant loss of total monthly revenue after the
reorganization indicated that the shift to carrying mostly smaller equipment at the Franksville PC
certainly did not generate greater profit for that facility.9515
5. The Questioning of Employees Regarding Their Testimony
In preparation for the hearing, Hill met with Pender and Mariano Rivera at their
respective workplaces on February 10, 2020 in preparation for their testimony in this hearing. 20
While preparing Mariano Rivera for his testimony, Hill told him that he did not have to speak
with her and was entitled to hire an attorney to represent him, which he declined. She did not,
however, tell Rivera that his answers to her questions would not affect his job. With regard to
Pender, he was informed by Hill as to the purpose of her questioning and told that his answers
would not affect his job. She did not, however, inform him that his participation was voluntary.9625
30
91 I credited the detailed testimony of McKellips that Pender told him that he was “stressed out” by
the amount of maintenance work he had to perform and left to return to a mechanic position at another
PC. He also told McKellips that he was being replaced by one or two workers. In response to Hill’s
leading question as to whether he transferred due to increased hours, Pender avoided a direct response and
attributed the move to his commute and family. His less than credible characterization of the increased
work as “a little bit” became evident when he was asked to elaborate: “Not a ton more, but there was an
extra bit of work. I lost four mechanics.” (Tr. 826–33, 844-48, 1167-68.)
92 It is not disputed that Anderson delivered and washed equipment, and Pender serviced equipment ,
along with their other duties while at the Franksville PC. (Tr. 848, 1065-67).
93 This finding is based on several credible sources: Ervin’s videotapes of hauling activities on August
9 and 25; Marsolek’s testimony and photographic evidence of vehicles and equipment observed on 10
occasions; and the testimony of Smith and McKellips. (Tr.138-39, 141, 524-34, 539-44, 761-63, 824-25;
GC Exh. 21 at 1-3, 5-6; GC Exh. 23-24; GC Exh. 25 at 5, 7-10, 12-13, 15, 21-23, 30-32, 36-45.)
94 GC Exh. 30.
95 Neither Bogardus nor Mayfield addressed the significance of the June and July increases in total
rental revenue. (Tr. 937-38, 1029-30.)
96 This finding is based on the testimony of Pender and Rivera. (Tr. 1161-65, 1187, 1190-91.)
JD–19–20
24
LEGAL ANALYSIS
I. THE BARGAINING ALLEGATIONS
A. The Company’s Position on Scheduling Meetings5
Section 8(d) of the Act defines the scope of collective bargaining under the Act. The first
provision of this section is the “mutual obligation of the employer and the representative of the
employees to meet at reasonable times.” The Board examines the “totality of the circumstances”
in determining whether a party has refused to meet at reasonable times and is “not limited to an 10
examination of the number of bargaining sessions held.” Garden Ridge Management, Inc., 347
NLRB 131, 132 (2006). In considering a refusal-to-meet allegation, the Board considers, inter
alia, the overall frequency of bargaining sessions, whether the union has requested to meet more
frequently, whether the employer has cancelled bargaining sessions, and any justifications
offered by the employer for its failures to meet. See People Care, Inc., 327 NLRB 814, 825–26 15
(1999); Calex Corp., 322 NLRB 977, 977–78 (1997), enfd. 144 F.3d 904 (6th Cir. 1998); Bryant
& Stratton Business Institute, 321 NLRB 1007, 1042 (1996).
Notwithstanding the Union’s repeated requests to meet more frequently, the Company
agreed to only 13 bargaining sessions during the 15 month period between May 2018 and July20
2019. The Board has generally held that meeting only once a month is unreasonable. See
Garden Ridge Management, Inc., 347 NLRB at 132 (20 bargaining sessions over 11 months
violated Act); Calex Corporation, 322 NLRB at 977 (same for 20 sessions over 15 months).
The Company compounded the impact of the delays by cancelling bargaining sessions on 25
multiple occasions, several of which were not justified. Its cancellation of the July session
allegedly occurred because of a funeral for a manager at another PC but, contrary to Hill’s
representations, none of the bargaining team members attended that event. The November
session was cancelled due to vague “fleet issues.” Finally, Bogardus asked Hill several weeks
before the January session to reschedule it because it conflicted with an adoption proceeding that 30
he had to attend. However, she waited a week before telling the Union of that conflict and
informed the Union 11 days before the January session. Hill then learned five days later that the
adoption proceeding had been rescheduled but never told the Union.
The Company’s explanation for spreading out bargaining sessions was either that Hill 35
had to travel to the sessions from Florida and the rest of its bargaining team was otherwise busy
with operational responsibilities. That defense was legally insufficient. As explained by the
Board in Bryant and Stratton Business Institute, 321 NLRB at 1042, the excuse that the
employer “had a business to run” is not legally sufficient. See also J. H. Rutter- Rex, Inc., 86
NLRB 470 (1949) (insufficient justification for refusing to meet at reasonable times due to 40
respondent’s counsel being a “busy and successful lawyer).
