U-Haul Company of Nevada, Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 17, 2006

28-CA-020599 (N.L.R.B. Oct. 17, 2006)

JD(SF)–53-06
Las Vegas, Nevada
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

U-HAUL COMPANY OF NEVADA, INC.
and U-HAUL INTERNATIONAL, INC.,
a Single Employer

and Cases 28-CA-20599
28-CA-20600
INTERNATIONAL ASSOCIATION OF 28-CA-20602
MACHINISTS AND AEROSPACE WORKERS,
LOCAL LODGE 845, AFL-CIO

TABLE OF CONTENTS
Statement of the Case........................................................................................................................1
Findings of Fact ..................................................................................................................................2
I. Jurisdiction...............................................................................................................................2
II. Alleged Unfair Labor Practices ...............................................................................................3
A. Background ....................................................................................................................3
B. The Facts........................................................................................................................3
1. UHI ..........................................................................................................................3
2. UHN ........................................................................................................................6
3. The Three Alleged Discriminatees..........................................................................7
4. Trash cans ..............................................................................................................8
5. Parts counter...........................................................................................................9
6. Clean up time..........................................................................................................11
7. Shop rules ...............................................................................................................11
8. Warning notices to de Dios and Mendoza ..............................................................12
9. Pay raise .................................................................................................................13
10. Eating in front of the facility...................................................................................14
11. Efficiency report ....................................................................................................14
12. Leave requests......................................................................................................14
13. Chock block warning.............................................................................................15
14. Ban on cameras and more....................................................................................17
15. Holiday leave.........................................................................................................18
16. Fuller installs a used part ......................................................................................18
17. Changes in health coverage .................................................................................19
18. Fuller and de Dios are suspended and fired........................................................20
19. Mendoza is fired....................................................................................................23
20. De Dios’ earlier warning........................................................................................26
21. UHN’s pattern of discipline under Shop Manager Branning .................................26
C. Single Employer Issue ...................................................................................................26
D. The Alleged Violations ...................................................................................................27
1. Section 8(a)(1) allegation........................................................................................27
2. Section 8(a)(3) and (5) allegations..........................................................................27
a. Rule changes ..................................................................................................27
b. Fuller, de Dios, and Mendoza .........................................................................30
2. Section 8(a)(4) allegations ......................................................................................34
3. Health insurance changes ......................................................................................34
Conclusions of Law ............................................................................................................................34
Remedy ..............................................................................................................................................36
ORDER...............................................................................................................................................37
APPENDIX .........................................................................................................................................i

JD(SF)–53-06
Las Vegas, Nevada
1

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

U-HAUL COMPANY OF NEVADA, INC.
and U-HAUL INTERNATIONAL, INC.,
a Single Employer

and Cases 28-CA-20599
28-CA-20600
INTERNATIONAL ASSOCIATION OF 28-CA-20602
MACHINISTS AND AEROSPACE WORKERS,
LOCAL LODGE 845, AFL-CIO

Mara-Louise Anzalone, Esq., for the General Counsel.

Richard S. Cleary, Esq., (Greenebaum Doll &
McDonald, LLC) of Louisville, Kentucky,
for Respondent UHN.

Cynthia Beauchamp, Esq.,
Assistant General Counsel, Labor Affairs,
of Phoenix, Arizona, for Respondent UHI.

James “Bud” Michel, Grand Lodge Rep.
Western Territory, International Association
of Machinist and Aerospace Workers for Charging Party.

DECISION

Statement of the Case

WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Las Vegas,
Nevada, on May 23-26 and May 31-June 2, 2006. The charges were filed by the International
Association of Machinists and Aerospace Workers Local Lodge 845, AFL-CIO (the Union) on
January 23, 2006, and amended charges were filed thereafter. The complaint was issued
March 23, 2006. The complaint alleges that U-Haul Company of Nevada, Inc. (UHN) and U-
Haul International, Inc. (UHI) are a single employer and that UHN and UHI (Respondents)
violated Section 8(a)(1) by threatening to withhold wage increases from employees because of
union activities and violated Section 8(a)(3) in 22 instances, including disciplining and firing
employees Herman de Dios, Larry Fuller, and Victoriano Mendoza because they engaged in
union activity. The complaint alleges that the same conduct taken against these three
employees violated Section 8(a)(4) because they testified against Respondents in a previous
Board trial. Finally, the complaint alleges Respondents violated Section 8(a)(5) by changing
terms and conditions of employment without first affording the Union the opportunity to bargain
concerning those changes. Respondents filed a timely answer that, as amended at the hearing,
denied single employer status and the substantive allegations of the complaint.

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Before the hearing opened I issued an order requiring that an attorney on the staff of the
General Counsel not participate in these proceedings. The General Counsel appealed this
ruling to the Board. At the hearing I ruled that all parties were precluded from relitigating the
single employer issue except as to significant changes that occurred after the close of the
hearing in the prior case;1 that case is described in more detail below. UHI appealed this ruling
directly to the Board. In their brief Respondents urge me to reconsider this ruling but I deny that
request. I precluded the General Counsel from introducing evidence concerning alleged false
information that Robert Branning, shop manager for UHN, placed on his employment
application. The General Counsel indicates in his brief that he has filed a special appeal with
the Board and urges me to reconsider my ruling. I have decided to reaffirm my ruling for reason
stated on the record. Finally, the complaint in this case did not allege any specific concerted
activities sufficient to support a finding that Respondent independently violated Section 8(a)(1)
by discriminating against employees. I allowed the introduction of evidence of concerted activity
based on a representation made by counsel for General Counsel that she would connect that
evidence to union activities. The General Counsel failed to make good on that representation.
Late in the hearing the General Counsel issued complaint based on conduct unrelated to the
union activity in this case. I denied the General Counsel’s motion to consolidate that case with
these cases. In his brief the General Counsel indicates that he had appealed this ruling too
directly to the Board. The Board has not yet ruled on any of these appeals.

On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel,2 UHN and UHI,3 I make the following.

Findings of Fact

I. Jurisdiction

UHN, a corporation, has been engaged in the business of repairing rental vehicles and
trailers at its facility located at 1900 South Decatur Boulevard (the Decatur facility) in Las Vegas,
Nevada. During the 12-month period ending January 23, 2006, UHN derived gross revenues in
excess of $500,000 and purchased and received at the Decatur facility goods valued in excess
of $50,000 directly from points located outside the State of Nevada. UHI, a corporation, with an
office and place of business located in Phoenix, Arizona, has been engaged in the business of
providing consulting and marketing services to various marketing companies located throughout
the Unites States including UHN. During the 12-month period ending January 23, 2006, UHI
derived gross revenues in excess of $500,000 and purchased and received at UHI facilities
goods valued in excess of $50,000 directly from points located outside the State of Arizona.
UHN and UHI each admits and I find that that they are employers 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.

1 Actually, the parties suggested and I accepted October 14, 2004, as the operative cut-off
date despite the fact that the hearing did not officially close until June 28, 2005. October 14,
2004, was the last day that testimony was taken.
2 The General Counsel’s unopposed motion to correct the record is granted.
3 UHN and UHI jointly filed a brief.

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II. Alleged Unfair Labor Practices

A. Background

The resolution of many of the issues in this case is dependent on the final outcome of
two earlier cases. In U-Haul Co. of Nevada, Inc., 341 NLRB 195 (2004), the Board certified the
Union as the collective bargaining representative of employees in the following unit.

Included: All full-time and regular part-time brake/tire specialists, detail tire specialists,
detail specialists, engine specialists, mechanic express specialists, PM inspection
specialists, pre/post inspection specialists, transmission specialists, van body
specialists, mobile repair specialists, parts clerks, parts specialists, transfer drivers,
repair dispatch specialists, schedulers and senior clerks employed the Employer4 at and
out of its 1900 South Decatur Boulevard, Las Vegas, Nevada and 989 South Boulder
Highway, Henderson, Nevada repair facilities.

Excluded: All other employees, office clerical employees, professional employees,
guards and supervisors as defined in the Act.

The Union won the election held on May 7, 2003, by a vote of 47 to 25 with 5 challenged ballots.
After the Board issued the certification UHN closed its Henderson facility. UHN has refused to
recognize or bargain with the Union as it challenges the certification in the United States Court
of Appeals.

On September 30, 2005, Judge John J. McCarrick issued a decision in U-Haul Co. of
Nevada, Inc., JD(SF)-65-05. Judge McCarrick concluded that UHN and UHI, as well as other
corporations, constituted a single employer. He found that the respondents, including UHN and
UHI, violated Section 8(a)(1) on at least 24 separate occasions, violated Section 8(a)(3) on 31
occasions, including closing the Henderson facility and discharging 41 employees, violated
Section 8(a)(4) on one occasion, and violated Section 8(a)(5) by making numerous unilateral
changes, refusing to provide the Union with certain information, and by generally refusing to
recognize the Union. Judge McCarrick ordered the respondents, including UHN and UHI, to
recognize and bargain with the Union and reopen the Henderson facility. The three alleged
discriminatees in this case, de Dios, Fuller, and Mendoza, testified in that case as did eight
other current bargaining unit employees of UHN.

B. The Facts

1. UHI

In this section I examine whether significant changes have occurred since
October 14, 2004, concerning the single employer issue.

UHI provides handbooks for new employees throughout the U-Haul system, including
new employees of UHN. The handbook identifies E. J. Schoen as Chairman of the Board of
UHI and explains the benefits and personnel policies affecting employment. It includes a page
near the front of the handbook from Schoen setting forth why:

4 The Board’s unit description at this point actually says “the Employers.” I assume this is a
typographical error and therefore I do not repeat it in this case.

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We do not believe that union representation of our employees would be in the best
interest of either the employee or the company.

The handbook indicates that there are 82 marketing companies (such as UHN) in the United
States and Canada that control the marketing, distribution and maintenance of U-Haul rental
equipment. In addition more than 100 repair shops (such as the Decatur facility) maintain and
repair U-Haul equipment. The handbook states that UHI:

provides staff services for the U-Haul field organization. Marketing plans and tools,
technical assistance, accounting services, human resources, communications and data
processing are just a few of the many functions provided by UHI.

The handbook states that most problems can be handled by the employee’s immediate
supervisor but that if no action is taken the employee may describe the problem in writing and
submit it to a higher level of management, then to the Human Resources Department, and then
to Schoen, if necessary.

In 2005 UHI decided to use United Healthcare to administer its medical plan for
employees outside of Arizona. For employees working in Arizona, including those working for
marketing companies, UHI decided to retain Oxford Life Insurance. As more fully described
below, UHI changed the costs for certain insurance benefits for employees throughout the
United States. In other words, these facts show that UHI retains control over employee
benefits.

Patricia DeShong is director of operations for human resources for UHI; she has held
that position for 10 years and has over 30 years work experience in human resources. During
the time of the trial before Judge McCarrick, DeShong reported to Henry Kelly, vice president of
human resources for UHI. In late July or early August 2003, DeShong was asked to become
interim manager of the human resources department because Kelly was so involved in the
litigation. DeShong testified that she was instructed to change the way UHI operated so that
UHI was more consultative and less directive in dealing with the marketing companies. So at
that time DeShong met with department heads, but the record does not show what she said to
them. Rather, DeShong testified in a conclusory fashion, often in response to leading
questions. For example, after testifying that the hiring process “was probably the one area
where there was very little change because the hiring decision has always been made by the
local manager,” DeShong was again asked whether there was a “change” in the hiring process.
This time she replied “we had no authority to tell anyone who – if they could hire or if they could
not hire at any facility. That was entirely up to that manager.” In response to a leading question
DeShong testified that this indeed was a change from the way Kelly ran things. I cull very little
useful evidence from this testimony. Moreover, whatever happened when DeShong replaced
Kelly on an interim basis occurred before October 14, 2004 and therefore was a matter that was
before Judge McCarrick.

DeShong testified that UHI no longer mails the new employee orientation packet directly
to the employee; instead the packets are sent to the local marketing companies who then
distribute them to the new employees. UHI no longer tries to keep complete personnel files on
employees; it merely accepts what is sent by the marketing companies rather than try to track
down every missing document. UHI no longer informs the marketing companies when a full-
time employee who had been regularly working less than full time is in danger of losing their full-
time benefits. In the past UHI attempted to have as many employees as possible to enroll in its
benefit plans; this lowered overall costs. Now, according to DeShong, UHI no longer does so.
But none of this individually or collectively amounts to a significant change in operations.

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DeShong testified that UHI no longer monitors whether employees were being paid
above or below the pay range set by UHI for a particular job; this is left to the discretion of local
management. But there is no evidence concerning how, if at all, this actually impacted the local
facilities or even if or how the local managers were advised of this discretion. Concerning
personnel matters, UHI no longer instructs the marketing companies on what personnel action
should be taken; instead, according to DeShong, it merely gives advice. But this testimony is
contradicted by Branning’s testimony that UHI instructed him on one occasion that alleged
discriminatee Larry Fuller could not be given funeral leave.

DeShong has allowed UHI policies to be applied flexibly. For example, at the request of
a local manager she allowed a service award to be given to an employee even though the
employee had not technically earned it. DeShong cited an example of an employee retained by
a local marketing manager after the employee’s background check yielded questionable results;
DeShong testified in a conclusory fashion that UHI would otherwise have required that the
employee be terminated. But these are isolated instances at best.

James Howell Greer is vice president of human resources for UHI since November 11,
2003; he replaced Kelly who was given a lateral transfer within UHI to a position unrelated to
labor relations. Greer testified that he was hired to bring additional professionalism and formal
organization to the business. Within a month of his hire Greer proceeded to divide the human
resources functions into six different departments, each with a department head. Greer testified
that under his direction human resources is more careful not to issue directives as opposed to
suggestions and recommendations. There is no evidence that any change in operations was
communicated to local managers, in writing or otherwise. Again these matters occurred while
the single employer issue was still being litigated. In any event, these appear to be changes in
style rather than substance.

