U-Haul of California

National Labor Relations Board - Board Decisions

Jun 8, 2006

347 N.L.R.B. 375 (N.L.R.B. 2006)

U-HAUL CO. OF CALIFORNIA
347 NLRB No. 34
375
U-Haul Company of California and Machinist Dis-
trict Lodge 190, Local Lodge 1173, International
Association of Machinists and Aerospace Work-
ers, AFL–CIO. Case 32–CA–20665–1
June 8, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On February 6, 2004, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed cross-exceptions, a supporting brief, and an
answering brief to the Respondent’s exceptions. The
Charging Party filed cross-exceptions and a supporting
brief. The Respondent filed both an answering brief to
the General Counsel’s cross-exceptions and a brief in
reply to the General Counsel’s answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by interrogating employee Mi-
chael Warren at an employee meeting. For the reasons
stated below, we reverse the judge and dismiss this alle-
gation.
Warren, an active union supporter at the Respondent’s
Fremont, California facility distributed union materials to
the Respondent’s employees in the parking lot before
working time on June 3, 2003,3 and again around June
10. These materials included an article about the Un-
ion’s organizing campaign at a facility in Las Vegas,
Nevada, and also included copies of a collective-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order to require the
Respondent to rescind its unlawful arbitration policy at all its facilities
where it is in effect, and to post a notice regarding the unlawful arbitra-
tion policy at all such facilities. See Jack In The Box Distribution
Center Systems, 339 NLRB 40 (2003). We shall additionally modify
the judge’s recommended Order to include the Board’s standard reme-
dial language for the violations found. Finally, we shall substitute a
new notice to employees at the Respondent’s Fremont, California facil-
ity to conform to the language set forth in the Order.
3 All dates hereafter are in 2003 unless otherwise indicated.
bargaining agreement between the Union and Penske
Truck Leasing, a competitor of the Respondent. On June
12, the Respondent’s shop manager, Chip Thorn, held an
employee meeting, at which approximately 30 employ-
ees were in attendance. Thorn began the meeting by
asking Warren, “What do you know about the Union in
Vegas, Warren?” Warren answered that the employees
in Las Vegas had voted for the Union, and that the em-
ployees here were waiting to see what would happen.
Thorn replied that the Union had not been voted in at Las
Vegas and that the issue had not yet been resolved.
Thorn then stated that it would cost the employees initia-
tion fees and monthly dues to join the Union, that all
employees would get was a green card, and that if it is
what the employees wanted then they should go ahead.
Thereafter, on June 16, Thorn discharged Warren, along
with another union supporter, Andrew Johnson.4
The judge found that Thorn’s questioning of Warren
was coercive and thus violated Section 8(a)(1). The
judge relied on the fact that the questioning took place in
front of 30 employees, that in that meeting Thorn also
expressed an opinion that employees would gain nothing
by union representation, and that Thorn discharged War-
ren and Johnson shortly after the interrogation. We dis-
agree.
Contrary to the judge, we find that neither the subject
matter of Thorn’s question, nor the circumstances in
which it was asked, were coercive. Thorn posed the
question to Warren, an open union supporter, in an open
forum on the plant floor. It occurred at one of the Re-
spondent’s plant meetings, where employees and manag-
ers periodically meet to discuss and exchange informa-
tion on a wide range of issues, such as quotas, safety,
attendance, production, and efficiency. Thorn’s question,
about an event at a different location, was the subject of
literature that Warren had openly distributed. The ques-
tion was not, however, about Warren’s union activity,
and Warren was not asked to reveal his union sentiments
or those of his fellow employees. Thus, even though the
question was posed in front of 30 employees, this fact
hardly makes the circumstances coercive.
Further, the question did not become coercive by
Thorn’s subsequent opinion that employees would gain
nothing from union representation. The subsequent
statement was nothing more than an opinion protected by
Section 8(c). Thorn merely expressed his opinion by
telling employees that all they would get is a green card
to put in their wallets, and added that if that was what the
employees wanted then they should “go right ahead.”

4 We adopt, for the reasons set forth in his decision, the judge’s find-
ing that the discharges of Warren and Johnson violated Sec. 8(a)(3) of
the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD376
Concededly, Warren was discharged shortly after this
incident. However, that subsequent event, while unlaw-
ful, does not render unlawful the prior question concern-
ing employees and events not involved here. For all
these reasons, we find that Thorn’s question was not co-
ercive in these circumstances, and accordingly we shall
dismiss this allegation.5
Our dissenting colleague conversely contends that
Thorn’s question was unlawful. In the dissent’s view,
Thorn singled out Warren and questioned him in a con-
frontational tone that demonstrated that those who sup-
ported the Union would be subjected to a public inquisi-
tion. This description of Thorn’s questioning, however, is
not supported by the record.
First, Thorn did not rebuke Warren for supporting the
Union at any point in the meeting. Second, Warren was
not asked about his union activities or sentiments, or
about those of his fellow employees. Rather, he was
asked about a union campaign in Las Vegas. Third, the
dissent’s characterization of Thorn’s question fails to
adequately account for the fact that it was posed in re-
sponse to Warren’s public distribution of union literature
concerning the union campaign in Las Vegas. The Board
has previously found questioning of this character to be
lawful. Rossmore House, 269 NLRB 1176 (1984), affd.
sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985) (after receiving mailgram announc-
ing employee’s role in organizing campaign, manager
lawfully asked employee “What is this about a union?”
and told employee owners of business would not like it).
Finally, the fact that Thorn voiced his opposition to the
Union does not establish that the question was coercive.
Thorn had a Section 8(c) right to express that view.
Our colleague further contends that the questioning
served as an early warning against supporting the Union.
However, nothing in Thorn’s question either implicitly or
explicitly conveyed such a warning. Indeed, the com-
plaint alleges an interrogation, not a threat. To the extent
that it could be inferred that Thorn’s question, standing
alone, suggests his dislike of unions, that expression of
opinion did not include any statements constituting a
warning not to support the Union.
Our colleague, like the judge, states that the subse-
quent termination of Warren renders Thorn’s prior ques-
tioning coercive, and cites in support Medcare Associ-
ates, Inc., 330 NLRB 935, 940–942 (2000), and Ald-
worth Co., 338 NLRB 137, 141–142 (2002), enfd. 363
F.3d 437 (D.C. Cir. 2004). Those cases are clearly dis-
tinguishable. In Medcare Associates, the employer sub-
jected two union supporters to a series of specific ques-