In conclusion, the Company’s refusal to bargain in good faith by failing to make its
bargaining team available on more frequent occasions violated Section 8(a)(5) and (1).
45
JD–19–20
25
B. The Company’s Conditioned Bargaining Over Wages
Section 8(d) of the Act further defines the duty to bargain, as it relates to subjects of
bargaining, as requiring the parties to “confer in good faith with respect to wages, hours, and
other terms and conditions of employment.” As a logical extension of this principle, the Board 5
has held that a party generally violates the Act when it refuses to bargain over certain mandatory
subjects, or (as in this case) delays bargaining over mandatory subjects until the parties reach
agreement on other subjects. John Wanamaker Philadelphia, 279 NLRB 1034, 1034–35 (1986)
(unlawful for employer to refuse “to discuss economic matters until noneconomic matters were
resolved”); Adrian Daily Telegram, 214 NLRB 1103, 1110–12 (1974) (same).10
The Company refused to accept any ground rules for bargaining at the first session. It
then proposed verbally that the parties bargain over the noneconomic issues before tackling the
economic terms. The Union submitted its initial wage, health insurance and pension proposals at
the February 8 session. Despite the Union’s repeated requests, the Company continued a pattern 15
of frustrating the negotiations over the noneconomic issues, which continued after the February 8
session. It refused to discuss these proposals at that session or the next three that followed and it
was not until June 5, after the Region had already announced its merit determination in this
matter, that it tendered a wage counterproposal. Cf. Wyman Gordon Pennsylvania, LLC, 368
NLRB No. 150, slip op. at 4 (2019) (employer’s one-month long refusal to bargain over 20
economics until noneconomic issues were resolved did not violate the Act where parties agreed
to negotiate and made progress on noneconomic items pursuant to ground rules).
Under the circumstances, the Company’s four-month long refusal to bargain over wage,
health insurance and pension terms violated Section 8(a)(5) and (1) of the Act.25
C. The Company Repeatedly Engaged in Surface Bargaining
In determining whether an employer engaged in surface bargaining, one must examine
the totality of the employer’s conduct to determine if it attempted to frustrate or avoid any 30
agreement. Joy Silk Mills, Inc. v. NLRB, 185 F.2d 732, 742 (D.C. Cir. 1950). The Board will
find a refusal to bargain in good faith if it determines that the employer is merely “going through
the motions” of bargaining. Unbelievable, Inc. dba Frontier Hotel & Casino, 318 NLRB
857, 876 (1995). The following are the guidelines that the Board has used to determine whether
a party is refusing to bargain in good faith:35
Although an adamant insistence on a bargaining position is not of itself a refusal to
bargain in good faith … other conduct has been held to be indicative of a lack of good
faith. Such conduct includes delaying tactics, unreasonable bargaining demands,
unilateral changes in mandatory subjects of bargaining, efforts to by- pass the union, 40
failure to designate an agent with sufficient bargaining authority, withdrawal of already
agreed-upon provisions and arbitrary scheduling of meetings. Atlanta Hilton & Tower,
271 NLRB 1600 (1985).
As previously noted, the Company’s intentions were laid bare even before bargaining 45
began as Mayfield and Bogardus discussed closing the Franksville PC facility after the Union
JD–19–20
26
arrived. As bargaining proceeded, the Company began to deplete the Franksville PC’s inventory
by transferring most of its large equipment to other PCs. Around the same time, the Company
helped a unit employee fill out the decertification petition. When that approach failed, the
Company eliminated the bargaining unit.
5
Given the foregoing background, it is no surprise that the bargaining process that the
Company begrudgingly endured was beset by a host of bad faith practices. Its refusal to meet
more frequently than once a month and its delay tactics ensured that the process would drag out
long enough to enable it to undertake alternative measures to rid itself of the bargaining unit. A
stark example of bad faith was the session on September 27, 2018 when Hill delayed the session 10
for 40 minutes while supposedly waiting for Mayfield, who frequently arrived late. Mayfield
previously informed Hill, however, that he would not attend that day, a fact that she never
disclosed to the Union. See Regency Service Carts, 345 NLRB 671, 672–73 (2005) (unlawful
for employer to refuse to meet less than once per month, cancel numerous sessions, routinely
show up late and end sessions early over union objection). 15
The Company’s stalling tactics were also obvious. Throughout many of the sessions they
hindered the progress of negotiations by taking prolonged and unproductive caucuses. On
August 30, 2018, for example, the session lasted from 8:00 a.m. to 12:30 pm. During that time,
the Company’s negotiators took two caucuses lasting more than 90 minutes. The second time, 20
they returned to the table without any new written proposals. On February 21, 2019, they
caucused from 9:15 a.m. until about 1:00 p.m. and again returned without any new proposals. At
the October 23, 2018, February 8 and March 21 sessions, the Company’s negotiators used
chunks of their caucus break to perform work or speak with customers. Such conduct was
clearly calculated to impede the progress of negotiations. Michigan State Employees 25
Association, 364 NLRB No. 65, slip op. at 2, 37–38 (2016) (finding employer’s caucus conduct
“fits . . . the pattern of an employer bargaining without an intent to reach an agreement.”);
Radisson Plaza Minneapolis, 307 NLRB 94, 96 (1992), enfd. 987 F.2d 1376 (8th Cir. 1993).