Greer testified concerning an incident where an employee fell down a flight of stairs and
that under normal procedure “we would send the individual for a drug screen and, if the drug
screen comes back positive, we normally put the person on substance abuse leave” (emphasis
added). In this case the employee tested positive but the local manager did not want to place
the employee on leave because she was a single parent and a good employee. The local
manager spoke with Greer about the matter and Greer indicated that this was probably not a
good idea. The local manager decided not to place the employee on substance abuse leave.
While this incident does show that UHI allows local managers a degree of flexibility in applying
UHI’s policies, the very fact that the local manager had to talk with Greer about the matter rather
than do it on his own shows the limits of the local manager’s authority to act independently.

Greer testified concerning anticipated issues arising from the “Day Without Immigrants”
protests that occurred in early May 2006. Greer explained:

I think it was going to be on May the 1st and, of course, that’s a big business day in our
world and we were – and we do have quite a number of minority employees within the
system and our concern was that employees would elect to go and participate in the
demonstrations and not to be at work that day and we would have an inability to service
customers and our other concern was that managers, in turn, would overreact and
maybe take some adverse action against people that might not be the best course of
action. So I drafted a communication and sent it up to the chairman of the board and he
and I together worked on how he wanted to re-frame that and he sent it out to all the
field managers.

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The memorandum was not placed in evidence and I do not consider any evidence concerning
its content. Far from showing a change in the degree of local autonomy, this testimony shows
just the opposite. UHI’s chairman of the board sent the local managers a memorandum
concerning how they could handle a looming employment problem. And one of the issues of
concern to UHI was that the local managers might act autonomously in addressing the problem.

I conclude that nothing in Greer’s testimony indicates any substantive change
concerning the operations of UHI and UHN.

Jeremy E. Frank works for U-Haul Business Consultants as an area vice president. His
area includes UHN. U-Haul Business Consultants is one of the enterprises found by Judge
McCarrick to be part of the single employer conglomerate that includes UHI and UHN. Frank is
also one of three members of UHN’s Board of Directors. The other two members are UHN’s
president Sterling Hogan, Sr., and Ron Frank. Jeremy Frank testified that it was clarified that
the shop answered to the marketing company president (Hogan) and not to anyone above that
position. He stated “That was the biggest thing that was reclarified and changed.” Frank
testified that he and Ron Frank decided to replace the UHN’s previous president because he
allowed UHI officials to overstep their bounds in terms of their authority to direct the shop. His
testimony, taken as a whole, clearly implied that this removal occurred before October 14, 2004,
but when confronted with documentary evidence Frank was forced to concede that the change
in UHN’s president occurred on June 2, 2003, over seven months before the hearing opened
before Judge McCarrick. Frank later testified that he learned from Hogan that Henry Kelly, vice
president of human resources for UHI, had been overstepping his bounds by directly
communicating directives to shop employees. When I pointed out that he had earlier testified
that the change in UHN’s president occurred after he learned of the overstepping by higher
officials, Frank gulped and palpably appeared to create the explanation that after Hogan took
over, and after the alleged clarification, Kelly continued to overstep the bounds of his authority.
Hogan did not corroborate any of this testimony. Of course, all of this shifting testimony makes
no sense whatsoever and I decline to credit any of it. Rather, I conclude it was entirely
fabricated.

Greer testified about an arbitration program that he recently implemented where
employees could bring disputes before a third party arbitrator. The policy was implemented
nationwide except for UHN. This shows continued control by UHI over significant labor policies.
Greer explained that he spoke to Frank who told him that they were not going to implement the
program for UHN because of the pending litigation. This leads me to infer and conclude that
UHI is not making permanent changes as they regard UHN but rather is taking temporary
measures until the litigation is completed. Moreover, there is no evidence that Hogan, UHN’s
president, played any role in deciding whether UHN would participate in this program or that
Hogan even knew that UHN would not participate.

George R. Olds is assistant general counsel and assistant secretary for UHI. He
testified generally about changes but did not provide specific evidence concerning what in fact
changed and when the changes occurred. I give little weight to his testimony.

2. UHN

UHN consists of 13 centers that rent trucks and trailers and the Decatur shop that
repairs the U-Haul vehicles. One of the 13 rental centers is also located at the Decatur shop
facility. UHN also has rental agreements with 97 dealerships located in Nevada and Utah.
Sterling Hogan, Sr. has been president of UHN since June 2, 2003. Robert Branning became
the shop manager at the Decatur facility on August 1; he began working for UHN on

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March 4, 2003, in the mechanical express position and later worked as a pre-inspector. This
was when the shop was admittedly “abuzz” about the Union’s organizational campaign. Mark
Hayes was the shop manager before Branning. John Georgie is parts manager at the Decatur
facility. He purchases parts and supplies and distributes them to the mechanics and other
employees. John Rubio was shop foreman and was the direct supervisor of the mechanics who
worked in the shop. All of the persons mentioned above are admitted agents of Respondent.
At the time of the trial in this case Oscar Orola was shop foreman for UHN; Rubio had left
around March 2006. From November 2005 until March 2006, Orola worked as a scheduler. As
such he assigned worked to the mechanics; as they completed one job Orola assigned them the
next. Respondent denies that as a scheduler Orola was its agent.

A pre-inspector inspects the vehicles upon arrival at the Decatur facility and determines
the parts that are needed to make the repairs. A job order is then submitted to the parts
department where the parts are gathered and placed in a box. The vehicle is then assigned by
the shop manager or scheduler to a mechanic to make the repairs. Mechanics may discover
that additional parts are needed to make the repairs; they request those parts by placing a job
order. As material and parts are received by the shop they are added to a computer list of
inventory; when inventory is dispensed through the job order process it is listed against the
vehicle receiving the parts. On occasion parts are dispensed but not used by the mechanic
because they were unnecessary. Under those circumstances the parts are returned to the parts
department and they are again listed as inventory. But some parts come as part of a kit or
package and a mechanic may use some but not all the parts in the package. The unused parts
from the kit are not returned to the parts department because there is no way to list them for
inventory purposes. Those unused parts may be thrown away or saved by the mechanics for
future use.

3. The Three Alleged Discriminatees

Victoriano Mendoza, one of the three alleged discriminatees in this case, began work for
UHN in 2000; before that he worked at a U-Haul facility in Fremont, California. In 2003 he
began working as a final inspector and received $1 per hour wage increase. He has 21 years of
experience as a mechanic and a degree in auto mechanics from the Philippines. Larry Fuller,
another alleged discriminatee, began work for UHN on May 8, 2000. During that time he
received several promotions and pay raises. Before that Fuller owned and operated his own
repair shop for 18 years. He has many certifications as a mechanic, including master
certificates. Herman de Dios, the third alleged discriminatee, started work at UHN on
October 28, 2002. De Dios has 26 years experience working as a mechanic, including training
in Germany, Japan, and the Philippines. Prior to the events in this case none of these
employees had received any lawful discipline from UHN. In other words, Mendoza, Fuller, and
de Dios each was a veteran mechanic with a good work record at UHN.

Judge McCarrick found that in March 2003, Fuller was identified to Respondents as one
of the union leaders and that:

Fuller engaged in union activities that were known to Respondents including signing a
union authorization card and six employee petitions.
…
Fuller was clearly engaged in Union and protected concerted activities on December 9,
2003, when he discussed the terminations of fellow employees.
…

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Respondents’ warning of Fuller violated both Section 8(a)(1) and (3) in that he was being
disciplined for engaging in Union and protected activity at the time he was discussing
working conditions. Id., slip op. at 108.

Judge McCarrick also relied on Fuller’s testimony in concluding that Respondent unlawfully
discharged other employees, including an employee who Respondents claimed had been
“paperhanging.” Id., slip op. at 97, 104. Finally, Judge McCarrick concluded that Respondents
had unlawfully given Fuller a warning notice. Id., slip op. at 29-30.

Mendoza and de Dios both signed authorization cards for the Union and those cards are
a matter of record in Judge McCarrick’s case. Judge McCarrick also concluded that
Respondents violated Section 8(a)(5) when it changed de Dios’ job classification. Id., slip op.
at 129.

In addition, Branning admitted that when he was a unit employee the shop was “abuzz”
about the Union’s organization campaign. Also, shortly before Christmas, 2005,5 when
Branning was shop manager, he asked Fuller if he could run something by him. When Fuller
agreed, Branning said that he understood that Fuller was the shop steward and Branning asked
if Fuller “would turn me in” if he gave the shop employees an hour off early. Fuller replied that
he had no problem with that.

Finally, Branning testified at Mendoza’s unemployment compensation hearing after
Mendoza was fired. Branning testified that he thought Mendoza’s work performance had
deteriorated in December and that this perhaps was due to the fact that many employees were
off sick during that time. Branning then added:

I know that we’re going through a lot of outside issues at our repair facility that ha[ve] to
do with the NLRB and the International Machinist Union and everything, that those
could’ve caused some of the problem. I’m not sure.
…
I, I shouldn’t even have brought that up because I’m not supposed to. The, we have
been fighting with the IAM for almost three years now.

At the hearing in this case Branning explained that it was the standing rule ever since the Union
organizing started that they do not talk about the Union to anyone outside the company, that
“We just don’t discuss unions. … I’m supposed to keep my mouth shut.” When asked whether
he was under the same standing order while testifying he answered “Good Question. I never
broached that.”

I conclude that UHN was aware that Fuller, de Dios, and Mendoza supported the Union.

4. Trash cans

As indicated, Branning became shop manager on August 1. That day Branning
assembled the employees and read them an 11-point memo. It began:

Lunch time is from 12:00 to 12:30, when you clock out for lunch is when you go to the
bathroom to wash your hands not 11:50 or 11:55, only after you clock out.

5 Hereinafter all dates are in late 2005 and early 2006 unless otherwise indicated.

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It ended:

SCUTTLEBUTT, there is scuttlebutt going around the shop that I’m going to fire
everyone. This is not true. I don’t want to fire anyone. All I ask is that everyone follow
the rules, policy and procedure. If you don’t follow the rules, policy and procedure then
you leave me no choice but to write you up and to proceed with the recommendations I
receive from my boss.

Branning told the employees:

Remember to empty your trash can every night before you go home or you will be
written up, period, no exceptions.

Although the mechanics had been responsible for emptying their trash cans on a daily basis,
there had not been a rule that they had to do so at the end of their work day. This change,
standing alone, might be insignificant but for the discipline described below

On about August 3, Branning gave Fuller, Mendoza, and de Dios warning notices that
read:

On August 2nd 2005, I, Robert Branning inspected each bay for cleanliness. Your trash
can was not emptied. You were told along with everyone else in the shop to empty your
trash can every day. No exceptions, trash cans will be emptied daily.6

These employees had not emptied their trash cans at the end of the day and there were only a
few pieces of paper left in Mendoza’s trash can.7

The facts in this section are based on a composite of the credible testimony Fuller,
Mendoza, de Dios, and former shop manager Hayes. I have decided to rely heavily on Hayes’
testimony concerning the past practice at the shop during his tenure as shop manager. His
demeanor seemed credible and the testimony he gave both helped and hurt the contentions of
UHN and the General Counsel.

5. Parts counter

Before Branning took over as shop manager, employees were not supposed to go to the
parts department to obtain parts, but from time to time they did so when there was a delay in
distributing the parts. When employees did so, they were not given written discipline. Instead,
Shop Manager Hayes verbally dealt with the matter. On August 1, Branning announced that the
window to the parts department would be closed and no one was to go to the parts department
directly to obtain parts. Instead, the mechanics were to place the job order in a rack and a parts
department employee would pick up the job orders and then supply the parts. This affected the

6 Grammatical and spelling errors have been corrected in Branning’s notices and
memoranda.
7 The General Counsel does not allege that the promulgation of the rule concerning
emptying the trash at the end of the day is unlawful; instead, as will be seen below, he alleges
another rule requiring daily emptying of trash to be unlawful. However, the General Counsel
does allege that the discipline imposed on Fuller, de Dios, and Mendoza violated both Section
8(a)(3) and Section 8(a)(5).

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working conditions of the employees because the parts department did not always promptly
distribute the parts: this caused the employees to be delay in completing their work.

After the announcement, Fuller nonetheless went to the parts department window.
Branning “caught” Fuller at the parts department and told him that he was not supposed to be
there and that Fuller knew that. Earlier in the day Fuller and the other employees had attended
a meeting where Branning appeared very angry. The conversation between Branning and
Fuller at the parts department continued as Branning referenced that meeting but telling Fuller
“[B]y the way, you did not agree with something I said this morning.” Fuller replied by
questioning whether Branning was really upset about a $70 punctured tire. Branning said that
he was upset but he was more upset because the company was spending $100,000 per month
on lawyer’s fees. In context, this comment was meant to refer the lawyers’ fees being incurred
concerning the Union’s organizing campaign and consequent litigation. Branning told Fuller that
he was not going to write him up for being at the parts department counter, but it would be his
final warning. Later that afternoon Branning again caught Fuller at the parts department
counter. Branning asked what Fuller was doing there and Fuller replied that he was getting
parts. Branning asked whether Fuller was supposed to be there and Fuller said no. Branning
asked then why was he there; the conversation became heated as Fuller said “f --- you” and
Branning told Fuller to get back to work. Branning then gave Fuller a warning notice, dated
August 8, that read:

On August 2nd 2005 I Robert Branning gave you 1 verbal warning about going to the
parts counter. You were instructed not to go to the parts counter unless the parts
personnel call you to the counter. You have been observed at the parts counter twice
today. The second time I caught you & told you to go back to your work station. You
started arguing with me on this subject. Insubordination will not be tolerated in this shop.
You will do what your supervisor asks you to do.