5 Member Liebman separately dissents on this issue.
tions concerning their union activity over a period of
several months. In the course of these questions, one
employee was told she could not stay neutral and the
employer needed her on its side and both employees
were told that two supervisors had been fired because
they had supported the union in violation of the em-
ployer’s orders.6 Relying on all of these factors, a major-
ity of the Board found that the numerous interrogations
were coercive and violated Section 8(a)(1). Although the
Board relied, in part, on subsequent events, there was a
close nexus between those events and the questions. By
contrast, there is no such nexus here. The question con-
cerned Warren’s knowledge of union activity in Las Ve-
gas. No subsequent event involved that activity or War-
ren’s knowledge of, or participation in, that activity.7
As pertinent here, Aldworth Co. involved an em-
ployer’s statement, at an employee meeting concerning
organizing activity, admonishing employees not to “grab
onto somebody with one foot out the door for lateness
and another for stealing company time and sleeping on
the job.” The Board found the statement unlawful be-
cause it directed employees not to follow the lead of em-
ployees who favored the union and implied that they and
any employees who did follow their lead would lose their
job. The Board also found that the accusation that the
employees were guilty of lateness and sleeping on the
job was unlawful because the accusation was false. It
therefore disparaged the employees and served as a
warning to other employees that they would be subjected
to the same treatment if they supported the union. Thus,
the Board relied on the false accusations coupled with
the announcement of discipline, rather than the subse-
quent discipline based on the accusations, in finding that
the statement was unlawful. Here, there is nothing about
Warren’s termination that can be linked to the earlier
question asked of him by Thorn. Accordingly, his termi-
nation does not render Thorn’s prior statement unlawful.
Our colleague also says that we are “rejecting as ir-
relevant Warren’s ensuing unlawful discharge.” We do
nothing of the kind. We consider it—and all of the sur-
rounding circumstances—relevant, but ultimately insuf-
ficient to convert Thorn’s sole question, about union ac-
tivity elsewhere, into a coercive interrogation.
Finally, our colleague says that Thorn revealed his
awareness of the union campaign and of the literature
that was distributed. Assuming that this is so, we note
that no one contends that Thorn was thereby creating an

6 The Board found that the discharges were lawful.
7 Member Schaumber does not pass on whether Medcare was cor-
rectly decided insofar as it found coercive the questions at issue in that
case. He agrees that the case is distinguishable for the reasons stated
above.
U-HAUL CO. OF CALIFORNIA 377
impression of surveillance or otherwise violating the Act.
Similarly, our colleague notes that Thorn disclosed his
negative view of the Union. Of course, negative views
are expressly protected by Section 8(c).
For all these reasons, we find, contrary to the judge,
that Thorn’s question was not coercive in these circum-
stances.
2. The judge found that the Respondent violated Sec-
tion 8(a)(1) and (4) of the Act by maintaining a manda-
tory arbitration policy as a condition of employment with
the Respondent. We agree.
On May 20, 2003, the Respondent distributed to its
employees a policy entitled “U-Haul Arbitration Policy”
and a document entitled “U-Haul Agreement to Arbi-
trate.” The policy states that it:
. . . applies to all UCC8 employees, regardless of length
of service or status and covers all disputes relating to or
arising out of an employee’s employment with UCC or
the termination of that employment. Examples of the
type of disputes or claims covered by the UAP include,
but are not limited to, claims for wrongful termination
of employment, breach of contract, fraud, employment
discrimination, harassment or retaliation under the
Americans With Disabilities Act, the Age Discrimina-
tion in Employment Act, Title VII of the Civil Rights
Act of 1964 and its amendment, the California Fair
Employment and Housing Act or any other state or lo-
cal anti-discrimination laws, tort claims, wage or over-
time claims or other claims under the Labor Code, or
any other legal or equitable claims and causes of action
recognized by local, state or federal law or regulations.
The policy continues with the following statement:
Your decision to accept employment or to continue
employment with UCC constitutes your agreement to
be bound by the UAP. (Emphasis in original.)
The judge found that the arbitration policy, as stated,
violates the Act because it would reasonably tend to in-
hibit employees from filing charges with the Board.
Specifically, the judge found that the phrase “any other
legal or equitable claims and causes of action recognized
by local, state, or federal law or regulations” reasonably
includes the filing of unfair labor practice charges with
the Board, and thus employees could reasonably believe
that they are precluded from filing such charges with the
Board. We agree that the arbitration policy is unlawful.
In Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), the Board held that in determining whether a
challenged rule is unlawful, the inquiry begins with the