The Company’s negotiators unlawfully refusal to discuss the Union’s wage, health 30
insurance and pension proposals for over four months. See United Technologies Corp., 296
NLRB 571, 571–72 (1989) (employer’s failure to submit wage proposal as evidence of surface
bargaining). The Board has repeatedly noted that a refusal to consider or respond to a union’s
proposal, without explanation, constitutes strong evidence of surface bargaining. John Ascuaga’s
Nuggett, 298 NLRB 524, 547 (1990), enfd. in pertinent part sub nom., Sparks Nugget v. NLRB, 35
968 F.2d 991 (9th Cir. 1992) (refusal to explain objections to union proposals supported finding
that the employer “was not engaged in a bona fide effort to bargain collectively”).
The Company’s negotiators also refused to consider, without explanation, the Union’s
dues checkoff proposals. That unyielding posture was clearly unlawful in light of the 40
Company’s agreement to dues checkoff provisions in contracts with locals outside of Wisconsin.
CJC Holdings, 320 NLRB 1041, 1042 n.2, 1046–47 (unexplained and firm intransigence on the
topics of dues checkoff is particularly indicative of surface bargaining); Queen Mary Restaurants
Corp., 219 NLRB 776, 777 (1975) (dues checkoffs at other locations).
45
JD–19–20
27
The parties arrived at numerous tentative agreements over the course of bargaining.
However, the Company’s rejection of the Union’s requests to submit written proposals muddled
negotiations at a critical point on June 5 when the Union parties attempted to confirm the
tentative agreements reached. At that session, the Union tendered a written sign-off document
but the Company refused to sign-off on that document as well as any tentative agreements5
reached. The Company then rejected the Union’s request to identify the inaccuracies in the table
of contents. This bad faith approach stymied the bargaining process and brought the progress
reached up to that point to a screeching halt.97 See Schuylkill Metals Corp., 218 NLRB 317, 338
(1975) (refusal to confirm agreements in writing revealed a “predetermination not to reach
agreement on any basis with the union.”); Bethea Baptist Home, 310 NLRB 156, 156 (1993) 10
(relying on employer’s refusal to put alleged tentative agreements in writing in finding overall
surface bargaining).
II. THE SECTION 8(A)(1) VIOLATIONS
15
A. Anderson’s Interrogation of Unit Employees
In determining whether the questioning of an employee about union or other protected
activity constitutes an unlawful interrogation, the Board considers the totality of the
circumstances, including whether the employee is an open and active union supporter, whether 20
there is a history of employer antiunion hostility or discrimination, the nature of the information
sought, the position of the questioner in the company hierarchy, and the place and method of
interrogation. See Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom. HERE
Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
25
The Company’s union animus was prevalent from the moment that Bogardus was
informed that Union representatives visited the Franksville PC in February 2018 and was evident
at the bargaining table prior to the filing of the decertification petition. Anderson, the
Franksville PC’s manager, initially questioned Gutierrez about the decertification petition in late
March. Gutierrez did not know what he was referring to but Anderson still asked Gutierrez to let 30
him know if anyone spoke to him about it.
The Board has held that questioning an employee regarding their knowledge of a
decertification petition can violate the Act. Ernst Home Centers, Inc., 308 NLRB 848, 855
(1992), particularly when the individual is a high-ranking manager and initiates the conversation. 35
In this case, Anderson initiated the conversation and was the Franksville PC’s manager. He
followed up the question about the decertification petition by requesting that Gutierrez report the
activities of other employees back to him. Liquitane Corp., 298 NLRB 292, 293 n. 4 (1990)
(unlawful for supervisor to request employee to report union activities of other employees).
Anderson violated Section 8(a)(1) again in similar fashion in April when he approached 40
97 The Company argues that the Union contributed to the delay when Ervin failed to email Hill the
Word version of the CBA with the tentatively agreed to items prior to the July 9 session. Ervin agreed to
do so on June 5 but West told him that he did not send draft CBAs out prior to sessions. Nevertheless, the
Company’s argument that the omission delayed bargaining is baseless since she left the June 5 session
with a hardcopy of the draft with the tentatively agreed to items noted.
JD–19–20
28
Gutierrez and requested that he inform Anderson about any statements by an employees,
especially Romanowski, relating to the decertification petition.