The facts in this section concerning the past practice are based on Hayes’ credible
testimony. The facts concerning Fuller’s warning are based on a composite of the testimony of
Fuller and Branning; neither’s testimony was fully convincing. The facts concerning the first
encounter at the parts counter on August 2 are based on Fuller’s credible testimony. Branning
did not specifically deny the earlier meeting with employees, Fuller’s testimony that Branning
referred to that meeting at their encounter at the parts counter, or the Fuller’s testimony
concerning the $100,000 lawyer costs. The facts concerning the second encounter are based
on Branning’s more credible testimony. Fuller testified that Branning called him into Branning
office later that day and gave him a warning notice for being at the parts counter earlier in the
day. Fuller testified that he protested and said that he thought Branning had told him he would
only receive a verbal warning but Branning claimed he never said that. But given the fact that
Fuller signed the warning with no further protest and that the warning notice specifically refers to
two instances that day when Branning observed Fuller at the parts counter, I do not find Fuller’s
testimony to be believable in this instance. In addition, Fuller denied directing the “f” word at
Branning, but Fuller’s testimony concerning his use of such language was wholly unconvincing.

The General Counsel argues that Fuller did not violate any rule; he points to another rule
that allowed employees to ask questions from the parts manager. But Fuller admitted that he
“was caught red-handed at the parts counter” and thereby admitted that he had violated the rule
concerning being at the parts window.

Finally, Hogan testified that he instructed Branning to shut down the parts department
window. He claimed the business reason for doing so was “To stop theft and parts missing and
not being put on the equipment . . .” There is no evidence whatsoever that there had been

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thefts or that parts were missing. And contrary to Hogan, Branning testified that he closed the
parts window because employees would stand in line talking to each other instead of working.
This is the first instance of several where Hogan’s testimony appears entirely created; I do not
credit it.

6. Clean up time

Employees cleaned up their work area from 4:00 p.m. to 4:30 p.m. On about August 31
Branning posted a memo announcing that clean up time now was from 4:15 p.m. to 4:30 p.m.
At the trial Branning explained that he was able clean up his work area in 15-minutes and felt
the other employees should be able to do so also. He also explained that he observed that the
employees would quickly clean up their work areas and then stood around talking to each other;
instead of talking to each other he wanted them working.

7. Shop rules

In early August Branning distributed a list of 25 rules for the shop personnel and had the
employees sign copies. Among those rules the following are alleged to be unlawful:

• Empty your trash daily.
• Sweep and mop your bay daily.
• No use of cell phones on company time unless it is an emergency.
• Shirts will be tucked in at all times.
• No use of company phones, unless you are on break and/or lunch break or in an
emergency situation.
• No eating of foods in the shop area. This includes work bays, bathroom, parts
department and wash bay.

Also included but not alleged by the General Counsel to be unlawful is:

• No political/union activities allowed on company time.

There is no dispute that employees could be disciplined for violating these work rules.

I have described above the past practice concerning emptying trash bins and that
employees always had been required to empty their trash every day. The rule concerning daily
sweeping and mopping was not new; as Hayes credibly explained, this had been the long
standing rule. There is no evidence that employees were free to violate these rules without
incurring discipline. I note that Hogan testified that rules concerning emptying trash and
sweeping and mopping were required by OSHA. But no documentation was presented to
support this testimony and later Hogan explained that the OSHA rules require that oil spills need
to be mopped up immediately. UHN did present a 2001 bulletin from UHI pointing out in general
terms why housekeeping is important, but it contained no rules at all much less any of the rules
that were implemented. Again, Hogan’s testimony is unsupported and not credible.

The Decatur facility has a lunchroom inside and picnic tables outside in the back where
employees are allowed to eat their meals. Before these rules, employees were not required to
eat there. Instead, they often ate at a work station or other places in the shop. UHI’s safety
manual provided that “System members shall not eat or drink in bathrooms or in other areas
exposed to toxic materials.” Hayes credibly testified that he discussed this matter at regular
safety meetings with the employees and reminded them to wash their hands before eating. He

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allowed employees to eat in the shop in areas away from toxic materials; indeed he joined them
there on occasion.

In the past employees were required to have their shirts tucked in while away from their
work station. Hayes credibly testified that there was no such requirement while working
because shirts often came untucked while working.

As Hayes credibly testified, in the past employees were allowed to answer their cell
phones during working time. On October 7 Branning gave employee Marlon Taylor a written
warning notice for talking on his cell phone during regular work hours and refusing to return to
work when told to do so.

Finally, as Hayes credibly testified, in the past employees were allowed to use the
company telephones located in the office, but there is no specific evidence whether or not they
were allowed to do so during working time in nonemergency situations.

8. Warning notices to de Dios and Mendoza

In late August, de Dios installed a new engine on a truck and Mendoza performed the
final inspection on the same vehicle. Another employee used the vehicle to run an errand
during which the engine overheated and stopped after being driven 68 miles. Branning claimed
that it cost UHN about $4,500 to replace the engine.

On August 23 Branning gave de Dios a warning notice that read:

This warning is given to you for failure to perform a 20 mile road test on DC5011C after
you replaced the engine. This test is mandatory on all engine replacements to make
sure the engine is performing correctly. Your failure to not do this road test has put a
burden on the shop. Due to your failure to complete the road test, we now have to buy
another engine for truck #DC5011C. This is unacceptable performance on your part.

De Dios had test-driven the truck for a few miles, but he did not know about a 20-mile rule and
told that to Branning when he received the warning notice. The foregoing facts are based on
the credible testimony of de Dios, who impressed with his truthful demeanor.

When questioned by me as to how a 20-mile road test would have uncovered a problem
that did not occur until 68 miles, Branning acknowledged that the problem with the engine might
not have been discovered during a 20-mile test drive. Branning presented no specific evidence
as to why de Dios should be held accountable for the engine failure. That is, there is no
evidence that de Dios incorrectly installed the engine. I conclude that Branning knowingly yet
wrongfully blamed the engine failure on de Dios.

The evidence supporting the 20-mile test drive rule for newly installed trucks came from
Branning. He at first testified “I know that it’s standard practice at U-Haul to do a 20-30 mile test
drive once you install an engine . . .” But shortly thereafter Branning admitted that “there’s really
no flat out rule that you had to test drive 20 miles, that’s it, no exception.” This, of course, is
different from the assertion in the warning notice given to de Dios that “[t]his test is mandatory
on all engine replacements.” Respondent presented no documentary evidence to support the
existence of a mandatory rule nor has it established how the alleged rule was disseminated to
employees. Interestingly, there is no evidence as to how Branning came to learn that de Dios
had not test driven the vehicle for 20 miles. I infer that Branning could safely assume this fact

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because no such rule had previously existed. Under these circumstances I conclude that there
was no such rule until Branning announced it in the warning notice he gave to de Dios.

In sum, I conclude that de Dios did not violate any established rule or practice when he
did not test-drive the truck for 20-miles. I also conclude that there is no credible evidence from
which Branning could conclude that de Dios was responsible for the engine failure.

Branning also gave Mendoza a warning notice on August 23 concerning the same truck.
It read:

This warning is given to you for your failure to perform your job properly. You [illegible]
the truck DC5011C on the morning of 08-22-2005. While truck was being driven by
Richard Estrada [the] engine overheated and seized up. Your responsibilities do not end
with post inspection. You are guaranteeing the safe operation & performance of the
truck. The failure of not performing your job correctly has cause[d] a burden on the
company. This burden is unacceptable.

Before passing the truck Mendoza did a road test and discovered that the temperature
gauge indicated a problem. Mendoza told Orola that the truck showed signs of overheating.
Orola said that the truck had a new engine and that after a few days of running it would adjust to
a normal temperature. So Mendoza passed the truck. Branning was standing nearby when
Mendoza had this conversation with Orola; Branning and Orola then talked to each other. The
truck was nearby with the hood open; Branning then went to the left side of the vehicle and
looked at the engine but did not say anything.

The facts in the preceding paragraph are based on Mendoza’s credible testimony. His
demeanor was convincing and his testimony rich in detail. Orola testified generally that he did
not tell Mendoza to pass trucks that otherwise should not have been passed; he did not
specifically deny Mendoza’s testimony. According to Branning, Mendoza had test driven the
truck but only for one mile when according to Mendoza’s job description he should have
performed a 4-mile test so he gave Mendoza a warning notice. Yet the warning notice makes
no direct reference to the test drive. And once again there is no evidence concerning how he
concluded Mendoza only test drove the truck for a mile when, according to Branning, the
problems with the truck occurred only after it was used to run a lengthy errand. At the trial,
Branning claimed that the coolants had been mixed and the level of coolants was low; he
claimed this caused the engine to overheat. Branning testified that Mendoza should have
discovered the coolants were mixed during his final inspection of the vehicle. But Branning was
unable to explain how he concluded that Mendoza failed to top off the coolants as he conceded
that the low level of coolants after the engine blew might have been the result, and not the
cause, of the engine failure. I conclude that Branning seized on the engine failure as a pretext
to blame Mendoza.
9. Pay raise

Sometime in October Hogan was visiting the facility and asked de Dios several times if
he needed anything. After initially saying that he did not need anything, de Dios finally told
Hogan that he needed a pay raise. Hogan replied that he cannot do anything about a pay raise
because it was frozen because of the union activity.

These facts are based on de Dios’ credible testimony. Respondent challenges this
testimony because de Dios also testified that a similar conversation with Hogan occurred in
June or July. I disagree; there is nothing inherently incredible or conflicting in de Dios’
testimony and his demeanor impressed me as someone trying to relate the truth. Hogan denied

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making the statement, but for reasons stated above and below, I find Hogan’s testimony not
believable.

10. Eating in front of the facility

On November 9, Branning gave de Dios, Mendoza, Alberto Quinones and Rolando
Basilio identical warning notices for eating in front of the facility after Branning told them that
there was no eating allowed there and they nonetheless continued eating; the warning notices
indicated that they would be the only written warning that the three employees would receive.

Hayes testified that in about March 2005 the employees stopped eating in front of the
shop because it was not a “good presentation” to the public entering the facility. While I have
generally credited Hayes’ testimony, I do not in this instance. The testimony just described was
conclusory in nature without supporting description. And when he was asked whether after
March anybody ate in the front of the shop, he avoided a direct answer by stating that he was
not always in front of the shop. I conclude that employees continued to eat in front of the shop
until Branning issued the warnings described above.

11. Efficiency report

UHI and UHN have a program that measures the efficiency of the mechanics. A rate is
set for an acceptable level of efficiency, but employees may work at a level well above the
acceptable level. Employees with high overall efficiency rates are more likely to get pay raises
or be rewarded with some extra time off. After seeing the efficiency report for October, Fuller
believed that he was shorted 33 hours and that this resulted in a lower efficiency rate. He
complained to both Hogan and Fuller. Branning looked into the matter and discovered that
Fuller’s efficiency rating was above the acceptable level standard for that time period and
therefore he did not fully resolve the issue of whether Fuller’s rating should have been higher.

I reject Hogan’s testimony that so long as efficiency ratings remain above the acceptable
level there is no effect on employees’ pay. Branning flatly contradicted this testimony and
Respondent’s own brief indicates to the contrary. This is another example of Hogan’s testimony
simply being fabricated.

I conclude that Respondent did not fully investigate or resolve Fuller’s issues with his
October efficiency rating.

12. Leave requests

On about November 8 Branning posted a memo that read:

If you want to take vacation, you will need to turn in your vacation slip 2 weeks in
advance or you get no vacation. Personal time needs to be turned in no later than 1
week in advance. Sick time can be used anytime, if out more than 3 days you will need a
doctor’s excuse. There are no exceptions.

Hayes confirmed that there were no rigid notice requirements under his tenure.
Nonetheless Respondent contends that the notice simply repeated existing policy. In support of
that contention it points to page 19 of the employee handbook. But nothing there provides for
the advance notice set out in Branning’s memo.

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13. Chock block warning

On November 29, de Dios assisted Fuller in placing a truck in Fuller’s work bay. De
Dios placed a chock block behind the right rear tire and Fuller checked to be sure it was in
place. Fuller then jacked up the front of the truck and began working on the engine. De Dios
then took a photograph of the vehicle. Fuller and de Dios had begun taking photographs of the
trucks they worked on as a precaution for what they feared might be unwarranted discipline
taken against them. Later in the day as he was preparing to lower the truck Fuller made a
safety check and noticed that the chock block had been removed and tossed in the back of
truck. He replaced the chock block and then lowered the truck.

That same day Branning called Fuller to his office. Rubio and Orola were present.
Branning told Fuller that he was writing Fuller up for a safety violation for not having chock
blocks in place; Branning said he had photographs and witnesses. Fuller protested that he had
photographs that would show that the chock block was in place when he first positioned the
truck. Fuller and Branning then made a bet that if Fuller produced the photographs Branning
would pay Fuller $100 and Fuller would not be disciplined, but that if Fuller could not produce
the photographs Fuller would be fired.

Fuller provided great detail concerning the events of that day. He testified that after the
meeting with Branning he returned to the work area only to find that de Dios had left for the day.
He ran out and tried to catch de Dios in the parking lot but Fuller was unsuccessful so he
returned to Branning’s office, explained that he could not have the film developed that night and
asked for a few hours of personal time the next day to get and develop the film. Branning
agreed. Branning then thought about the bet overnight and changed his mind and decided to
discipline Fuller regardless of any photos Fuller might have. The next day, as Fuller was
punching in, Branning asked Fuller to come to his office. Branning said that he had talked to
Jeremy Frank who advised Branning to give Fuller the warning notice. The warning notice read:

Larry Fuller, you are being written up for unsafe work practices. On the afternoon of 11-
29-2005 you were seen working on #JH6178T with no [chock] blocks under the rear
tires. You had the front of the truck jacked up off the ground with the jack stands under
the truck but no blocks behind the tires. The truck is sitting on a slope. This is a major
safety violation on your behalf and will not be tolerated. This action was witnessed by
me (Robert Branning) and by John Rubio and pictures were taken of your actions.