8 “UCC” refers to Respondent (U-Haul Company of California).
issue of whether the rule explicitly restricts activities
protected by Section 7. If so, then the Board will find
that the rule is unlawful. If, however, the rule does not
explicitly restrict activity protected by Section 7, the
finding of a violation is dependent upon a showing of
one of the following: (1) reasonable employees would
construe the language to prohibit Section 7 activity; (2)
the rule was promulgated in response to union activity;
or (3) the rule has been applied to restrict the exercise of
Section 7 rights. 343 NLRB 646, 647 (2004).9
Applying that standard here, we find the arbitration
policy is unlawful. We recognize that the language in
the arbitration policy does not explicitly restrict employ-
ees from resorting to the Board’s remedial procedures.
However, the breadth of the policy language, referencing
the policy’s applicability to causes of action recognized
by “federal law or regulations,” would reasonably be
read by employees to prohibit the filing of unfair labor
practice charges with the Board. Plainly, the employees
would reasonably construe the remedies for violations of
the National Labor Relations Act as included among the
legal claims recognized by Federal law that are covered
by the policy. Thus, we find that the language of the pol-
icy is reasonably read to require employees to resort to
the Respondent’s arbitration procedures instead of filing
charges with the Board.
In its exceptions, the Respondent argues, as does our
dissenting colleague, that the above-arbitration policy is
not unlawful because the memo announcing this policy
included a phrase, in a section titled “What is Arbitra-
tion,” stating that the “arbitration process is limited to
disputes, claims or controversies that a court of law
would be authorized to entertain or would have jurisdic-
tion over to grant relief. . . .” The Respondent and our
colleague contend that this statement makes clear that the
policy does not extend to the filing of charges with the
Board. We find this argument unavailing. The reference
to a “court of law” in this part of the memo does not by
its terms specifically exclude an action governed by an
administrative proceeding such as one conducted by the
National Labor Relations Board. Indeed, there is nothing
in this portion of the memo that reasonably suggests that
its intent is to modify the policy language referencing the
applicability of the policy to causes of action recognized
by Federal laws or regulations. Further, inasmuch as
decisions of the National Labor Relations Board can be
appealed to a United States court of appeals, the refer-
ence to a “court of law” does nothing to clarify that the
arbitration policy does not extend to the filing of unfair

9 While Member Liebman dissented in that case, she concurs in the
finding of a violation herein. She finds that, under either the majority
or dissenting views in Lutheran Heritage, the policy is unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD378
labor practice charges. While our dissenting colleague
correctly states that it is the NLRB, and not the individ-
ual, who presents the case to the court, we believe that
most nonlawyer employees would not be familiar with
such intricacies of Federal court jurisdiction, and thus the
language is insufficient to cure the defects in the policy.10
Accordingly, because the employees would reasonably
construe the broad language to prohibit the filing of un-
fair labor practice charges with the Board, we find that
the policy violates Section 8(a)(1) of the Act.11
3. The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by maintaining a statement in its
employee handbook requiring employees to bring work-
related complaints first to their supervisor and then to the
Respondent’s president and chairman of the board. For
the reasons stated below, we find, contrary to the judge,