Anderson did not, however, violate Section 8(a)(1) by alluding to the Union
representatives outside the shop as Gutierrez’ buddies as he returned to his work area from lunch. 5
He reacted to Anderson’s remark by stating that they were not his buddies since he was from
California and had none in Wisconsin. Accordingly, Anderson’s comment was not inherently
coercive since it was not posed as a question. See Advanced Masonry Associates, LLC, 366
NLRB No. 57, fn. 3 (2018) (supervisor’s inquiry not unlawful where reasonable person would
not have been intimidated by the question); NLRB v. Champion Labs., Inc., 99 F.3d 223, 227 10
(7th Cir. 1996) (applicable factors in determining whether inquiry is coercive include the tone,
duration, and purpose of the questioning, whether it is repeated, number of employees involved,
the setting, authority of the supervisor, the question, and whether the employer otherwise showed
hostility to the union). Cf. Park N’ Fly, 349 NLRB 132, 133 (2007) (supervisor told employee
that another named employee reported that the employee spoke with a “union guy”).15
B. Pender’s Statement of Futility
Pender, a supervisor at the time, unlawfully threatened futility of union representation in
the spring of 2019 when he told mechanics in his office that “the union was never going to get in 20
and it was never going to happen.” See Soltech, Inc., 306 NLRB 269, 272 (1992) (employer’s
statement that union “was not coming in” or “would not be a union company” or “would not
have a union in the plant”); New England Health Care Employees Union, District 1199, SEIU,
351 NLRB 1306, 1309 (2007) (employer’s threats that he would spend as much money and do
whatever was necessary to keep the union out); Gravure Packaging, 321 NLRB 1296, 1299 25
(1996), enfd. mem. sub nom. Graphic Packaging Corp., 116 F.3d 941 (D.C. Cir. 1997) (threat
that employer “would do everything in his power to keep the union out).
C. The Johnny’s Poultry Allegations
30
In preparing Mariano Rivera for his testimony, Hill provided certain assurances but did
not tell him that his testimony would not affect his job. In preparing Pender to testify, Hill also
provided certain assurances but did not tell inform him that his participation was voluntary.
While employee interrogations regarding their protected concerted activities are 35
prohibited by Section 8(a)(1), the Board also recognizes that an employer also needs to prepare it
legal defenses. This balancing act of these rights requires that an employer wishing to
interrogate an employee give the employee the following assurances: (1) communicate to the
employee the purpose of the questioning; (2) obtain the employee's participation on a voluntary
basis; and (3) assure the employee that no reprisals will take place. Moreover, the questioning40
must not inquire into union matters outside the scope of the legitimate purpose for which the
questioning is taking place, elicit information concerning an employee's subjective state of mind
or otherwise interfere with the statutory rights of employees. Johnnie's Poultry Co., 146 NLRB
770, 774-75 (1964).
45
JD–19–20
29
The Company’s failure to provide all of these assurances to Mariano Rivera and Pender
violated the Section 8(a)(1) of the Act. See Tschiggfrie Properties, LTD, 365 NLRB No. 34,
slip op. at 1 (2017) (employer violated the Act by failing to state that participation was voluntary
in one instance, and failed to provide assurances against retaliation in another instance),
enforcement denied, 896 F.3d 880 (8th Cir. 2018).5
III. THE ELIMINATION OF THE BARGAINING UNIT
A. The Company’s Reorganization
10
Section 8(a)(3) makes it an unfair labor practice to “discriminate in regarding to hire or
tenure of employment or any term or condition of employment to encourage or discourage
membership in any labor organization.” Section 8(a)(4) of the Act makes it unlawful for an
employer “to discharge or otherwise discriminate against an employee because he has filed
charges or given testimony.” To prove a violation of Sections 8(a)(1), (3) and (4) and (1) of the15
Act, the General Counsel bears an initial burden of establishing that an employee's union or
other protected concerted activity was a motivating factor in the Respondent's adverse
employment action at issue. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983); Tschiggfrie Properties, Ltd., 368 NLRB No. 120, slip op. at 1 20
(2019) (initial burden requires evidence of animus to support finding that a causal relationship
exists between the employee’s protected activity and the employer’s adverse action); Nichols
Aluminum LLC v. NLRB, 797 F.3d 548, 554 (8th Cir. 2015) (the “discriminatory animus toward
[the employee’s] ‘protected conduct was a substantial or motivating factor in’ [the employer’s]
decision to discharge him”). Moreover, such “[p]roof of discriminatory motivation can be based 25
on direct evidence or can be inferred from circumstantial evidence based on the record as a
whole.” Embassy Vacation Resorts, 340 NLRB 846, 848 (2003).
Once there is a showing of discriminatory motivation by proving the employee’s pro-
union activity, the employer’s knowledge of the pro-union activity and animus against the 30
employee’s protected conduct, the burden of persuasion “shift[s] to the employer to demonstrate
that the same action would have taken place even in the absence of the protected conduct.”
Donaldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004).
There is abundant evidence in this case of unlawful motivation. Company was well 35
aware of the fact that bargaining unit employees were engaged in union activity and made its
animus very clear based on the statements of its manager and supervisors: Bogardus’ various
threats and plans to close the Franksville PC; his termination of Torgerson after the Union won
the election; Anderson’s assistance in efforts to decertify the Union and his interrogation of an
employee in connection therewith; Pender’s remarks to unit employees of union futility; 40
Anderson’s depletion of the Franksville PC’s inventory during bargaining; and the Company
persistent bad faith conduct during bargaining.