Fuller signed the noticed under protested and wrote that the chock block was installed by
Herman de Dios. A photograph of the truck with the chock block in place is in evidence.

Fuller gave Hogan a written account of the incident. He wrote:

Robert [Branning] showed me a picture that he had taken of the truck with the wheel
chock missing from behind the rear wheel and laying in the van box. I indicated that the
wheel chock was in place before the work was commenced and that I had taken photos
and had a witness who could possibly verify that the chock was in place throughout the
day. Robert could not believe that I had taken any pictures and reiterated this many
times. I then stated “This whole thing is B.S. and I will bet you $100.00 that I did take
pictures.” Robert then asked if I would stake my job on it. I said “yes.” He indicated that
if I could produce the photos, he would tear up the warning and give me $100.00. I said
to John Rubio and Oscar Orola “You guys are my witnesses.” Robert stated that I could
take some time off the next day to get the film developed. If I did not have the photos to
prove my innocence, then I agreed to be terminated from U-Haul per Robert Branning.

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The following morning, while I was punching in at the time clock, Robert was standing
nearby and told me to come into the office. Robert stated that he had spoken to Jeremy
Frank of the head office in Phoenix the prior evening and indicated the warning slip was
not to be torn up and that a copy was to be given to me. I ask[ed] Robert if I am going to
be terminated. He said “no.” I was never given the opportunity to prove my innocence.
. . .

Oscar [Orola] (scheduler) assigned truck #JH6178T to me at 10:30 A.M. to install
an ignition switch. The ignition switch was missing and upon installation of the new
switch the starter would not engage. Diagnosis determined that the starter and the
starter relay solenoid were inoperable. I ordered the parts which arrived at
approximately 2:00 P.M. The truck was in the front parking lot so I acquired the fork lift
and pushed the truck with Herman d[e] Dios steering it to the outside of my bay.
Herman installed a wheel chock behind the right rear wheel and a block of wood in the
front of the same wheel. I then raised the front end to allow access to the starter and
installed jack stands. Herman and I take photos of the vehicles we work on so in the
event we need to refer back to them for various reasons. We did take pictures of truck
#JH6178T before commencement of the repairs that clearly shows that the wheel
chocks and jack stands were installed. . . .

I completed the job at approximately 3:45 P.M. before lowering the truck. I
performed this normal procedure which is to ensure the emergency brake is on, the unit
is in gear and all wheel chocks are in place. I noticed the wheel chock was missing from
the right rear wheel and found it in the rear of the van box. I reinstalled it behind the
right rear wheel; lifted the front end of the truck; removed the jack stands and then
lowered the truck. At 4:15 P.M. Robert Branning paged me to the office where John
Rubio and Oscar [Orola] were in attendance. Robert picked up a slip from one of the
desks which turned out to be a warning slip. . . . He commenced reading the slip
indicating that I had violated one of the company’s safety standards by not chocking the
rear wheels. . . . .

After Fuller gave him the description of the events surrounding his warning notice,
Hogan looked into the matter. He spoke to Branning and Orola who confirmed that the chock
block was missing. De Dios, however, told Hogan that the chock block was in place and the
photographs showed the chock block in place.

The facts in this section are based on the credible testimony of de Dios and Fuller,
including Fuller’s detailed, written description of the events. I conclude that Fuller would not
knowingly work on a raised truck without chock block protection. When asked whether he
actually saw anyone remove the chock block Fuller testified that he did not, but then
volunteered “[t]hey would have a wrench around their neck” if he had seen them do so. He
explained:

Because that’s a safety – that’s a safety aspect, and anybody that would cause a safety
hazard, I wouldn’t put up with it. I mean there would be a war because I’m working
under a 22,000 pound truck and somebody is pulling out a safety stop. It’s not a good
thing.

Fuller’s demeanor while giving this testimony was sincere and convincing. De Dios had no
direct stake in this event and he corroborated Fuller’s testimony. Respondent challenges the
credibility of Fuller and de Dios over the fact that they testified that photographs were taken of
almost all the vehicles they worked on, but only a handful of photographs were turned over to

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Respondent pursuant to its subpoena. However, de Dios testified many of his personal items,
including the photographs, were stolen from his truck. Importantly, de Dios’ uncontradicted
testimony is that he reported the theft; Respondent did not delve into the nature of the report.
Respondent also cites several instances where it appears that de Dios was confused or giving
contrary testimony. But I note that those instances largely occurred in response to questions
asked by the General Counsel that, in context, could cause confusion.

Respondent called Orola as a rebuttal witness; he did not testify concerning these
events.

According to Branning, he was in the shop and noticed that the truck assigned to Fuller
did not have a chock block in the back of the rear tire.8 The front of the truck had been hoisted
in the air and was sitting on jack stands. At that moment Fuller was under the truck working on
it. Branning did not immediately order Fuller from underneath the unsafe vehicle. Instead, as
soon as Branning noticed this he “grabbed” shop foreman John Rubio and they took
photographs of the vehicle. Branning just happened to have a camera with him. Branning
testified Rubio then asked Fuller to come out from under the truck; Fuller claimed that there was
a chock block in place but someone must have removed it because the chock block was laying
in the back of the truck. Branning went to his office and decided to discipline Fuller. In my view,
the likelihood of Branning walking around the shop with a camera and just happening to notice a
missing chock block is remote, to say the least. And instead of first asking the endangered
mechanic to remove himself from the dangerous situation under the truck, Branning “grabbed”
someone as a witness and then photographed the situation before calling the mechanic from
under the truck. Branning’s testimony contributes to my conclusion that Fuller was set up by
someone who removed the chock block and that Branning knew or should have known this.

14. Ban on cameras and more

After Fuller told Branning and Hogan of the photographs involving the chock block
incident described immediately above, Branning called a meeting of the employees and
required the employees to sign the following memo:

There are to be no cameras, camera phones, recorders or listening devices on U-Haul
property at any time regardless of your position at the shop, unless specifically
authorized by the shop manager. This action is being taken immediately to help
safeguard any and all U-Haul trade secrets, materials, books, etc. I do understand and
agree to the terms of this memo and I understand that if caught in my possession I will
be terminated immediately.

Hayes again credibly testified that there was no rule against bringing cameras into the shop; to
the contrary he and other employees took pictures of employees and their “work environment”
at birthday celebrations, when employees were departing, and the like. There is no evidence
that Respondent had prohibited the presence of recorders or listening devices on its property
before this time.

8 Branning admitted that “I’ve seen people working on a truck without chalk blocks” and that
they were not given warning notices. After he realized what he had said Branning backtracked
“I will clarify that. The times that I have been told by other employees that someone was not
using chalk blocks by the time I got over there [were] chalk blocks under the truck.” This is
another example of why I have concluded that Branning’s testimony is not credible.

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According to Hogan, he became concerned when he learned that Fuller had taken
photographs in the shop because that area has trade secrets and no cameras are allowed
there. Hogan claimed that there was an existing no-camera policy that applied across the board
to everyone with the exception that the shop manager may take photographs of vehicles outside
the shop for insurance purposes. When asked whether he was aware that Branning had taken
photographs of the vehicle inside the shop, Hogan responded “I do not recall that, at this time. I
do not --.” The equivocal nature of Hogan’s response, his unconvincing demeanor while giving
this testimony, and the inherent implausibility of this testimony compel me to discredit it and
adds to my conclusion that Hogan was generally not credible.

15. Holiday leave

On December 13, Fuller submitted a request for personal leave for December 23 and
30. Branning denied the request without giving Fuller a reason for doing so. The next day
Fuller submitted another request, this time for personal leave on December 27 and January 3.
This request too was denied by Branning without explanation to Fuller. At the hearing Branning
testified that he denied Fuller’s requests because three other employees had already requested
those days off. But records show that Millito Villados requested off for December 27, Dexter
Smith requested off December 23 to January 1, and William Tyler requested off from December
30 to January 10. In sum, one other employee had requested time off on each of the days that
Fuller requested. There is no evidence that Respondent had a policy or practice of allowing
only one employee to take personal leave per day, especially around the holiday season, nor is
there evidence of a practice or procedure of granting time off to the person who first asks for it.

When asked why the prior requests compelled him to deny Fuller’s request, Branning
explained that trucks should be out of the shop within nine weeks and that there were a number
of trucks that needed engine work and were nearing the nine-week period. However, no
records were produced to support this contention either.

These shifting and unsupported explanations lead me to infer that some other reason
prompted the denial of time off.

16. Fuller installs a used part

On December 21 Branning gave Fuller a warning notice that read in pertinent part:

You ordered a new rotor & cap for the distributor and you broke the new rotor while
trying to install it. Instead of getting another new rotor you put on a[n] old rotor on the
engine which caused the engine to run rough. Also by claiming on your paper work that
you replaced the distributor rotor with a new one when you actually installed an old rotor
is considered paper hanging.

“Paperhanging” is the term used to describe a situation where a mechanic claims to have
installed a part but in fact did not do so. Fuller admitted that he broke the part, which is
common and by itself of little concern, and installed a used rotor instead of obtaining a new one.
He also claimed that no one told him that he could not install good used parts to replace new
parts that he broke. But the fact remains that on the paperwork Fuller completed he indicated
that he had placed a new, rather than a used, part on the vehicle.

The General Counsel argues that there was no policy forbidding the use of good used
parts and it does appear to be the case; when no new parts are available UHN employees could
use used parts. But that is not the situation here, where new parts were available. The General

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Counsel argues that Branning’s reference to paperhanging is unjustified and therefore indicates
a discriminatory intent. However, although Fuller did not engage in paperhanging in the sense
that he charged for work he did not do, Fuller did indicate that he had installed a new part when
in fact he had not.

17. Changes in health coverage

Sometime before November 18 Respondents notified employees on changes in their
health insurance plan to become effective in 2006. The changes were announced on letterhead
bearing the names Amerco, U-Haul, Oxford, Republic Insurance Company, and Amerco Real
Estate Company and was signed by James H. “Butch” Greer as “Vice President U-Haul Human
Resources. It began:

Dear System Member:

Thank you for being a valuable member of the U-Haul team! The individual
contributions that you make on a daily basis have a significant and positive impact on
the company’s success.

U-Haul appreciated your efforts and cares about your well-being and that of your family
while being responsive to changing needs. We are committed to providing an excellent
compensation and benefits package that provides value and security for you and your
family. As many of you are undoubtedly aware, health-care costs over the past five
years have increased dramatically. Employers across the U.S. have had to pass these
costs along to their employees. AMERCO has resisted following that lead and is
pleased that in 2006, there are minimal changes to the AMERCO Medical Plan (AMP)
that may impact your out-of-pocket expenses.

The bulletin announced that U-Haul had opted to take advantage of an Internal Revenue
Service ruling concerning participants in the Pretax Health Care Spending Accounts and
Dependent Care Spending Accounts concerning an extension of the time during which money in
those accounts must be spent. The bulletin indicated that if the employees had questions they
were free to call the human resources benefit counselors. The bulletin announced the following
changes:

• An increase in the Wellness Program participation fee from $11.50 to $13.50 per
week.
• An increase in the emergency room deductible from $75 to $100 for the AMP
Traditional Option and AMP Choice Option.
• An increase in the co-payments of non-wellness office visits from $15 to $25 for
the AMP Choice Option for the AMP Choice Option.
• The addition of an annual deductible of $500 for inpatient maternity services for
the AMP Choice Option.
• An increase in the deductible for weight loss surgery from $2,500 to $3,000 for
the AMP Choice Option.
• Increases in the minimum and maximum co-payments for preferred brand drugs
from $10 and $100 to $15 and $150 and non-preferred brand drugs from $25 and
$200 to $30 and $250.

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18. Fuller and de Dios are suspended and fired

According to Branning, one day he was looking for a specialty tool in the cabinet next to
Fuller and de Dios’ work bay. He claimed he found a “box in there full of brand new parts.”
There were also “numerous parts laying in the back of the cabinet.”9 The cabinet was
accessible to everyone in the shop and at that time there were about 20-21 mechanics working
in the shop. Branning concluded that someone was hiding the parts. Branning took the parts
from the cabinet and photographed them. Branning also recognized Fuller’s and de Dios’
handwriting on several of the parts he found in the cabinet. The parts Branning claimed he
found10 in the cabinet were:

• Three sets of intake manifold gaskets for a V-10 engine.
• Four wiper blades.
• One exhaust bracket hanger.
• One power steering pump hose.
• Two Toyota distributor caps.
• Four engine belts.
• One set of fuel return lines.
• Twelve marker lights.
• One dull lens cover.
• One pigtail kit.
• One relay circuit.
• Two gaskets for oil coolers.
• Two splash shield rods.
• Three U bolts.
• One turn signal assembly.
• One coil pack.
• Two dust cover boots.
• One set of O-rings.
• One hood lock.
• One temperature sensor.
• One Toyota door window handle.
• One ramp lock.
• Two cambers.
• One transmission Speedo lock.
• One plug.
• One battery hold-down rod.
• Eighteen spark plugs.
• One intake manifold gasket for a 454 Chevrolet engine.
• A box of six head bolts for a Toyota engine.
• One flasher unit for a GMC truck.
• One brake diode for an International truck.
• One windshield washer regulator for a Chevrolet.

9 Branning also found a pillow and blanket in the cabinet. Fuller acknowledged that the
pillow and blanket are his, he credibly testified that he used them for work purposes.
10 Because of my ultimate resolution of this matter I need not resolve the contention made
by the General Counsel that Branning did not find all these parts in the cabinet or the
consequent conclusion that Fuller and de Dios were set up by Branning.

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• One full set of exhaust manifold gaskets.
• One knock sensor.
• One cam shaft sensor.
• One O-2 sensor.
• One EGR valve.
• One straight connector.
• Three bags of exhaust manifold studs.
• One 90 degree elbow.
• Three exhaust manifold gaskets.