10 The dissent asserts that the policy is lawful even if it would rea-
sonably be read to cover NLRB charges, because it does not “impose
any sanction” for violations of its terms. We respectfully disagree.
Employees were required to agree to the policy as a condition of con-
tinued employment. Having entered into the agreement under those
circumstances, a reasonable employee would be deterred from violating
it by filing a charge.
11 Our dissenting colleague notes that mandatory arbitration provi-
sions “are used increasingly in the employment context,” and suggests
that we have condemned such clauses as unlawful. Our decision, how-
ever, is limited to the specific clause at issue in this case, which we
have determined would be reasonably read to restrict the filing of unfair
labor practice charges with the Board, thereby interfering with employ-
ees’ Sec. 7 rights. We do not pass on the lawfulness of mandatory
arbitration provisions. We note, however, that even in the context of
other employment statutes, the courts and other administrative agencies
have consistently recognized that individuals possess a nonwaivable
right to file charges with the EEOC, and that mandatory arbitration
provisions that attempt to restrict such rights are void and invalid as a
matter of public policy. See, e.g., Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 28 (1991) (individual who signed an agreement to
submit an employment discrimination claim to arbitration remained
free to file a charge with the EEOC); EEOC v. Cosmair, Inc., 821 F.2d
1085, 1090 (5th Cir. 1987) (invalidating former employee’s promise
not to file a charge with EEOC because it could impede EEOC en-
forcement of the civil rights laws and is void as against public policy);
EEOC v. U.S. Steel Corp., 671 F. Supp. 351, 357–359 (W.D. Pa. 1987)
(invalidating as contrary to public policy a retirement plan provision
that conditioned higher benefits on a retiree’s promise not to file
charges with the EEOC); “Enforcement Guidance on non-waivable
employee rights under Equal Employment Opportunity Commission
(EEOC) statutes,” Vol. III EEOC Compl. Man. (BNA) at N:2329 (Apr.
10, 1997). Congress explicitly reaffirmed the public policy against
interference with EEOC enforcement efforts, including the right to file
a charge, in the waiver provisions of the Older Workers Benefit
Protection Act of 1990 (OWBRA), amending the ADEA: “No waiver
may be used to justify interfering with the protected right of an
employee to file a charge or participate in an investigation or
proceeding conducted by the Commission.” 29 U.S.C. § 626(f)(4)
(ADEA). Nothing in our decision is inconsistent with well-established
legal principles applicable to arbitration agreements in the employment
context.
that maintenance of the handbook statement is not
unlawful.
The Respondent’s employee handbook, distributed to
all new employees, includes a section entitled “What
about Unions?” This section states the Respondent’s
preference to be union-free, and asserts that employees
do not need a union or outside third party to resolve
workplace issues. The concluding paragraph of this sec-
tion reads as follows:
We know that you want to express your problems,
suggestions, and comments to us so that we can under-
stand each other better. You have that opportunity here
at U-Haul. This can be done without having a union in-
volved in the communication between you and the com-
pany. Here you can speak up for yourself at all levels of
management. We will listen, and we will do our best to
give you a responsible reply. Furthermore, you should
understand that if your supervisor cannot resolve your
problems, you are expected to see me. [Emphasis in
original.]
The section is signed by the Respondent’s president
and chairman of the board of directors, whose photo-
graph appears on the facing page.
The judge found that the Respondent violated Section
8(a)(1) by including the following statement in its em-
ployee handbook: “. . . if your supervisors cannot resolve
your problems, you are expected to see me.” Because
the statement is accompanied by certain language ex-
pressing the Respondent’s preference that its employees
not be represented by a union, the judge found that the
statement would reasonably be interpreted by employees
as requiring them to resolve their workplace problems
through internal measures rather than by exercising
rights guaranteed them by Section 7 of the Act. Contrary
to the judge, we find that the handbook statement is not
unlawful.
First, the judge erred in reading the disputed statement
in isolation, rather than considering it in the context in
which it appears. The statement appears in the same
paragraph, and immediately follows, the Respondent’s
assertion that its employees “can speak up for yourself at
all levels of management” and that it will “listen” and do
its best to give them a “responsible reply.” The statement
that employees “can speak up for yourself” invites, but
does not require, the presentation of workplace problems
to management. Concededly, the Respondent was “ex-
pecting” that the employees would accept the invitation.
But, that expectation is far short of a command that they
do so.
Second, even if the disputed statement could be read as
a direction to employees to present their workplace prob-
lems to the Respondent’s managers, or at least an en-
U-HAUL CO. OF CALIFORNIA 379
couragement to do so, the handbook does not foreclose
employees from also using other avenues (e.g., the union,
fellow employees, the NLRB.) In addition, the hand-
book does not state that the employee must go to man-
agement before using other avenues. Further, there is no
evidence that the statement has been applied to foreclose
such access. Therefore, the handbook statement would
not reasonably forestall employees from bringing their
work-related complaints to persons or entities other than
the Respondent.12
Finally, the fact that the handbook statement is accom-
panied by statements of the Respondent’s preference that
its employees not be represented by a union does not
render the prior statement unlawful. Such statements are
opinions about unions and are protected by Section 8(c),
and as such, are insufficient to establish an unfair labor
practice.
In agreeing with the judge that the sentence at issue
violates Section 8(a)(1), our dissenting colleague essen-
tially makes two arguments. First, our colleague con-
tends that because the word “expected” is accompanied
by the Respondent’s expression of its preference not to
have a union, the use of that word would tend to restrain
employees from seeking resolution of their workplace
through a union or other outside entity. However, the
fact remains that the accompanying lawful statements
discuss the opportunities available to employees to take
their workplace concerns to officials other than their im-
mediate supervisors, and that—in this context—the word
“expected” specifically describes the availability of such
opportunities. Thus, when read in context, employees
would reasonably view the sentence as nothing more
than an explanation of why the Respondent believes that
a union is not necessary.
In addition, our colleague contends that a finding of a
violation is warranted under Kinder-Care Learning Cen-
ter, 299 NLRB 1171 (1990). However, that case is
clearly distinguishable, on two fundamental bases. First,
the rule there explicitly required employees to bring their
complaints to the employer. Second, the rule there ex-
plicitly threatened discipline and/or discharge if the em-
ployees did not bring their complaints to the employer.
Contrary to our colleague’s contention, the Respondent’s
use of the word “expected” is in no way comparable to
the explicit requirement and threat of discipline and dis-
charge contained in the rule in Kinder Care. Moreover,
there is no evidence in the record demonstrating that the
Respondent ever enforced the rule in a manner suggest-
ing that the word “expected” is tantamount to a warning
of adverse consequences. In essence, our colleague does

12 Cf. Kinder-Care Learning Centers, 299 NLRB 1171 (1990).
nothing more than surmise that the word “expected”
could be read as a threat of adverse consequences. How-
ever, in the absence of evidence that it would reasonably
be read that way, a finding of a violation is not war-
ranted.
4. The General Counsel excepts to the judge’s failure
to find that the Respondent additionally violated Section
8(a)(1) by threatening to terminate employees if they
talked about the Union. The General Counsel argues that
the judge neglected to consider employee Andrew John-
son’s testimony that, at the June 12 meeting, Thorn
stated, “if [Thorn] hears anymore whispering about [the
Union] in the shop [they] could face termination.”13 The
General Counsel contends that consideration of this tes-
timony warrants the finding of this additional 8(a)(1)
violation.
We disagree with the General Counsel that this testi-
mony warrants a finding of a violation. The record
shows Johnson further testified on cross-examination that
Thorn’s statement made it clear that he was talking about
situations where he (Thorn) “was walking up and down
the aisles,” and when the employees “were in the bays.”
In addition, the record shows that Thorn repeatedly em-
phasized to the employees that they were not permitted
to talk while working. For instance, Warren testified that
Thorn stated at other employee meetings that he did not
want employees talking about nonwork topics on work
time. In view of this additional evidence, we find that
the testimony cited by the General Counsel, even if cred-
ited, would not be sufficient to establish that Thorn
unlawfully threatened employees for engaging in non-
work time activity.
ORDER
The National Labor Relations Board orders that the
Respondent, U-Haul Company of California, Fremont,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees because they engage in union or other con-
certed activity protected by the Act.
(b) Requiring employees to execute waivers of their
rights to take legal action with respect to their hire, ten-
ure, and terms and conditions of employment, to the ex-
tent such waivers apply to the filing of Board charges.