The Company’s demonstrated animus conclusively establishes that it discriminatorily
eliminated only unit employees at the Franksville PC – even though there were losses at the other 45
Wisconsin PCs allegedly attributable to union activity – and continued the same operations after
JD–19–20
30
the reorganization. Indeed, the Company’s larger concern was the potential spread of
unionization to its other Wisconsin PCs. As Gibson noted in her email warning to Mayfield and
Bogardus: “FYI – this is our first in Wisconsin.” See RAV Truck & Trailer Repairs, Inc., 369
NLRB No. 36, fn. 2 (2020) (employer’s unlawful partial closure of its business “was motivated
by a purpose of chilling the protected union activity of its remaining employees . . . and . . . the 5
Respondent would reasonably have foreseen that this closure would have a chilling effect).
In this case, where the General Counsel made out a strong prima facie case under Wright
Line, the burden shifted to the Company to show that it would have terminated these employees
even in the absence of their union activity. An employer cannot carry its Wright Line burden 10
simply by showing that it had a legitimate reason for the action, but must demonstrate that the
action would have taken place absent the protected conduct. Centre Property Management, 277
NLRB 1376 (1985); Route Betrand Dupont. Inc., 271 NLRB 443 (1984).
The Company failed to meet such a burden. Its alleged 31 percent decrease attributable 15
to bannering was not corroborated by the only Company business record offered – the
consolidated income statement for the Franksville PC. That document actually showed an
increase in total rental revenue in June and July, a financial improvement accomplished with a
reduced staff of mechanics and drivers. Moreover, the Company failed to demonstrate how its
alleged losses would be remedied by the elimination of the three bargaining unit employees at 20
the Franksville PC, especially when it also claimed that the union activity also adversely affected
the other Wisconsin PCs. Under the circumstances, the Company’s elimination of the bargaining
unit violated Section 8(a)(3) and (1).
With respect to the Section 8(a)(4) charge, it is alleged that the initial charges filed on 25
February 26, 2019 and updated charges filed on April 3, 2019 motivated the Company to
continue to engage in the aforementioned bad faith bargaining and coercive behavior before
deciding to eliminate the bargaining unit on August 5, 2019. The Section 8(a)(4) allegations fail,
however, for the very reasons that sustain the Section 8(a)(3) allegations – the Company’s
determination to eliminate the bargaining unit and the related coercive actions were evident long 30
before the first charges were filed. Accordingly, the Section 8(a)(4) allegations are dismissed.
Finally, the Company’s elimination of the bargaining unit also violated Section 8(a)(5)
because it failed to provide notice beforehand and afford it an opportunity to bargain in good
faith before taking that action. In First National Maintenance Corp. v. NLRB, 452 U.S. 666, 35
667, (1981), the Supreme Court, recognizing the needs of an employer for the “unencumbered
decision-making” in its business, held that “bargaining over management decisions that have a
substantial impact on the continued availability of employment should be required only if the
benefit, for labor-management relations and the collective-bargaining process, outweighs the
burden placed on the conduct of the business.” In cases where the employer decides to “shut 40
down part of its business purely for economic reasons” would outweigh the “incremental benefit
that might be gained through the union's participation in making that decision.”
As previously concluded, the Company’s the decision to eliminate the bargaining unit
was not motivated by a legitimate business purpose, but rather, unlawful animus. That alone 45
precluded it from avoiding its duty to bargain under First National Maintenance Corp. v. NLRB,
JD–19–20
31
452 U.S. at 687-88. Central Transport, Inc., 306 NLRB 166, 167 (1992), enfd. in part, 997 F.2d
1180 (7th Cir. 1993) (employers were not exempt from obligation to bargain where decision was
based on antiunion animus); Strawsine Mfg. Co., 280 NLRB 553 (1986) (same).
The Company also failed to meets its obligation to bargain before laying off the unit 5
employees. See Pan American Grain Co., 351 NLRB 1412, 1413 (2007) (layoffs based on
“economic” reasons triggered duty to bargain), enfd. 558 F.3d 22 (1st Cir. 2009); Davis Electric
Wallingford Corp., 318 NLRB 375, 375–76 (1995) (employer owed a duty to union to notify it
beforehand where it was certified as bargaining representative about six weeks prior to the mass
layoff of unit employees). Operational changes which result in the replacement of union 10
employees with non-union employees doing the same work are mandatory subjects of
bargaining. Pan American Grain Co., 351 NLRB at 1413; Power, Inc., 311 NLRB 599, 599
(1993), enfd. 40 F.3d 409 (D.C. Cir. 1994); Torrington Industries, 307 NLRB 809, 811 (1992).
Similarly, changes which involve the replacement of some equipment, resulting in the layoff of
employees, also trigger an obligation to bargain. Geiger Ready-Mix Co., 315 NLRB 1021, 1022–15
23 (1994) (movement of trucks), enfd. in rel. part, 87 F.3d 1363 (D.C. Cir. 1996); Winchell Co.,
315 NLRB 526, 526 n.2 (1994) (addition of computers replacing some unit work), enforced, 74
F.3d 1227 (3d Cir. 1995); Power, Inc., 311 NLRB at 599 (sale of drilling equipment).