The next day he gave each part number to a support staff employee who then pulled up all the
reports pertaining to the part numbers for the preceding two years. Those reports show each
time that part had been ordered and placed on a truck. The truck number was then used to
identify who worked on the truck and supposedly placed that part on the truck. Branning
acknowledged that many of these parts are used regularly by all mechanics and so it was
impossible to trace them back to any individual. He also acknowledged that he could not tell if
some of the parts were operable until after they had been tested and he had not tested any of
the parts because most were in brand new boxes or packages.

Branning reviewed those reports and concluded that parts could be traced to vehicles
that Fuller and de Dios had worked on; Branning further concluded that Fuller and de Dios were
“paperhanging”. Branning did not consider the possibility that the part could have arrived in the
shop other than through UHN inventory, although he indicated that for a majority of the parts he
found in the cabinet he could find no record that UHN ever ordered or dispensed them.
Branning admitted that new unused parts sometimes arrive on trucks that had been sent to an
outside vendor for repair.

At the hearing on two occasions Branning was unable to explain how he was able to
conclude from the reports he relied on that Fuller and de Dios had been paperhanging
Branning. On those two occasions Branning testified that Fuller and de Dios had engaged in
poor work performance instead. I conclude that the “poor performance” assertions were made
up after the fact when it became apparent that there was no connection with paperhanging.
In its brief Respondent summarizes Branning’s testimony as connecting five items from the box
in the cabinet to Fuller: oxygen sensors, crankshaft sensors, knock sensors, exhaust manifold
gaskets, and head gaskets. For example, one of the parts was a knock sensor. The reports
showed that the part had been used only twice in the last two years, both on trucks worked on
by Fuller.

Branning suspended Fuller on January 9 “pending the outcome of the investigation into
parts not being put onto trucks and possible paper hanging.”

On January 10, 2006, the day after Branning suspended Fuller for suspected
paperhanging, Branning gave the employees a memo that read:

Any and all new parts that are not being used on the truck that the parts were ordered
for, will be turned back into the parts department immediately. This means once you are
done with your job on the truck and before you turn in your paperwork and before the
truck can move forward, any and all parts will be turned in by you. This is your
responsibility. If you are caught with new parts in your station that have not been put on
the truck and your paperwork has already been turned in, you will be terminated
immediately from employment with U-Haul.

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Branning then called a meeting of the shop employees and told them that he was going to leave
the room and when he came back he did not want any spare parts left in the shop. Bags were
handed to the employees and Branning told them that he did not care what parts they had; he
wanted the employees to place the parts in the bag and drop the bag in the middle of the floor;
he told them that he did not want to know who dropped the bags. Branning admitted that he
collected numerous parts. He did not attempt to match the parts with the shop employees
because he claimed there was no way of tracing those parts because they were so common.
But this is patently false because he made the decision not to try and trace the parts before he
had even seen them. Branning himself cleaned out his tool box and threw away some parts
according to de Dios’ credible testimony.

Branning testified that while investigating the Fuller matter he linked “a couple” of the
parts to de Dios. In its brief Respondent points to three parts it contends Branning connected
with de Dios. First, according to Branning, de Dios ordered intake manifold gaskets for a
remanufactured engine he installed. Branning suspected that remanufactured engines already
came with intake manifold gaskets installed. Branning then emailed someone knowledgeable
with the practice and asked the question; the person answered that remanufactured engines
“usually” come with everything already in place. From this Branning concluded that de Dios had
ordered the intake manifold gasket, had not installed it but claimed he had done so on the paper
work, and that the intake manifold gasket found in the box in the cabinet was the one that de
Dios had failed to install.

Second, Branning found de Dios’ handwriting on a box containing six head bolts;
typically there are 20 bolts per box. Branning concluded that de Dios had ordered a box of 20
but did not install all of them and instead placed the remaining six in the cabinet with his
handwriting on the box. Branning testified that it takes 20 bolts to do the job for which de Dios
had ordered the set of bolts. De Dios testified that the job required only 16 bolts; while this
would not explain how six bolts ended up in the cabinet, it does explain how there could be
loose bolts floating around the shop. Respondent attempts to rebut this point by arguing that if
this was the case, then de Dios violated the rule that requires new, unused, parts to be returned
to the parts department. This argument fails for two reasons. Respondent did not discipline de
Dios for that reason and I have concluded above the employees were told not to return parts to
the parts department if they were leftovers from a kit or box because the computer inventory
program could not process partial returns. I am reluctant to resolve the issue of whether a
Toyota cylinder head job requires the use of 16 or 20 bolts based the weak nature of the
evidence in the record on this subject. But I as I describe more fully below in the legal analysis
of this decision, Respondent bears the burden on this issue. The foregoing description
assumes that the bolts found in the cabinet were new and not used parts. Branning and
Georgie testified that the bolts looked new, Fuller testified that they looked used, and de Dios
testified that he could not tell if they were new or used. The bolts, as well as all of the parts
Branning claimed to have found in the cabinet, are in evidence and from my examination of the
bolts I am unable to reach any conclusion either.

Third, Respondents point to the brake rectifier diode. However, the paper work prepared
by de Dios indicates that he did not install that part. Respondents concede there in no evidence
to support a conclusion that de Dios had been paperhanging concerning this part. Respondents
again seek to save the day by now arguing that de Dios should have returned the part to the
parts department. However, the evidence is clear that de Dios was disciplined for allegedly
paperhanging and Respondents after the fact attempt to find other reasons for his termination
merely supports the inference that an unlawful motive was the real reason.

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Branning testified that because he had suspended Fuller for possible paperhanging he
suspended de Dios on January 23 for the same reason. On January 31, Fuller and de Dios
each came to the facility. Branning told each he was fired for paperhanging. Branning’s
investigation did not include talking to Fuller or de Dios to gather information from them.

19. Mendoza is fired

The Department of Transportation requires that a sticker be placed on each truck to
certify that it has been properly inspected. There are several layers of employees who are
responsible for placing those stickers on the vehicles. According to Branning, when the vehicle
is pre-inspected and the DOT sticker is missing the pre-inspector puts the sticker in place after
performing the appropriate inspection. Branning did so when he did pre-inspections before
becoming shop manager. Next, as Respondent indicates in its brief, “The Work Orders that the
mechanics complete (UHN Ex. 23) require, at item 92 on page 15, that the mechanic must affix
the DOT sticker.” For example, as set forth in more detail below, on January 18 Branning gave
de Dios and Edwin Benito each a warning notice for failing to place a DOT sticker on a truck
after they had completed performing preventive maintenance. Finally, if the DOT sticker is still
missing by the time that the vehicle reaches final inspection, the post inspector is required to
attach the sticker. The post inspector also affixes a safety certification sticker that signifies that
the vehicle has passed UHN’s own safety inspection. As indicated above, Mendoza worked as
a post inspector.

On about January 23, a local television news station rented one vehicle from the Decatur
rental facility and three more vehicles from other UHN rental facilities. The news station did an
investigative report concerning the safety of vehicles. Their report claimed that there were
many safety concerns on each of the trucks. Hogan prepared a point-by-point response dated
January 31. One of the trucks covered by the report was DC0015R. Records show that
Mendoza passed the truck, but on June 6, almost eight months earlier. Hogan’s report
conceded that this truck had certain shortcomings such as low tire pressure, seeping fluids, and
a burnt out tail light. But these shortcomings could not reasonably be traced to Mendoza and
UHN made no effort to do so. Significantly, there is no evidence that UHN disciplined anyone
for failing to correct these safety matters. However, among the safety concerns was the
absence of current DOT and safety certifications; Hogan testified that he held Mendoza
responsible for this matter. The news report was aired after Mendoza was terminated.

Branning played a limited role in the news investigation. Hogan asked Branning to
respond to certain questions the reporter had raised and he did so on January 28. In that report
Branning seemed eager to blame the shortfalls on the post inspector despite concluding;

Why these trucks were rented out, I don’t know. The Centers are to do a safety
certification on each of their rotation trucks every 30 days and they are to check the truck
out after every rental to make sure there are no problems found. If they find a problem
with the truck it is to be placed in the DET (downed equipment tracker) and not be
rented.

At trial Branning described the rental centers responsibility as being “just like a post inspector.”
As far as the record in this case shows, UHN did not investigate or discipline anyone concerning
why the rental centers allowed these trucks to be rented.

Branning testified that part of his job as shop manager is to inspect at least two trucks
per week after they have passed final inspection. He did so on January 31, 2006, and
discovered that one truck had 15 safety violations and the other had 11 violations yet Mendoza

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had passed both trucks. If indeed Branning had such a practice then it follows that Branning
had inspected many trucks passed by Mendoza in the months prior late January and found that
Mendoza had been properly performing his job because there is no evidence to conclude
otherwise. Branning testified that he then inspected six more trucks and discovered that they
lacked DOT stickers.

On February 1 Branning talked to Mendoza in Branning’s office; Dexter Smith was
present. Branning explained to Mendoza that what he had found was unacceptable and read
the written warning that he had prepared concerning the two trucks he had inspected the day
before. The prepared warning notice reads:

Victor Mendoza your actions over the past year have placed a very large burden on U-
Haul because of your inaction to perform your job correctly and satisfactorily. You as
post-inspector have a great responsibility to make sure every U-Haul truck that comes
out of the repair shop is safe & our customers are safe when they rent U-Haul trucks.
You failed to comply with U-Haul policies & procedures on the safety of every truck in
the fleet that you have inspected. This is unacceptable behavior and it will not be
tolerated. I personally inspected two trucks that finished and found several safety issues
on these trucks and no current DOT stickers. . . . I performed a final inspection & safety
cert. and these trucks did not pass but you passed them.

I note that there is no mention in the prepared warning notice concerning any of the trucks
involved in the news investigation or the six trucks Branning allegedly also inspected . Mendoza
replied that it was not his fault. Branning asked him to explain and Mendoza claimed that he
was following the direction of Fuller and de Dios to get the trucks out of the door no matter what.
Branning replied that if Mendoza would have notified him immediately he would have terminated
Fuller and de Dios on the spot and Mendoza’s job would not be in jeopardy. Branning ended
the meeting with Mendoza by firing him. Branning did not credibly explain what made him
decide to fire Mendoza rather than merely give Mendoza the written warning that he had
prepared.

The facts in the preceding paragraph are based on a composite of the credible testimony
of Smith and Branning. Mendoza disputed some of these facts described above and I now
explain why I do not credit his testimony on this matter. Mendoza testified through a Tagalog
interpreter. He testified that Branning called him into the office and told him he was fired
because he did not do the job he was supposed to on two trucks. Mendoza testified that he
could not remember anything more of the meeting because “my mind was already confused”
after he was told he was fired, but he denied that he told Branning that Fuller and de Dios had
asked him to pass trucks. He claimed that Branning told him that he was a good employee and
he was sorry for this. Mendoza denied that anyone else was present for this meeting. At the
hearing Mendoza claimed that many mechanics, including de Dios and Fuller, asked him to
pass trucks but he did so only with the permission of a superior. However, Smith testified that
he was present when Branning talked to Mendoza on February 1. He heard Branning tell
Mendoza that Mendoza was being fired because Mendoza was not putting the DOT stickers on
the trucks and was not safety certifying the trucks correctly. Mendoza said that the guys in the
shop were telling him to pass the trucks; he specifically mentioned Fuller and de Dios as
employees who were pushing him to pass the trucks. At the time of the trial Dexter Smith no
longer worked at UHN, but he had worked there as an emergency road service specialist during
2005 and before. Based on the Mendoza’s inability to recall the content of the February 1
meeting and Smith’s credible corroboration of Branning’s testimony, I conclude that Mendoza
did tell Branning that Fuller and de Dios were pushing him to pass the trucks.

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I now address a factual issue raised by the General Counsel and explain my reasons for
rejecting the General Counsel’s argument. The General Counsel contends in his brief that:

Mendoza informed Branning that he had run out of DOT stickers to put on trucks.
Branning told him to talk to Rubio. . . Mendoza never received new stickers from Rubio
or anyone else. . . . Instead, Orola instructed him to simply use the old, out-of-date
stickers, which Mendoza did.

Branning admitted that in December Mendoza told him he was out of DOT stickers and
Branning sent him to John Rubio to get the stickers; Branning did not know whether Rubio gave
Mendoza the stickers. But the questions asked and answers given concerning the DOT
stickers affixed by Mendoza have resulted in a confused record. Mendoza testified that in mid
2005 “I didn’t have any more stickers.” Mendoza told Branning “if those stickers that they don’t
have the stickers the previous years, I asked him if I should put sticker on it and I need those
stickers and my stickers for the year 2006 and I don’t have it yet and I only have a small amount
of stickers for 2006.” Mendoza then claimed that he spoke about this with Branning in January
2006. In any event, Branning told Mendoza to see Orola who, according to Mendoza said that
they did not have stickers for the years 2003 and 2004. Mendoza asked for more 2006 stickers
because he only had a few left, but Orola said that more 2006 stickers had not arrived from the
main office. Mendoza then stated that he ran out of 2006 stickers, but then stated that he had
just enough stickers for the month of January. Then when I questioned Mendoza, he
acknowledged that he never ran out of DOT stickers. Mendoza testified that he put 2005
stickers on trucks in 2006 because Orola told him to use the 2005 first. Mendoza was asked
when he put a 2005 sticker on a truck in 2006 whether he “punched” 2005 on the sticker despite
the fact that there is no evidence that the DOT stickers needed to be “punched.” I asked that a
DOT sticker be placed in evidence but this was not done. I cannot conclude that the record
supports the assertions made by the General Counsel in his brief on this matter.11

Concerning the reasons for Mendoza’s termination, Branning testified that the sole
reason he fired Mendoza was because of his failure to put the DOT stickers on trucks, but then
he indicated that one of the two trucks he inspected did have the DOT sticker and he fired
Mendoza because one truck had 15 safety violations and the other had 11. Branning then
testified that Mendoza was fired “Mostly, mainly the DOT stickers and the safety certification.”
When asked whether the news report played any part in Mendoza’s termination Branning
answered:

It kind of was. . . . Well them trucks that were inspected by the media, it was, Victor was
in the position at the time to do and complete the final inspections on the truck and place
DOT stickers on them.