13 This conduct was not originally alleged in the complaint. At the
hearing, the judge granted the General Counsel’s motion to amend the
complaint to include this allegation. However, the judge failed to make
any specific finding regarding the testimony or the allegation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD380
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Michael Warren and Andrew Johnson full reinstatement
to their former positions or, if those positions are un-
available, to substantially equivalent positions, without
prejudice to their seniority and any other rights or privi-
leges previously enjoyed.
(b) Make Michael Warren and Andrew Johnson whole
for any loss of earnings, with interest, and other benefits
suffered as a result of the Respondent’s unlawful dis-
charges of them in the manner set forth in the remedy
section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any and all references to the unlawful dis-
charges, and within 3 days thereafter, notify employees
Michael Warren and Andrew Johnson in writing that this
has been done and that the discharges will not be used
against them in any way.
(d) Within 14 days from the date of this Order, remove
from its files all unlawful waivers of the right to take
legal action executed by its employees, and within 3 days
thereafter, notify in writing each present or former em-
ployee who executed such waiver that this has been done
and that the waiver will not be used in any way.
(e) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(f) Within 14 days after service by the Region, post at
its Fremont, California facility copies of the attached
notice marked “Appendix A” and, at each of its other
facilities where its arbitration policy has been in effect,
copies of the attached notice marked “Appendix B.” 14
Copies of the notices, on forms provided by the Regional
Director for Region 32, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since May 20, 2003.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
CHAIRMAN BATTISTA, dissenting in part.
My colleagues find, in agreement with the judge, that
employees would reasonably view the Respondent’s ar-
bitration policy as one prohibiting them from invoking
the Board’s processes. They find that, because the policy
states that it covers claims recognized by “federal law or
regulations,” the policy is reasonably understood as a
prohibition of the right to file unfair labor practice
charges. Contrary to the judge and my colleagues, I find
that the policy is not unlawful.
This is another in a series of cases in which the Gen-
eral Counsel attacks a policy as unlawful on its face.1
That is, there is no evidence that the rule has been ap-
plied to the protected activity of invoking Board proc-
esses. Further, there is no evidence that it was intended
to apply to such activity. Finally, the policy does not
explicitly bar any Section 7 activity.
In Lutheran Heritage, the Board concluded that there
is no violation in cases of this kind, unless the policy
expressly interferes with Section 7 rights or it is reason-
able to read it in that manner. The mere fact that the pol-
icy could possibly be read in that manner is not suffi-
cient, absent evidence that it was actually applied in that
manner or that it was intended to be applied in that man-
ner.
Applying these principles here, I note that the policy
does not expressly refer to Section 7 activity, i.e., em-
ployee access to the NLRB. In addition, there is no evi-
dence that the policy was applied to such access or was
intended to so apply. Thus, the issue is whether the pol-
icy would reasonably be read to so apply.
Concededly, the policy states generally that it covers
“any other legal or equitable claims and causes of action
recognized by local, state or federal law or regulations.”

1 See, e.g., Lutheran Heritage, 343 NLRB 646 (2004); Mediaone,
340 NLRB 277 (2003).
U-HAUL CO. OF CALIFORNIA 381
In addition, the policy covers “employment discrimina-
tion.” Although the NLRA is not among the list of cov-
ered statutes, the list is only an “example” of the kinds of
disputes that are covered.
On the other hand, the memo accompanying the policy
sheds considerable light on the issue. The memo says
that the policy is “limited to” claims that “a court of law”
would be authorized to entertain. The NLRB is not a
court of law. Unlike the other listed statutes, a claim of
an unfair labor practice is made exclusively to the
NLRB, an administrative tribunal. Thus, in the absence
of any evidence of application or intent, I would not pre-
sume that a reasonable employee would read the policy
as foreclosing his right to come to the NLRB. I recog-
nize that NLRB orders are enforceable by Federal courts
of appeal. However, it is the individual who files the
charge with the NLRB, and it is his access to the NLRB
that is the Section 7 right. I simply do not believe that a
reasonable employee would read a provision regarding
access to courts as limiting his ability to come to the
NLRB. To repeat, no one has even suggested that inter-
pretation to employees. At the very least, the General
Counsel has not borne his burden of persuasion in this
case.2
Moreover, even if the policy were read to cover mat-
ters recognizable by the NLRA, that would not make the
policy unlawful. The provision does not impose any
sanction against an employee who files a charge with the
Board. Further, even my colleagues suggest that an em-
ployee who filed such a charge may well have it proc-
essed because the Board would not be bound by the
agreement. Concededly, there is a theoretical possibility
that an employee might refrain from filing a charge in the
first place. But I am unwilling to find a violation of Fed-
eral law [Section 8(a)(1)] simply because of that hypo-
thetical possibility.
I note that agreements like that involved herein are
used increasingly in the employment context. The issue
of whether arbitration is better than litigation is not for us
to decide. However, I am concerned that my colleagues
have gone out of their way to find a violation. Their ap-
proach would seem to outlaw, as violations of the
NLRA, policies which, like the instant one, do not even
mention the NLRB.
Finally, as noted my colleagues cite cases which sug-
gest that an employee, who signs such an agreement,
nonetheless retains the right to file a claim outside of
arbitration. Even if that is so, that does not support my