The Company argues that the Union never requested to bargain over layoffs, a mandatory 20
subject of bargaining. That obligation on the part of the Union, however, was never triggered
since the Company’s notification of that decision on August 7, 2019 was presented as a final
decision. It did offer to bargain over the effects or impact of that decision and reinforced its final
decision by informing the Union on August 8, 2019 that the bargaining unit employees would be
laid off that day. Davis Electric, 318 NLRB at 376 (union’s duty to request to bargain over a 25
proposed change does not apply where the employer presents its decision as a fait accompli).
CONCLUSIONS OF LAW
1. Sunbelt Rentals, Inc. (the Respondent) is an employer within the meaning of Section 30
2(2), (6) and (7) of the Act.
2. International Union of Engineers Local 139, ALF-CIO (the Union) is a labor
organization within the meaning of Section 2(5) of the Act.
35
3. The Union is, and at all material times was, the exclusive bargaining representative in
the following appropriate unit:
All full-time and regular part-time mechanics, drivers, and foremen employed by the
Respondent at profit center 776 in Franksville, Wisconsin, excluding all other
employees, clerical staff, salespeople, managers, guards, and supervisors, as defined 40
in the Act.
4. The Respondent violated Section 8(a)(1) of the Act by:
(a) Threating employees that it would be futile for them to select the Union as their
bargaining representative.45
JD–19–20
32
(b) Instructing employees to report on the Union activities of other employees.
(c) Interrogating employees about their Union sympathies and activities.
5
(d) Interrogating employees without providing assurances under Johnnie’s Poultry Co., 14
146 NLRB 770, 74–75 (1964), enforcement denied 344 F.2d 617 (8th Cir. 1965).
5. The Respondent violated Section 8(a)(3) and 8(1) of the Act by taking the following
adverse action because its employees formed, joined, and assisted the Union and engaged in 10
concerted activities, and to discourage employees from engaging in these activities:
(a) Permanently laying off its employees Kyle McKellips and Allan Romanowski,
thereby eliminating the bargaining unit at Franksville.
15
(b) Transferring the work of the bargaining unit from its Franksville facility to non-union
facilities owned by Respondent.
(c) Assigning the bargaining unit work to individuals employed at the Franksville
facility who are not in the bargaining unit.20
6. Respondent violated Section 8(a)(5) and (1) of the Act by:
(a) Refusing to meet at reasonable times and locations for bargaining.
25
(b) Insisting that all non-economic items be resolved before bargaining over wages.
(c) Engaging in overall surface bargaining by: (1) refusing to meet more than once per month
for bargaining; (2) refusing to negotiate over wages, health insurance and pension benefits, and
dues check off; (3) engaging in dilatory and delay tactics; and (4) refusing to submit proposals in 30
writing.
(d) Eliminating the bargaining unit at its Franksville PC without providing the Union
notice and an opportunity to bargain over its decision.
35
7. The unfair labor practices described above affect commerce within the meaning of
Section 2(2), 2(6), and 2(7) of the Act.
REMEDY
40
Having found that the Company has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
The Board has held that the standard remedy for the unlawful elimination of a bargaining 45
unit is to “require the employer to restore the operation in question and to reinstate all
JD–19–20
33
discriminatorily terminated employees.” See We Can, Inc., 315 NLRB 170, 174 (1994)
(characterizing restoration of work as the “usual practice” where “an employer has curtailed
operations and discharged employees for unlawful reasons.”); RAV Truck & Trailer Repairs,
Inc., 369 NLRB No. 36 at 1, n.3 (order requiring an employer to restore its operations and
reinstate employees).5
The Company’s violations also warrant an affirmative bargaining schedule, requiring the
parties to meet on a regular basis and the Company to submit progress reports to the Region
every 30 days. The Board has held that such an order is appropriate in circumstances “where the
Respondent has engaged in a series of dilatory tactics in contravention of its duty to bargain in 10
good faith.” See UPS Supply Chain Solutions, Inc., 366 NLRB No. 111, slip op. at 2-4 (2018)
(surface bargaining violations rendered appropriate a bargaining schedule requiring the parties to
meet for at least 24 hours per month, and at least 6 hours per session; Camelot Terrace, 357
NLRB 1934, 1941, 2004–05 (2011) (ordering bargaining schedule where employer limited
number of sessions, cancelled other sessions, shortened sessions that it did attend, and refused to 15
bargain economics); All Seasons Climate Control, Inc., 357 NLRB 718, 718 n. 2 (2011)
(ordering bargaining based, in part, on employer’s encouragement of decertification petition),
enfd. 540 F. App’x 484 (6th Cir. 2013).