11 Beginning October 2004 Mendoza kept his own list of the dates, vehicles numbers,
whether he passed the vehicles, whether he passed the vehicle despite problems upon his
supervisor’s approval, whether he failed the vehicles and if so the reasons why. Mendoza
testified that the list covered all the vehicles he had worked on during that time period, but this
testimony was quickly impeached when he was shown a work history and his signature on for a
truck he worked on that did not appear on the list. Beginning in January 2005 check marks
appear on the lists next to all the vehicles that were passed. Mendoza testified that the check
marks meant that he placed the DOT sticker on the vehicle. Before that time, Mendoza
explained, when he passed a vehicle it meant he had affixed the DOT sticker. At the trial I ruled
that I would not consider the checkmarks on the list as evidence that Mendoza did place DOT
stickers on every vehicle.

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As indicated above, Branning testified that he also found six trucks that did not have the
DOT stickers. But at trial when Branning was provided the paper work for two of the trucks, he
admitted that Mendoza was not directly tied to those trucks. Branning explained that because
the trucks had been in the shop many times he assumed Mendoza must have been the final
inspector who failed to put on the DOT stickers. He admitted, however, that final inspectors
other than Mendoza were likely implicated by such assumptions as well. Branning explained
that UHN could not provide the work histories for the remaining four trucks because they had
been deleted from the computer system; he speculated that they may have been put for sale in
which case the histories are deleted from the computer system. Yet the policy bulletin
governing record retention does not provide for the automatic record deletion described by
Branning; rather it appears those records are to be retained for one year. Branning also
acknowledged that the post inspector is not the only employee responsible for placing the DOT
stickers; the pre-inspector and mechanics have that responsibility also. But when Branning
found the six trucks without the DOT he placed sole blame on Mendoza; he did not attempt to
identify the pre-inspectors or mechanics that did not put on the stickers.

20. De Dios’ earlier warning.

Before de Dios was suspended for allegedly paperhanging Branning gave him a warning
notice on January 18 that read:

You Herman de Dios completed a [preventive maintenance] 15 service on the truck #
TM8812W. On the [preventive maintenance] booklet you marked #92 as completed.
After reviewing the truck I noticed there was not a DOT sticker on the truck for the
current inspection. This DOT sticker is mandatory on every truck. Your failure to comply
with U-Haul policy is grounds for your immediate termination. This is your only written
warning for this offense.

That same day Branning gave Edwin Benito a warning notice for failing to place the DOT sticker
on four trucks.

21. UHN’s pattern of discipline under Shop Manager Branning

Aside from the discipline described above Branning gave Michael Sukasian four warning
notices for tardiness. Branning gave Rolando Basilio a warning notice for a “major safety
infraction” for passing a truck with a tire inadequate tire tread. On January 18, 2006, Branning
gave Edwin Benito a warning notice for a “very big safety issue.” The notice disclosed that
Benito passed a truck that had zero tread depth on one tire and had a nail in another tire. On
February 20, 2006, after having terminated Fuller and de Dios for allegedly paperhanging,
Branning gave James Strickland a warning notice using the wrong bolts and “You also claimed
that you replaced the brake shoes on this trailer but there are no brake shoes allocated to this
trailer.” Earlier Strickland had received a warning notice for clocking in six minutes earlier than
allowed and for dumping brake fluid in the drain at the front of Strickland’s bay. The latter notice
pointed out this violated OSHA regulations. Finally, Robert Ganal got a warning notice for
forgetting to clock out. This pattern of discipline shows that the alleged discriminates were the
only employees fired during this time period and they bore the brunt of the discipline.

C. Single Employer Issue

The test to be applied in determining whether two separate legal entities constitute a
single employer is set out fully in Judge McCarrick’s decision and will not be repeated here. As

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noted above, I limited the evidence on whether UHN and UHI are a single employer to
significant changes bearing on this issue that have occurred since October 14, 2004. Above I
set forth the evidence on this matter and concluded as a matter of fact that little of significance
has changed since October 14. Rather, the evidence shows and I conclude that UHI and UHN
are a single employer.

D. The Alleged Violations

1. Section 8(a)(1) allegation

The complaint alleges that Respondents violated the Act in about October 2005, by
threatening to withhold wage increases from employees because of their union activities. I have
concluded above that Hogan told de Dios that he cannot do anything about a pay raise because
it was frozen because of the union activity. An employer may not tell employees that it cannot
grant a wage increase because the employees engaged in union activities. Earthgrain Baking
Cos., 339 NLRB 24 (2003).

Citing Musicians Local 79 (Jimmy Wakely Show), 202 NLRB 620, 622 (1973),
Respondents argues that the statement made by Hogan was insignificant. That argument might
have some merit if Hogan’s statement was the only matter alleged to be unlawful and
Respondents otherwise had no history of violating the Act. In the context of the violations found
in this and other cases involving Respondents I reject this argument. Respondents violated
Section 8(a)(1) by telling employees that it cannot grant a wage increase because the
employees engaged in union activities.

2. Section 8(a)(3) and (5) allegations

In deciding whether an employer has violated Section 8(a)(3) and (1) of the Act by
disciplining or discharging employees because they supported a labor organization I use the
analytical framework described in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 800
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982); NLRB v. Transportation Management, 462
U.S. 393 (1983). I have already concluded above that Fuller, de Dios, and Mendoza supported
the Union and Respondents knew this. Respondents have shown its animus toward employee
support for the Union by committing the long list of violations found by Judge McCarrick. In
addition, in this case I have concluded that Respondents again violated the Act by telling
employees that it cannot grant a wage increase because the employees engaged in union
activities.

The complaint alleges that all the Section 8(a)(3) allegations also violated Section
8(a)(5) in that working conditions of the unit employees were changed without first giving notice
and an opportunity to bargain to the Union. The Board has determined that Respondents had
an obligation to recognize and bargain with the Union. Respondent has admittedly failed to do
so. An employer may not change working conditions without first giving the Union an
opportunity to bargain over the changes. NLRB v. Katz, 369 U.S. 736, 743 (1962). However,
those changes must be material, substantial and significant. Flambeau Airmold Corp., 334
NLRB 165 (2001.

a. Rule changes

In this section I examine allegations in the complaint concerning work rule changes.
Except as noted below, I conclude that Respondents imposed harsher working conditions on
unit employees. I have already concluded that unit employees had selected the Union as their

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collective bargaining representative, Respondent was obviously aware of this fact, and
Respondent has shown a willingness to violate the law to impede the employees’ right to select
the Union. I further note that Respondents has imposed these harsher conditions at a time when
it continued to challenge the results of the election. I therefore conclude that the General
Counsel has met his initial burden under Wright Line. Below I determine, on a rule-by-rule
basis, whether Respondents met its burden under Wright Line that it would have issued the
rules even if the employees had not supported the Union and selected it as their bargaining
representative. Peter Vitalie Co., 310 NLRB 865, 871 (1993). I also determine, on a rule-by-
rule basis, whether the rules changes violated Section 8(a)(5) and whether Respondents met
their burden by showing that it would have disciplined the employees even if there had not been
any unlawful rule changes. Great Western Produce, 299 NLRB 1004 (1990).

I have described above how Branning closed the window to the parts department and
instructed employees not to obtain parts directly from the parts department. I have also
described above how there had been a general prohibition against approaching the parts
department and waiting for parts but that was not strictly enforced and violators were not
disciplined.12 Respondents argue that they merely reestablished a rule that had fallen under lax
enforcement. I reject this argument because Respondents have failed to show that the rule
against approaching the parts counter was ever strictly enforced or that employees were ever
disciplined for doing so. Here, Fuller was disciplined in part for going to the parts counter. Work
rules that can be grounds for discipline are mandatory subjects of bargaining. King Scoopers,
340 NLRB 628, 629 (2003). I turn now to examine whether Respondents have shown that they
would have imposed the harsher conditions even if the employees had not selected the Union.
In this regard Respondents rely on Hogan’s discredited testimony concerning theft. It follows
that Respondents have failed to show they would have implemented the rule even in the
absence of the employee’s union activity. I turn now to examine Fuller’s discipline. It will be
recalled that Fuller was disciplined for twice going to the parts department after having been
verbally warned by Branning the first time. I have also concluded above that Fuller swore at
Branning while they were discussing the matter. Fuller’s insubordination amply warranted the
discipline. I conclude Respondents have shown that they would have disciplined Fuller anyway
even in the absence of the rule. I dismiss this allegation. By prohibiting employees from
approaching the parts department to obtain parts, Respondents violated Sections 8(a)(3), (5)
and (1) of the Act.

I have described above how Respondents changed the practice concerning trash by
requiring employees to empty their trash bins at the end of each work day and how Branning
disciplined Fuller, de Dios, and Mendoza for doing so. Respondent argues that it had always
been the rule that employees had to empty trash daily, but this misses the point. The
employees were disciplined for failing to empty the trash at the end of the work day and that
was a change. By requiring employees to empty their trash bins at the end of the work day and
disciplining employees who failed to do so, Respondent violated Sections 8(a)(3), (5) and (1) of
the Act.

Branning also cut the amount of time employees were given to clean up their work areas
from 30 minutes to 15 minutes. Respondent relies on Branning’s testimony that he observed

12 In his brief the General Counsel argues that Respondent violated the Act by prohibiting
employees from leaving their work bays except under limited circumstances. But there is no
allegation to that effect in the complaint and the matter was not fully litigated. Because the
General Counsel has failed to satisfy his due process obligations to Respondent on this matter,
I decline to rule on the merits of this contention.

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employees cleaning their work areas in 15 minutes and then standing around wasting time for
the remaining 15 minutes. I do not credit this testimony. Branning demeanor was not
convincing, I have described other serious flaws in Branning’s credibility, and his testimony
about this matter lacked sufficient particularity concerning specific instances of problems. By
reducing the time employees are allowed to clean up their work areas Respondent violated
Section 8(a)(3), (5) and (1).

The General Counsel alleges that a number of rules that Respondent issued on about
August 31 are unlawful. But I have concluded above that the rules concerning the daily
emptying of trash and the daily sweeping and mopping of work areas were not new and
therefore not more onerous. I note that there is no evidence that employees were free to violate
these established rules them without incurring discipline. I shall therefore dismiss these
allegations. I have concluded above that employees had been allowed to use the company
phone in the past; the rule issued by Respondents continues to allow use of the company phone
during break and lunch time and at anytime for an emergency. The General Counsel has not
shown that new rule is different from the past practice. That is, there is no evidence that in the
past employees have been allowed to use the company phone during working time in
nonemergency situations. I shall dismiss this allegation also. As part of the package of rules
issued that day Respondents required that the employees have their shirts tucked in at all times;
the practice had been that shirts had to be tucked in when away from the work area. In the
absence of evidence that employees were to be disciplined when their shirts inevitably became
untucked during the course of bending and stretching while working, I conclude that this is a
trivial matter not rising to the level of a violation of federal law. I shall dismiss this allegation too.
Respondents also forbid the employees from eating in the shop area. Before this rule,
employees often ate at a work station or other places in the shop. UHI’s safety manual provided
only that “System members shall not eat or drink in bathrooms or in other areas exposed to
toxic materials.” Employees were reminded at regular safety meetings to wash their hands
before eating; they were allowed to eat in the shop in areas away from toxic materials.
Respondents’ rule was a change from that practice and was more onerous from the employees’
viewpoint. Indiana Hospital, 315 NLRB 647 (1993). By prohibiting employees from eating in
nontoxic areas of the shop, Respondent violated Section 8(a)(3), (5) and (1). Respondents also
forbid the employees from using their cell phones on “company time” unless in an emergency.
Before this rule employees were allowed to use their cell phones during working time. The
employees’ use of a telephone at work is a mandatory subject of bargaining. Advertiser’s Mfg.
Co., 280 NLRB 1185, 1190-1191 (1986), enfd. 823 F.2d 1086 (7th Cir. 1986). Moreover,
Respondents gave Marlon Taylor a warning notice for using his cell phone during working
hours. By prohibiting employees from using their cell phones on company time and disciplining
employees who did so, Respondents violated Section 8(a)(3), (5) and (1).

Respondents gave de Dios, Mendoza, Alberto Quinones and Rolando Basilio warning
notices for eating in front of the facility. I have concluded that employees were allowed to eat in
front of the shop until Branning issued the warnings described above. When viewed in the
context of my earlier conclusion concerning limitations placed on where employees could eat
inside the shop, this was a material change in working conditions and more onerous than the
pre-existing practice. Respondents rely on Hogan’s testimony that he saw employees eating in
front of the shop and told Branning to stop them because it looked unprofessional. But for
reasons stated elsewhere in this decision I am reluctant to credit Hogan’s testimony based
simply on his generalized testimony. He has shown a willingness to create testimony to suit
Respondents’ case and his demeanor was not that of a witness attempting to simply relate the
facts. By prohibiting employees from eating in front of the facility and disciplining employees
who did so, Respondents violated Section 8(a)(3), (5) and (1).

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I have pointed out above that Branning imposed new advance notice requirements when
employees wanted to take vacation time or use personal time. Respondents argue that this was
not a change in working conditions, but I have already rejected that contention. By requiring
employees to give increased notice before they can use vacation or personal time, Respondent
violated Section 8(a)(3), (5) and (1).