2 I therefore do not reach the issue of whether an employer violates
the Act if he has a policy that requires employees to agree to pursue
NLRA claims only through arbitration.
colleagues conclusion that the clause is itself a violation
of Federal law [i.e., Section 8(a)(1)].
MEMBER LIEBMAN, dissenting in part.
My colleagues err in reversing the judge’s findings
that the Respondent violated Section 8(a)(1) by coer-
cively interrogating employee Michael Warren and by
maintaining a policy that reasonably would be inter-
preted as restricting employees from taking work-related
complaints outside the company hierarchy. As I will
explain, Warren was singled out for questioning about
union activity, by the shop’s highest-ranking manager,
before 30 other employees in a mandatory meeting—and
was unlawfully fired soon afterward. The Respondent’s
complaint policy, in turn, explicitly told employees, after
describing unions as unnecessary, that they were “ex-
pected to see” the Respondent’s top official if they could
not first resolve problems with their supervisors. Con-
trary to my colleagues’ view, a careful examination of
the circumstances demonstrates that, in each instance, the
Respondents’ actions reasonably tended to coerce em-
ployees in the exercise of their Section 7 rights.1
I. THE INTERROGATION OF MICHAEL WARREN
The judge determined that the Respondent’s shop
manager, Chip Thorn, began a meeting with approxi-
mately 30 employees by interrogating leading union ad-
herent Warren about his knowledge of a union organiz-
ing campaign in a neighboring state.2 The majority re-
verses the judge’s determination that this question was
unlawful, finding neither the subject matter nor the cir-
cumstances of the exchange coercive, and rejecting as
irrelevant Warren’s ensuing unlawful discharge. De-
scribing Thorn’s meeting as an “open forum” and focus-
ing on Warren’s open support for and activities on behalf
of the Union, my colleagues overlook classic elements of
coercion during the meeting. And because Warren’s
interrogation served merely as the opening thrust in Re-
spondent’s effort to thwart employees’ organizing activi-
ties, they compound their error by disregarding the pro-
bative value of related subsequent events.
A.
Warren initiated contact with the Union on May 26,
2003.3 Within a few days, he began distributing union

1 I join my colleagues in adopting the judge’s finding that the Re-
spondent unlawfully discharged Michael Warren and Andrew Johnson
because they engaged in Union and protected activities in violation of
Sec. 8(a)(3) and (1), and I agree with Member Schaumber that the
Respondent maintained a mandatory arbitration policy that reasonably
tends to inhibit employees from filing charges with the Board, in viola-
tion of Sec. 8(a)(4) and (1).
2 The judge credited the testimony of Warren and Johnson over
Thorn’s version of the meeting.
3 Dates refer to 2003.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD382
materials to employees in the Respondent’s parking lot
before work. Among the materials he handed out was an
article dealing with the Union’s on-going organizing
campaign at a Nevada U-Haul facility.4 Fellow me-
chanic Andrew Johnson soon joined Warren in discuss-
ing the Union with other employees during lunch and
break times. On June 11, Warren arranged for a union
representative to meet with the Respondent’s mechanics
on June 16. On June 12, Warren informed a number of
employees5 about the upcoming meeting.
On the same day, shop manager Thorn called employ-
ees to a meeting in Building C, the mechanical mainte-
nance area where both Warren and Johnson worked.
Once all employees had assembled, Thorn opened the
meeting by looking directly at Warren and, addressing
him by name, asked, “What do you know about the Un-
ion in Las Vegas, Warren?” Warren answered that em-
ployees there had voted for the Union and were waiting
to see what would happen. Thorn countered that the Un-
ion had not been voted in and that the issue was not re-
solved. He continued by saying that the Union would
cost employees $250 in initiation fees and $50 in
monthly dues and that all they would get in return was a
card for their wallets. He also explained that even if the
Nevada U-Haul operation unionized, it did not mean the
Respondent’s California facility would follow suit be-
cause the two were separate corporations. Thereafter,
Thorn responded to several questions concerning work-
ing conditions and advised employees that if they had
questions about unions, they could come to his office for
information.
B.
In determining whether employers’ questions about
employees’ union and protected activities violate the Act,
the Board assesses the totality of circumstances in which
the questioning takes place.6 Among the factors weighed
in this analysis are the nature of the information sought,
the identity of the questioner, and the place and method
of the interrogation. The Board emphasizes that “these
and other relevant factors are not to be mechanically ap-
plied . . . but rather represent some areas of inquiry that
may be considered . . .” in evaluating whether the inter-
rogation “reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act.”7
Thorn was the highest-ranking official at the facility,
and the exchange with Warren occurred before an audi-