Furthermore, the circumstances require that the Company be required to read the attached 20
notice aloud to employees at the Franksville PC and post a copy of the notice at all of its
Wisconsin PCs. See North Memorial Health Care, 364 NLRB No. 61, slip op. at 1 (2016), enfd.
in part, 860 F.3d 639 (8th Cir. 2017) (notice reading is appropriate where high-level managers
have been involved in a pervasive, public pattern of unfair labor practices); Nob Hill General
Stores, Inc., 368 NLRB No. 63, slip op. 1, n.2 (2019) (notice should be posted at any facility 25
where “affected employees perform work”); Planned Building Services, Inc., 347 NLRB 670,
677 (2006) (multi-facility postings warranted where employers engaged in a “clear pattern or
practice of unlawful conduct”).
The Company’s bad faith conduct and dilatory tactics also warrant issuance of a broad 30
cease and desist order. See Hickmott Foods, Inc., 242 NLRB 1357, 1357 (1979) (broad order
warranted where respondent’s "egregious or widespread misconduct” demonstrated “a general
disregard for the employees’ fundamental statutory rights.”); Allied Medical Transport, Inc., 360
NLRB 1264, 1269 n.9 (2014), enfd. 805 F.3d 1000 (11th Cir. 2015) (broad cease and desist
appropriate based on independent violations of Section 8(a)(1) and termination of union 35
supporters shortly after union certification),
Finally, the Company’s persistent bad faith during 15 months of bargaining warrants a
full 12-month extension of the certification year. Mar-Jac Poultry Co., 136 NLRB 785, 786–87
(1962) (extension of the certification year is warranted where employer commits unfair labor 40
practices during the initial certification year).
JD–19–20
34
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended98
ORDER
5
The Respondent, Sunbelt Rentals, Inc., Franksville, Wisconsin, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
10
(a) Threatening employees that forming a union is futile.
(b) Instructing employees to report the union activities of their fellow employees.
(c) Interrogating employees regarding their union and concerted activities.15
(d) Interrogating employees without providing assurances under Johnnie’s
Poultry Co., 146 NLRB 770, 774–75 (1964), enforcement denied, 344 F.2d 617 (8th Cir.
1965).
20
(e) Permanently laying off employees, transferring work, and eliminating bargaining
units because employees choose to engage in union activities.
(f) Permanently laying off employees, transferring work, and eliminating bargaining
units because employees participate in Board investigative processes.25
(g) Refusing to meet at reasonable times and locations for collective bargaining
negotiations.
(h) Conditioning bargaining over wages on the resolution of all other non-economic30
issues.
(i) Refusing to bargain in good faith with the Union.
(j) Unilaterally and without the consent of the Union eliminating the bargaining unit at35
the Franksville facility or otherwise changing terms and conditions of employment for
bargaining unit employees employed at Franksville.
(k) In any other manner interfering with, restraining, or coercing Respondent’s
employees in the exercise of the rights guaranteed them by Section 7 of the Act.40
98 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–19–20
35
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Kyle McKellips and Alan
Romanowski full reinstatement to their former jobs without prejudice to their seniority or
any other privileges previously enjoyed.5
(b) Within 14 days from the date of this Order, make Kyle McKellips and Alan
Romanowski whole for any loss of earnings and other benefits suffered as a result of the
discrimination against them.
10
(c) Compensate Kyle McKellips and Allan Romanowski for the adverse tax
consequences, if any, of receiving a lump-sum backpay award, and file with the Regional
Director for Region 18, within 21 days of the date the amount of backpay is fixed, either by
agreement or Board order, a report allocating the backpay award to the appropriate calendar
year.15
(d) Within 14 days from the date of this Order, remove from its files any reference
to the unlawful permanent lay-offs of Kyle McKellips and Allan Romanowski, and within 3
days thereafter, notify McKellips and Romanowski in writing that this has been done and that
the layoffs will not be used against them in any way.20
(e) Within 14 days from the date of this Order, bargain collectively and in good
faith with the Union as the exclusive representative of the employees in the following Unit
with respect to wages, hours, and other terms and conditions of employment:
All full-time and regular part-time mechanics, drivers, and foremen employed by the 25
Respondent at profit center 776 in Franksville, Wisconsin, excluding all other
employees, clerical staff, salespeople, managers, guards, and supervisors, as defined in
the Act.
(f) The Union’s certification is extended 12 months from the date that Respondent30
begins to comply with this Order.
(g) Within 14 days from the date of this Order, on request of the Union, bargain in good
faith with the Union on a schedule providing for good-faith bargaining for not less than 24
hours per month and 6 hours per bargaining session, or on another schedule to which 35
Respondent and the Union have mutually agreed to, until they reach a complete collective
bargaining agreement or good-faith impasse in bargaining.
(h) Prepare written bargaining progress reports every 30 days and submit them to
the Regional Director and the Union to provide the Union with an opportunity to reply.40
(i) Within 14 days from the date of this Order, restore the bargaining unit work to
the status quo that existed on August 5, 2019, including transferring back unit work to the
Franksville facility, restoring bargaining unit positions, and assigning bargaining unit work to
unit employees.45
JD–19–20
36
(j) Within 14 days after service by the Region, post at its facilities in Franksville,
Waukesha, Madison, Green Bay, Wausau, and Fond du Lac, Wisconsin copies of the attached
notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director
for Region 18, after being signed by the Respondent's authorized representative, shall be 5
posted by the Respondent and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not altered, 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 facilities involved in these proceedings, the Respondent 10
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent since March 13, 2018.