Branning also directed that there be no cameras, camera phones, recorders or listening
devices on U-Haul property. This rule was new and it was connected with discipline. Before the
new rule employees were allowed to use cameras to enhance their enjoyment of birthday
events and the like that occurred on Respondent’s property. Respondent relies on Hogan’s
testimony that the rule was implemented to protect trade secrets. He provided no details
concerning how a ban on listening devices was needed to protect trade secrets. He provided
no specific details concerning the nature of any “trade secrets” or any relation to the alleged
secrets and photographing in the shop. I again reject Hogan’s testimony. By banning the use
of cameras, camera phones, recorders, and listening devices in the shop, Respondent violated
Section 8(a)(3), (5) and (1).

As stated above, on January 10, 2006, the day after Branning suspended Fuller for
suspected paperhanging, Branning gave the employees a memo instructing them to return all
new parts ‘that are not being used on the truck that the parts were ordered for” to be returned to
the parts department immediately. It warned employees that if they were “caught” with new
parts they would be terminated immediately. The General Counsel argues that by issuing this
memorandum Respondent violated Section 8(a)(3), (5), and (1). I have described earlier in this
decision that the prior practice required the return of new parts that could be restored on
Respondents’ inventory lists and that new parts that were only part of a package or kit did not
have to be returned. In addition, the new rule provided for immediate termination. Moreover,
this memo is tied to the unlawful discharges or Fuller and de Dios, which I describe below. By
requiring employees to return all new parts to the parts room under penalty of immediate
discharge, Respondents violated Section 8(a)(3), (5) and (1).

The foregoing conclusions show that Respondents issued many rule changes in a
relatively short period of time after Branning took office. Respondents are of course free to
make its operations more efficient as it sees fit, but here there is no credible evidence that
Respondent felt that operations had become lax. Indeed, Respondents defend against most
these changes by arguing that they were not changes at all but mere restatement of existing
policy. The nature, scope, and timing of these changes, together with the absence of credible
evidence to explain why they were made, lead me to conclude that they were imposed as a
crackdown on employees because they supported the Union. This, in turn, strengthens my
conclusions above when I examined that rules on an individual basis.

b. Fuller, de Dios, and Mendoza

In the preceding section I focused on resolving the allegations in complaint that centered
on changes in rules. In those instances where I concluded that the rule changes were unlawful,
I generally also concluded that warning notices issued pursuant to those unlawful rules were
themselves unlawful. It was therefore unnecessary to decide whether the warning notices
issued to Fuller, de Dios, and Mendoza also violated Section 8(a)(3) because Respondents
sought to punish them individually for their union activity because the remedy would not be
affected. See Tri-Tech Services, 340 NLRB 894, 895-896 (2003)(and cases cited therein). In
this section I deal with allegations in the complaint where I conclude that no rule change has
been proven. Under these circumstances I must resolve the allegations in the complaint that
Fuller, de Dios, and Mendoza were subject to discipline because they supported the Union.

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In determining whether the General Counsel has met his burden of showing that
Respondents’ unlawful animus was a motivating factor in the various disciplinary actions
Respondents took against the three alleged discriminatees, I have already concluded that the
three alleged discriminates supported the Union and Respondents knew this. I have also
concluded that Respondents have shown their hostility towards the Union and its supporters,
both in this case and the earlier case. I have also pointed out that the discipline occurred at a
time when Respondents were contesting the certification of the Union and thus the question
concerning the representation of the unit employees remained open.

The General Counsel alleges that written warnings given to de Dios and Mendoza on
August 23 concerning the blown engine violate Section 8(a)(3) and (5). I have concluded above
that Respondents seized upon the engine failure as a pretext to discipline de Dios and
Mendoza. It follows that Respondents have failed to show they would have issued the warning
notices to these employees even if the employees had not supported the Union. By giving
warning notices to de Dios and Mendoza, Respondents violated Section 8(a)(3) and (1). I have
also concluded above that Branning invented the requirement that mechanics who install new
engines must test drive vehicles for 20 miles. Both the increased length of time to perform the
20-mile test and the discipline that flows from the failure to do so show the new rule impacted
working conditions. By requiring that mechanics who install new engines test drive those
vehicles for 20 miles, Respondents violated Section 8(a)(5) and (1).

I conclude above that Respondent did not fully investigate or resolve Fuller’s issues with
his October efficiency rating and that the failure to do so could have been to Fuller’s detriment
concerning future pay raised and time off. I conclude the General Counsel has met his burden
of proof under Wright Line. Turning to Respondents’ defense, I have rejected Hogan’s
testimony that efficiency ratings had no impact on working conditions. Hence there is no
credible reason why Respondents failed to fully resolve whether the efficiency report was
accurate. It seems that Respondents would generally want to be certain that those reports were
accurate. By failing to determine whether Fuller’s efficiency report was accurate because Fuller
supported the Union, Respondents violated Section 8(a)(3) and (1). The General Counsel also
alleges that this conduct violated Section 8(a)(5). In his brief the General Counsel states that
Respondents’ past practice had been to fully investigate issues raised concerning the accuracy
of the efficiency reports, but the General Counsel does not refer me to any part of the record to
support this mere assertion. And even if there had been such a past practice, a single deviation
from that practice does not necessarily establish a violation of the duty to bargain. I dismiss this
Section 8(a)(5) allegation.

I have described above how on November 29 Respondents gave Fuller a warning notice
for working under a truck without a chock block in place under circumstances where Branning
knew or should have known that someone other than Fuller had removed the chock block.
Respondent bases its defense on testimony that I have not credited. By issuing a written
warning to Fuller on November 29 because Fuller supported the Union, Respondents violated
Section 8(a)(3) and (1). The General Counsel posits no theory concerning how this incident
violates Section 8(a)(5) and none is apparent to me. I dismiss this allegation.

The General Counsel alleges that Respondents violated Section 8(a)(3) and (1) by
denying Fuller’s requests for leave around the holidays. It will be recalled that Branning denied
two separate requests without explanation. I also concluded that Respondent gave shifting and
unsupported explanations that lead me to infer that some other reason prompted the denial of
time off. I now conclude that Fuller’s support for the Union was the real reason for
Respondents’ denial of his request for leave. By denying Fuller’s request to use personal leave,

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Respondents violated Section 8(a)(3) and (1). The General Counsel again posits no theory
concerning how this incident violates Section 8(a)(5) and none is apparent to me. I shall
dismiss this allegation.

I next turn to the allegation in the complaint that concerns the warning notice given to
Fuller on December 21 when he installed a used part. Fuller admitted that he broke the part,
which is common and by itself of little concern, and that he installed a used rotor instead of
obtaining a new one. I have also concluded that on his paperwork Fuller indicated that he had
placed a new, rather than a used, part in repairing the vehicle. I have rejected the General
Counsel’s arguments that there was no policy forbidding the use of used parts because that
policy applied only where new parts were not available. Here Fuller admitted the conduct and
there is no credible evidence of any change in Respondents’ policy concerning that conduct. It
seems highly unlikely that Respondents would knowingly allow its employees to install used
parts when new parts were readily available. I conclude that Respondents have met their
burden under Wright Line that it would have issued the warning notice to Fuller even if he had
not supported the Union. I therefore dismiss this allegation.

I next address the allegations concerning the suspensions and discharges of Fuller and
de Dios. Fuller and de Dios were suspended and then discharged allegedly for paperhanging,
but I reject that notion that this was the real reason. Although Branning found scores of parts in
the cabinet, he was only able to connect a few to Fuller and even fewer to de Dios, yet
amazingly he was apparently unable to connect any of the many remaining parts to any other
employee. Respondents’ disparate treatment of Fuller and de Dios is revealed by the fact that
Respondents gave a warning to other employees to return parts to the parts department;
Respondents discharged de Dios and Fuller without any warning. Respondents displayed
indifference as to whether other employees had been paperhanging by allowing them to dump
parts into bags that Branning supplied. For these reasons I conclude that Respondent has not
met its burden of showing it would have suspended and terminated Fuller and de Dios even if
they had not supported the Union. By suspending and then discharging Larry Fuller and
Herman de Dios, Respondents violated Section 8(a)(3) and (1). I dismiss the allegations that
this conduct violated also violated Section 8(a)(5).

Turning to Mendoza’s termination, it will be recalled that Branning linked Mendoza’s
alleged poor performance to the fact that union activities had occurred at the facility and to
Respondents’ 3-year long struggle to defeat the Union. I have already concluded that Mendoza
supported the Union, Respondents knew this, and Respondents have displayed a pattern of
violating the rights of its employees in order to defeat the Union. I conclude that the General
Counsel has met his burden under Wright Line. Turning to address whether Respondents have
shown they would have fired Mendoza anyway, I note that the evidence given by Respondents
for Mendoza’s termination appears to be amorphous. First, as to the four trucks subject to the
news investigation, Branning first attempted to blame Mendoza for the safety problems despite
the fact that it had been months since Mendoza had worked on some of them. Moreover, the
rental centers themselves are responsible for conducting safety inspections each time before
renting the trucks, so they would logically be the starting point in assessing what went wrong,
but there is no evidence that this concerned Respondents; instead the disciplinary investigation
of wrongdoing seemed to focus almost exclusively on Mendoza. Hogan finally admitted that the
only thing he held Mendoza responsible for was the absence of DOT stickers on the trucks, and
then, as Respondents concede in their brief, only “two of the trucks were missing the federally
mandated DOT certification decal. . .” And while Respondents accurately describe the job of
the post inspector as the last line of defense before the vehicle leaves the shop, Respondents
do not address the fact that the rental facilities are the last line of defense before the vehicles
are rented. Finally, I note that none of these four trucks were identified in the warning notice

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that Branning prepared to give Mendoza on February 1. I conclude that while Respondents
tried hard to blame Mendoza for the problems with these four trucks, it succeeded in connecting
him in only a very attenuated manner and even then may not have relied on that connection at
all in firing Mendoza. Next, Branning claimed that he inspected two trucks that Mendoza had
passed and found numerous safety violations. Branning claimed to have randomly selected
these two trucks as part of his practice of checking two trucks per week. Importantly, Branning
did not review the results of his inspection with Mendoza so as to confirm the errors or get an
explanation. Finally, Branning claimed that he also found six other trucks without DOT stickers
on them. But at trial Branning admitted that Mendoza was not directly tied to two of those
trucks! Branning could neither provide the work histories for the remaining four trucks nor
credibly explain the inability to so. Under these circumstances I find it more likely than not that
the allegations of misconduct by Mendoza concerning these six trucks were simply invented by
Branning. Even if Mendoza had failed to place DOT stickers on some trucks, Respondent does
not explain why it was completely unconcerned about the failure of the pre-inspectors and
mechanics to do so on those same trucks. Nor does Respondent explain why Branning
changed his mind and fired Mendoza instead of giving him the warning notice Branning had
prepared. Finally, there is no credible explanation as to why Respondent fired Mendoza for
failing to affix the stickers when only days earlier Branning had merely given warning notices to
de Dios and Benito for failing to do so.

Before reaching a final conclusion on Mendoza’s termination, I examine the impact of
Mendoza’s comments during his discharge meeting that Fuller and de Dios had pressured him
to pass trucks. I note that Respondents do not contend that these comments played any role in
Mendoza’s discharge. Fuller and de Dios were already fired, so these comments played no role
in their terminations. I further conclude that these comments do not warrant depriving Fuller
and de Dios of the normal remedies resulting from their unlawful discharges. Simply because
Mendoza made these assertions does necessarily make them true; Mendoza could have been
trying to save his job. More importantly, Respondents have made no showing that they have
looked into the matter and concluded that they have a good faith belief that Mendoza’s
assertions are true and that they would have terminated Fuller and de Dios based on those
assertions. I note that at the hearing Mendoza claimed that other employees besides Fuller and
de Dios pressured him to pass trucks but that he did not do so without the approval of a
supervisor.

By discharging Mendoza because he supported the Union, Respondents violated
Section 8(a)(3) and (1). I dismiss the related Section 8(a)(5) allegation.

As indicated above, Branning gave a written warning notice to de Dios on January 18 for
failing to place a DOT sticker on a truck he worked on. I conclude the General Counsel has
again met his initial burden under Wright Line. I examine whether Respondents have shown
that they would have given de Dios the warning even if he had not supported the Union. I note
that while it appears that de Dios failed to place the sticker on the truck, Respondents have not
shown that they regularly issue warning notices under these circumstances. Indeed, there is no
evidence that Respondents have ever before issued a warning notice to anyone for failing to
affix the DOT sticker. While Respondents also issued a warning notice to Benito that same day
for failing to place the DOT stickers on trucks, there is no explanation as to why Respondents
decided on January 18 to begin issuing the warning notices. I conclude that Respondents have
not met their burden under Wright Line. By issuing a warning notice to de Dios because he
supported the Union, Respondents violated Section 8(a)(3) and (1). I dismiss the related
Section 8(a)(5) allegation.

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2. Section 8(a)(4) allegations

The complaint alleges that the discipline Respondents imposed on Fuller, de Dios, and
Mendoza was because they testified in the earlier case and thereby violated Section 8(a)(4) and
(1). I apply the Wright Line analysis described above in resolving those allegations. Fuller,
de Dios, and Mendoza did testify in the earlier case and Respondents were obviously aware of
that fact. However, eight other current bargaining unit employees also testified in that case and
there is no evidence that Respondents have retaliated against them for doing so. Significantly,
there is no evidence that Respondents were angry or otherwise displeased by the fact the
employees gave testimony. Because the important element of animus is lacking, I conclude
that the General Counsel has failed to meet his initial burden of showing that the discipline
Respondents handed out to the three discriminatees was motivated in part because they
testified in the earlier case. I shall dismiss those allegations of the complaint.

3. Health insurance changes

I have concluded above that Respondents made changes to its group health insurance
plan. By doing so, Respondent violated Section 8(a)(5) and (1). Millard Processing Services,
310 NLRB 421, 425 (1993).

Conclusions of Law

1. By telling employees that it cannot grant a wage increase because the employees
engaged in union activities, Respondents have engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.