4 The Respondent is located in California.
5 The judge states that “Warren told as many employees as he could”
about the meeting.
6 Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
7 Id., at 1178 fn. 20.
ence of 30 unit employees. By posing the question as he
did, Thorn revealed for the first time not only that the
Respondent was aware of employees’ nascent organiza-
tional activities, but also that it knew the subject matter
of certain union literature Warren distributed to them.
As the meeting continued, Thorn disclosed his negative
view of the Union. And just 4 days later, Warren was
unlawfully discharged.
The judge concluded that under these circumstances,
taken together, Thorn’s interrogation of Warren would
reasonably tend to interfere with and restrain employees’
organizational activities. I agree with the judge’s con-
clusion. Because his analysis is not extensive however,
several aspects of the exchange that underscore its
unlawful coercive character should be further empha-
sized.
First, the manner in which the question was posed—at
the very outset of the meeting, without introductory re-
marks or explanation as to the purpose of the meeting—
set a serious and confrontational tone. Staring directly
Warren and calling him by name, Thorn pointedly asked
what he knew about the Union’s Las Vegas activities.
By singling out the leading union activist before his co-
workers and placing him squarely on the spot, Thorn
demonstrated that those who supported the Union would
be subject to a public inquisition. By then disputing
Warren’s version of the Nevada situation and dismissing
its relevance to the Respondent and the merits of the Un-
ion generally, the Respondent made clear its strong op-
position to the employees’ organizing efforts. Being
confronted, and challenged, by the highest representative
of management before a gathering of coworkers would
reasonably tend to intimidate even an open union sup-
porter like Warren.
Moreover, because of the setting in which the ex-
change took place, the coerciveness of the interrogation
was not limited in its effect to Warren alone. It extended
to the many other employees at the meeting. The ques-
tioning itself simply served as an early warning against
supporting the Union. Because Thorn’s remarks were
made at a shop meeting called by the Respondent, at-
tended by about 30 employees, the predictable impact of
his words would not—indeed could not—reasonably be
limited to one individual. Regardless of how the viola-
tions was plead, we can and should take the wider coer-
cive tendency of Thorn’s questioning into account.
Finally, that warning was soon made emphatic by
Thorn’s unlawful firing of Warren (along with union
supporter Johnson) just 4 days later. If the interrogation
of Warren did not tend to coerce immediately, it certainly
did considered retrospectively, in light of Warren’s fir-
ing. See, e.g., Medcare Associates, Inc., 330 NLRB 935,
U-HAUL CO. OF CALIFORNIA 383
940 fn. 17 (2000) (holding that subsequent events may be
considered in determining coercive tendency of interro-
gation: “[A] question that might seem innocuous in its
immediate context may, in the light of later events, ac-
quire a more ominous tone”). The Respondent’s swift
and severe manifestation of disapproval of employees’
organizational activities ensured that the memory of
Thorn’s interrogation of Warren would linger and re-
sound throughout the unit. See Aldworth Co., 338 NLRB
137, 141–142 (2002), enfd. 363 F.3d 437 (D.C. Cir.
2004) (employer’s remarks during employee meeting
warning unnamed but identifiable union adherents of
adverse consequences may reasonably be interpreted by
other employees as a threat, where remarks are followed
by unlawful, retaliatory action against those individu-
als).8
II. Restricting Protected Activity
The judge found that the Respondent unlawfully inter-
fered with employees’ right to seek redress of employ-
ment problems through protected concerted activities by
maintaining a policy implicitly prohibiting resolution of
employee complaints through entities other than the Re-
spondent’s supervisory hierarchy. The majority reverses
the judge, faulting him for failing to consider the full
context of the policy statement, and finding instead that
the Respondent was merely “inviting” employees to dis-
cuss their problems with management. In reaching this
result, the majority mistakenly criticizes the judge’s
analysis, but also fails to meaningfully address Kinder-
Care Learning Centers, 299 NLRB 1171 (1990), aptly
relied on by the judge.
The disputed policy is set forth in an employee hand-
book which the Respondent provides to all newly-hired
employees. Page two of the handbook displays a photo-
graph of the Chairman of the Board, E.J. (Joe) Shoen,
and on the opposite page contains a six-paragraph mes-
sage from Shoen entitled, “What About Unions?”. The
paragraph touts the Respondent’s positive employment
environment, expresses its preference for remaining un-
ion-free, emphasizes employees’ individuality, and as-
serts that union representation would not be in the best
interests of employees, the Respondent, or its customers.
The full text of the last paragraph reads as follows:
We know that you want to express your problems, sug-
gestions, and comments to us so that we can understand