(k) Within 14 days after service by the Region, convene meetings at its Franksville,
Wisconsin facility during working time, scheduled to ensure the widest possible attendance, at 15
which the attached notice is to be read to employees, supervisors, and managers by Regional
Vice President Jason Mayfield (or his successor) in the presence of a Board Agent if the
Region so desires, or, at the Respondent’s option, by a Board agent in the presence of
Mayfield. The Respondent shall allow a representative of the Union to attend and video record
each such meeting.20
Dated, Washington, D.C. May 13, 2020
25
Michael A. Rosas
Administrative Law Judge
,i,„_:. ,'.7_ /1_,
JD–19–20
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 activities.
WE WILL NOT do anything to interfere with, restrain, or coerce you in the exercise of the
above rights granted by Section 7 of the Act.
WE WILL NOT tell you that the Union will not get into our facilities, that the Union was never
going to happen, or otherwise communicate to you that it is futile to support a union.
WE WILL NOT instruct you to report the union activities of your co-workers to us.
WE WILL NOT question you about your union activities or the union activities of others.
WE WILL NOT question you in preparation for hearings before the National Labor Relations
Board without providing appropriate assurances, including that your participation is voluntary
and will not be met with retaliation.
WE WILL NOT permanently lay employees off or otherwise retaliate against you for engaging
in union activity.
WE WILL NOT outsource or transfer work in retaliation for employees’ union activities and
participation in proceedings before the National Labor Relations Board or because the Union
filed charges on your behalf.
WE WILL NOT eliminate the positions of union-represented employees because of their
support for the union and participation in proceedings before the National Labor Relations Board
or because the Union filed charges on your behalf.
WE WILL NOT assign work to employees who are not represented by the Union from
bargaining unit employees because those employees are represented by a union.
JD–19–20
WE WILL NOT fail and refuse to bargain in good faith with the Union as the exclusive
representative of employees in the following appropriate unit (Franksville Bargaining Unit):
All full-time and regular part-time mechanics, drivers, and foremen employed by the
Respondent at profit center 776 in Franksville, Wisconsin, excluding all other
employees, clerical staff, salespeople, managers, guards, and supervisors, as defined
in the Act.
WE WILL NOT refuse to meet regularly with the Union for collective bargaining
negotiations.
WE WILL NOT refuse to discuss wages before all other non-economic issues are resolved.
WE WILL NOT engage in negotiations without trying, in good faith, to reach an agreement
with the Union.
WE WILL NOT transfer bargaining unit work done by drivers and mechanics at the
Franksville facility without providing the Union with notice and an opportunity to bargain
about the decision.
WE WILL NOT in any manner interfere with, restrain, or coerce you in the exercise of the
rights guaranteed under Section 7 of the Act.
WE WILL make Kyle McKellips and Allan Romanowski whole for any loss of wages and
other benefits as a result of their permanent layoffs.
WE WILL, within 14 days from the date of the Board’s Order, offer Kyle McKellips and
Allan Romanowski full reinstatement to their former jobs without loss of seniority or any
other rights or privileges previously enjoyed.
WE WILL compensate Kyle McKellips and Allan Romanowski for the adverse tax
consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the
Regional Director for Region 18, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allocating the backpay award to the
appropriate calendar year.
WE WLL, within 14 days from the date of the Board’s order, remove from our files any
references to the unlawful permanent layoffs of Kyle McKellips and Allan Romanowski, and
within 3 days thereafter, WE WILL notify each of them in writing that this has been done
and that our unlawful conduct will not be used against them in any way.
WE WILL, within 14 days from the date of the Board’s order, restore the bargaining unit
work that was unlawfully outsourced from the Franksville facility, as it existed on August 5,
2019.
WE WILL, on request, bargain with the Union as the exclusive collective bargaining
representative of the employees in the Franksville Bargaining Unit concerning terms and
JD–19–20
conditions of employment and, if an understanding is reached, embody that understanding in a
signed agreement.
WE WILL, on request of the Union, bargain in good faith for a minimum of 24 hours per
month, for at least 6 hours per bargaining session, or, in the alternative, on another schedule to
which the Union agrees.
WE WILL submit progress reports regarding the negotiations to the compliance officer
for Region 18 every 30 days and serve copies of those reports on the Union.
WE WILL hold a meeting or meetings during working at the Franksville facility and have this
notice read to you and your fellow employees by Regional Vice President Jason Mayfield, in
the presence of a Board agent and an agent of the Union, if the region or the Union so desires,
or by a Board agent in the presence of a Regional Vice President Jason Mayfield and, if the
Union so desires, of an agent of the Union.
SUNBELT RENTALS, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov
Federal Office Building, 212 3rd Avenue, S. Suite 200, Minneapolis, MN 55401-2221
(612) 348-1797, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/18-CA-236643 by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER (414) 930-7203.