2. By the following conduct, Respondents have engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of
the Act.

(a) Prohibiting employees from approaching the parts department to obtain parts.
(b) Requiring employees to empty their trash bins at the end of the work day and
disciplining employees who failed to do so.
(c) Reducing the amount of time employees are allowed to clean up their work areas.
(d) Prohibiting employees from eating in nontoxic areas of the shop.
(e) Prohibiting employees from using their cell phones on company time and
disciplining employees who did so.
(f) Prohibiting employees from eating in front of the facility and disciplining
employees who did so.
(g) Requiring employees to give increased notice before they can use vacation or
personal time.
(h) Banning the use of cameras, camera phones, recorders, and listening devices in
the shop.

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(i) Requiring employees to return all new parts to the parts room under penalty of
immediate discharge.
(j) Giving warning notices to Herman de Dios and Victor Mendoza on August 23.
(k) Failing to determine whether Larry Fuller’s efficiency report was accurate.
(l) Issuing a written warning to Fuller on November 29.
(m) Denying Fuller’s request to use personal leave.
(n) Suspending and then discharging Fuller and de Dios.
(o) Discharging Mendoza.
(p) Issuing a written warning to de Dios on January 18.

3. By following conduct Respondents have engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.

(a) Prohibiting employees from approaching the parts department to obtain parts.
(b) Requiring employees to empty their trash bins at the end of the work day and
disciplining employees who failed to do so.
(c) Reducing the amount of time employees are allowed to clean up their work areas
(d) Making changes to its group health insurance plan.
(e) Prohibiting employees from eating in nontoxic areas of the shop.
(f) Prohibiting employees from using their cell phones on company time and
disciplining employees who did so.
(g) Prohibiting employees from eating in front of the facility and disciplining
employees who did so.
(h) Requiring employees to give increased notice before they can use vacation or
personal time.
(i) Banning the use of cameras, camera phones, recorders, and listening devices in
the shop.
(j) Requiring that mechanics who install new engines to test drive those vehicles for
20 miles.
(k) Requiring employees to return all new parts to the parts room under penalty of
immediate discharge.

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Remedy

Having found that Respondents have engaged in certain unfair labor practices, I find that
they must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.

Respondents having discriminatorily discharged Fuller, de Dios, and Mendoza, it must
offer them reinstatement and make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of proper offers of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).

Respondents having unilaterally changed working conditions by making changes to its
group health insurance plan I shall order Respondent to rescind those changes, if requested by
the Union, and to make whole the unit employees for any losses they may have suffered in
accordance with Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981), and Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971) with interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987).

Respondents having unlawfully changed working conditions by instructing employees
not to approach the parts counter directly to obtain parts, requiring employees to empty their
trash bins at the end of the work day and disciplining Herman de Dios, Victoriano Mendoza, and
Fuller for failing to do so, reducing the amount of time employees are allowed to clean up their
work areas, prohibiting employees from eating in nontoxic areas of the shop, prohibiting
employees from using their cell phones on company time and disciplining Marlon Taylor for
doing so, prohibiting employees from eating in front of the facility and disciplining Alberto
Quinones, Rolando Basilio, de Dios, and Mendoza for doing so, requiring employees to give
increased notice before they can use vacation or personal time, banning the use of cameras,
camera phones, recorders, and listening devices in the shop, requiring that mechanics who
install new engines to test drive those vehicles for 20 miles, and requiring employees to return
all new parts to the parts room under penalty of immediate discharge, I shall Respondent to
rescind the changes and rescind the warning notices it issued to Fuller, de Dios, Mendoza,
Taylor, Quinones, and Basilio.

Respondents having unlawfully failed to determine whether Fuller’s October efficiency
report was accurate, I shall require that Respondent determine whether the efficiency report
was accurate, correct any error and notify Fuller in writing of the results.

Respondents having unlawfully given Fuller, de Dios, and Mendoza written warnings, I
shall require that Respondent to rescind them.

Because the Respondents have a proclivity for violating the Act, (see U-Haul Co. of
Nevada, Inc., JD(SF)-65-05, September 30, 2005), the serious nature of the violations and,
because of the Respondents’ egregious and widespread misconduct, demonstrating a general
disregard for the employees’ fundamental rights, I find it necessary to issue a broad Order
requiring the Respondents to cease-and-desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357 (1979).

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On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended13

ORDER

The Respondents, U-Haul Company of Nevada, Inc. and U-Haul International, Inc. , its
officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Telling employees that it cannot grant a wage increase because the employees
engaged in union activities.
(b) Failing to determine whether Fuller’s efficiency report was accurate because he
had engaged in union activities.
(c) Giving written warnings to de Dios and Mendoza on August 23 because they
supported the Union.
(d) Giving a written warning to Fuller on November 29 because Fuller supported the
Union.
(e) Denying Fuller’s request to use personal leave because he supported the Union.
(f) Discharging, disciplining, imposing harsher working conditions, or otherwise
discriminating against any employee for supporting [union name] or any other
union.
(g) Making changes to its group health insurance plan without first giving the Union
an opportunity to bargain about the changes.
(h) Instructing employees not to approach the parts counter directly to obtain parts
without first giving the Union an opportunity to bargain about the matter.
(i) Requiring employees to empty their trash bins at the end of the work day and
disciplining employees who failed to do so without first giving the Union an
opportunity to bargain over about the matter.
(j) Reducing the amount of time employees are allowed to clean up their work areas
without first giving the Union an opportunity to bargain about the matter.
(k) Prohibiting employees from eating in nontoxic areas of the shop without first
giving the Union an opportunity to bargain about the matter.

13 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.

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(l) Prohibiting employees from using their cell phones on company time and
disciplining employees who did so without first giving the Union an opportunity to
bargain about the matter.
(m) Prohibiting employees from eating in front of the facility and disciplining
employees who did so without first giving the Union an opportunity to bargain
over the matter.
(n) Requiring employees to give increased notice before they can use vacation or
personal time without first giving the Union an opportunity to bargain about the
matter.
(o) Banning the use of cameras, camera phones, recorders, and listening devices in
the shop without first giving the Union an opportunity to bargain about the matter.
(p) Requiring that mechanics who install new engines to test drive those vehicles for
20 miles without first giving the Union an opportunity to bargain about the matter.
(q) Requiring employees to return all new parts to the parts room under penalty of
immediate discharge without first giving the Union an opportunity to bargain
about the matter.
(r) In any other manner interfering with, restraining, or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from the date of the Board’s Order, offer Larry Fuller, Herman de
Dios, and Victor Mendoza full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
(b) Make Larry Fuller, Herman de Dios, and Victor Mendoza whole for any loss of
earnings and other benefits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of the decision.
(c) Within 14 days from the date of the Board’s Order, remove from its files any
reference to the unlawful discharges and written warnings and within 3 days
thereafter notify the employees in writing that this has been done and that the
discharges and disciplines will not be used against them in any way.
(d) Within 14 days from the date of the Board’s order, determine whether Fuller’s
October efficiency report was accurate, correct any error and within 3 days
thereafter notify Fuller in writing of the results.
(e) On request of the Union, rescind the changes to the group health insurance plan
and make whole unit employees for any losses they may have suffered as a result
the changes, with interest, in the manner set forth in the remedy section of this
decision.

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(f) Rescind the instruction to employees not to approach the parts counter directly to
obtain parts.
(g) Rescind the requirement that employees to empty their trash bins at the end of
the work day and rescind the warning notices issued to Fuller, de Dios, and
Mendoza for failing to do so.
(h) Restore the amount of time employees are allowed to clean up their work areas to
30 minutes.
(i) Rescind the prohibition of employees eating in nontoxic areas of the shop.
(j) Rescind the prohibition of employees using cell phones on company time and
rescind the warning notice given to Marlon Taylor for doing so.
(k) Rescind the prohibition of employees from eating in front of the facility and rescind
the warning notices given to de Dios, Mendoza, Alberto Quinones, and Rolando
Basilio for doing so.
(l) Rescind the requirement that employees give increased notice before they can use
vacation or personal time.
(m) Rescind the ban on use of cameras, camera phones, recorders, and listening
devices in the shop.
(n) Rescind the requirement that mechanics who install new engines test drive those
vehicles for 20 miles.
(o) Rescind the requirement that employees to return all new parts to the parts room
under penalty of immediate discharge
(p) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records, including
an electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.
(q) Within 14 days after service by the Region, post at its facility in Decatur, Nevada,
copies of the attached notice marked “Appendix.”14 Copies of the notice, on forms
provided by the Regional Director for Region 28, after being signed by the
Respondent’s authorized representative, shall be 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

14 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

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proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees
employed by the Respondent at any time since August 1, 2005.
(r) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C., October 17, 2006.

____________________
William G. Kocol
Administrative Law Judge
JD(SF)–53-06
i
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 tell you that we cannot grant a wage increase because you engaged in union activities.

WE WILL NOT fail to determine whether efficiency reports are accurate because employees engaged in
union activities.

WE WILL NOT give employees written warnings because they support the Union.

WE WILL NOT deny requests to use personal leave because employees support the Union.

WE WILL NOT discharge, discipline, impose harsher working conditions, or otherwise discriminate
against any of you for supporting the International Association of Machinists and Aerospace Workers
Local Lodge 845, AFL-CIO or any other union.

WE WILL NOT make changes to our group health insurance plan without first giving the Union an
opportunity to bargain about the changes.

WE WILL NOT instruct employees not to approach the parts counter directly to obtain parts without first
giving the Union an opportunity to bargain about the matter.

WE WILL NOT require employees to empty their trash bins at the end of the work day and WE WILL NOT
discipline employees who failed to do so without first giving the Union an opportunity to bargain about the
matter.

WE WILL NOT reduce the amount of time employees are allowed to clean up their work areas without
first giving the Union an opportunity to bargain about the matter.

WE WILL NOT prohibit employees from eating in nontoxic areas of the shop without first giving the Union
an opportunity to bargain about the matter.

WE WILL NOT prohibit employees from using cell phones on company time and WE WILL NOT discipline
employees who did so without first giving the Union an opportunity to bargain about the matter.

WE WILL NOT prohibit employees from eating in front of the facility and WE WILL NOT discipline
employees who did so without first giving the Union an opportunity to bargain about the matter.

WE WILL NOT require employees to give increased notice before they can use vacation or personal time
without first giving the Union an opportunity to bargain about the matter.
JD(SF)–53-06
ii

WE WILL NOT ban the use of cameras, camera phones, recorders, and listening devices in the shop
without first giving the Union an opportunity to bargain about the matter.

WE WILL NOT require that mechanics who install new engines to test drive those vehicles for 20 miles
without first giving the Union an opportunity to bargain about the matter.

WE WILL NOT require employees to return all new parts to the parts room under penalty of immediate
discharge without first giving the Union an opportunity to bargain about the matter.

WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on
terms and conditions of employment for our employees in the bargaining unit:

Included: All full-time and regular part-time brake/tire specialists, detail tire specialists, detail
specialists, engine specialists, mechanic express specialists, PM inspection specialists, pre/post
inspection specialists, transmission specialists, van body specialists, mobile repair specialists,
parts clerks, parts specialists, transfer drivers, repair dispatch specialists, schedulers and senior
clerks employed the Employer at and out of its 1900 South Decatur Boulevard, Las Vegas,
Nevada and 989 South Boulder Highway, Henderson, Nevada repair facilities.

Excluded: All other employees, office clerical employees, professional employees, guards and
supervisors as defined in the Act.

WE WILL, within 14 days from the date of this Order, offer Larry Fuller, Herman de Dios, and Victor
Mendoza full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

WE WILL make Larry Fuller, Herman de Dios, and Victor Mendoza whole for any loss of earnings and
other benefits resulting from their discharge, less any net interim earnings, plus interest.

WE WILL, within 14 days from the date of this Order, remove from our files any reference to the unlawful
discharge of Victor Mendoza and the unlawful discharges and suspensions of Larry Fuller, Herman de
Dios, and the unlawful disciplines of Larry Fuller, Herman de Dios and Victoriano Mendoza and WE WILL,
within 3 days thereafter, notify each of them in writing that this has been done and that the discharges,
suspensions, and disciplines will not be used against them in any way.

WE WILL, within 14 days from the date of this Order, determine whether Fuller’s October efficiency report
was accurate, correct any error and within 3 days thereafter notify Fuller in writing of the results.

WE WILL rescind the changes to the group health insurance plan and make whole unit employees for any
losses they may have suffered as a result the changes, with interest.

WE WILL rescind the instruction to employees not to approach the parts counter directly to obtain parts
and WE WILL rescind the warning notice issued to Larry Fuller for doing so.

WE WILL rescind the requirement that employees empty their trash bins at the end of the work day and
WE WILL rescind the warning notices given to Larry Fuller, Herman de Dios, and Victoriano Mendoza for
failing to do so.

WE WILL restore the amount of time employees are allowed to clean up their work areas to 30 minutes.

WE WILL rescind the prohibition of employees eating in nontoxic areas of the shop.
JD(SF)–53-06
iii

WE WILL rescind the prohibition of employees using cell phones on company time and WE WILL rescind
the warning notice given to Marlon Taylor for doing so.

WE WILL rescind the prohibition of employees from eating in front of the facility and WE WILL rescind the
warning notices given to Herman de Dios, Victoriano Mendoza, Alberto Quinones, and Rolando Basilio
for doing so.

WE WILL rescind the requirement employees to give increased notice before they can use vacation or
personal time.

WE WILL rescind the ban on the use of cameras, camera phones, recorders, and listening devices in the
shop.

WE WILL rescind the requirement that mechanics who install new engines to test drive those vehicles for
20 miles.

WE WILL rescind the requirement that employees return all new parts to the parts room under penalty of
immediate discharge.

U-HAUL COMPANY OF NEVADA, Inc. and U-HAUL
INTERNATIONAL, 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.

2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.

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, 602-640-2146.