8 While focusing narrowly on the factual differences between the
Thorn–Warren exchange and the events of Medcare Associates and
Aldworth, my colleagues miss the fundamental principle for which
those cases stand. That is, in evaluating whether conduct tends to
interfere with Sec. 7 rights, all the surrounding circumstances are to be
considered.
each other better. You have that opportunity here at U-
Haul. This can be done without having a union in-
volved in the communication between you and the
company. Here you can speak up for yourself at all
levels of management. We will listen, and we will do
our best to give you a responsible reply. Furthermore,
you should understand that if your supervisor cannot
resolve your problems you are expected to see me.”
[Emphasis in original.]
The judge found the statement’s final line unlawful, so
it was appropriately the focus of his analysis. But, con-
trary to the majority’s assertion, he read this line in the
context of the entire paragraph.
Up to the last line, the Respondent communicates that
it is now, and wants to remain, a nonunion operation.
The essential purpose of this portion of the paragraph is
to persuade employees that a union is unnecessary. This
message is lawful. But the final sentence—printed in
italics—goes further. Employees would reasonably read
the emphasized sentence to require them to first discuss
their complaints with their supervisor and Shoen, before
pursuing other, statutorily-protected ways of redressing
workplace complaint.
Phrased as an expectation from the Respondent’s high-
est-ranking management official, it is unlikely to be read
as a mere “invitation;” rather, it would reasonably tend to
restrain employees’ from seeking resolution of work-
place problems through the Union or other entities.
This conclusion is supported by the Board’s decision
in Kinder Care, supra. There, the Board found unlawful
a rule requiring employees to report work-related com-
plaints, concerns, or problems to the immediate attention
of the Center Director or to use other company-
prescribed problem solving procedures. The rule did not,
on its face, preclude employees from approaching some-
one other than the respondent. But because it mandated,
on threat of discipline, that they first turn to employer-
controlled processes, the Board determined that the rule
violated the Act. Here, similarly, while the Respondent’s
statement does not explicitly threaten disciplinary action,
there is an implicit threat of adverse consequences if em-
ployees do not meet the Respondent’s “expectation” that
they first discuss complaints with their supervisor and
Shoen.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD384
The National Labor Relations Board has found that we vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or discriminate against you be-
cause you engage in union or concerted activity.
WE WILL NOT require you to execute waivers of your
rights to take legal action with respect to your hire, ten-
ure, and terms and conditions of employment, to the ex-
tent that it applies to filing charges to the National Labor
Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer employees Michael Warren and Andrew
Johnson full reinstatement to the positions from which
they were discharged in June 2003 or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority and any other rights or
privileges previously enjoyed.
WE WILL make employees Michael Warren and An-
drew Johnson whole for any loss of earnings and other
benefits suffered as a result of their unlawful discharges,
with interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any and all references to the
unlawful discharge and, WE WILL, within 3 days thereaf-
ter, notify employees Michael Warren and Andrew John-
son in writing that this has been done and that the dis-
charges will not be used against them in any way.
WE WILL rescind our arbitration provision requiring
you to execute a waiver of your rights to take legal action
with respect to your hire, tenure, and terms and condi-
tions of employment, to the extent it applies to filing
charges with the National Labor Relations Board.
U-HAUL OF CALIFORNIA
APPENDIX B
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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT require you to execute waivers of your
rights to take legal action with respect to your hire, ten-
ure, and terms and conditions of employment, to the ex-
tent that it applies to filing charges with the National
Labor Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 or the Act.
WE WILL rescind our arbitration provision requiring
you to execute a waiver of your rights to take legal action
with respect to your hire, tenure, and terms and condi-
tions of employment, to the extent it applies to filing
charges with the National Labor Relations Board.
U-HAUL OF CALIFORNIA
Michelle M. Smith, Atty., for the General Counsel.
Burton F. Boltuch, Atty., of Oakland, California, for the Re-
spondent and Employee Willy Tandoc.
David A. Rosenfeld, Atty., of Oakland, California, for the Un-
ion.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Oakland, California, on October 15–17 and 22–
23, 2003. On June 18, 2003, Machinists District Local Lodge
1173, International Association of Machinists and Aerospace
Workers, AFL–CIO (the Union) filed the original charge in
Case 32–CA–20665–1 alleging that U-Haul Co. of California,
(the Respondent) committed certain violations of Section
8(a)(3) and (1) of the National Labor Relations Act (the Act).
On July 3, the Union filed an amended charge alleging that
Respondent had violated Section 8(a)(1) and (3) of the Act.
The Regional Director for Region 32 of the National Labor
Relations Board issued a complaint and notice of hearing
against Respondent on August 27, 2003. The complaint alleges
that Respondent unlawfully discharged employees Michael
Warren and Andrew Johnson, for their union activities. Fur-
ther, the General Counsel alleges that Respondent interrogated
employees about their union activities and that Respondent
maintains a provision in its employee handbook, which inter-
feres with employee Section 7 rights. Finally, the complaint
U-HAUL CO. OF CALIFORNIA 385
alleges that Respondent maintains a mandatory arbitration pro-
vision in violation of the Act. Respondent filed a timely answer
to the complaint, denying all wrongdoing.
All parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. On the entire record, from my
observation of the demeanor of the witnesses,1 and having con-
sidered the posthearing briefs of the parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation with an office and
principal place of business located in Fremont, California,
where it is engaged in the business of renting trucks and trail-
ers. During the past 12 months, Respondent received gross
revenues in excess of $500,000. During the same period of
time, Respondent purchased and received goods and services
valued in excess of $5000 from outside the State of California.
Accordingly, Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Respondent admits and I find that the Union has been a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Respondent operates a truck and trailer rental business in
California. This case concerns Respondent’s repair facility in
Fremont, California.
Organizing at Respondent’s Fremont facility began in late
May 2003. On May 26, Michael Warren, a mechanic, con-
tacted the Union. Thereafter, Warren downloaded materials
from the Union’s Internet website. On June 3, Warren distrib-
uted these union materials to approximately 10 employees in
Respondent’s parking lot, prior to reporting for work. Warren
told the employees that the Union was interested in meeting
with the employees and that he would try and set up a meeting
with the Union. Warren asked the employees to read the union
materials and he directed them to the Union’s website. At that
time, union organizing activities were taking place at the Las
Vegas and Henderson, Nevada facilities of U-Haul of Nevada.
On June 10 or 11, Warren passed out union information to
10 employees in the parking lot, prior to beginning work. War-
ren passed out an article about the union organizing at U-Haul
of Nevada’s Las Vegas facility and copies of a collective-
bargaining agreement between the Union and Penske Truck
Leasing, Respondent’s major competitor. In addition to distrib-

1 The credibility resolutions herein have been derived from a
review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the wit-
nesses, and the teachings of NLRB v. Walton Mfg. Co., 369
U.S. 404, 408 (1962). As to those witnesses testifying in con-
tradiction to the findings, their testimony has been discredited,
either as having been in conflict with credited documentary or
testimonial evidence or because it was in and of itself incredi-
ble and unworthy of belief.
uting these materials, Warren spoke to employees about the
Union, during lunch and breaks. One of the employees whom
Warren spoke with was mechanic, Andrew Johnson. After re-
ceiving union materials from Warren, Johnson began speaking
with other employees about his belief that the Union could help
the employees improve their wages.
On June 11, Warren spoke with a union representative and
they set up a meeting for Respondent’s mechanics, for Monday,
June 16, after work. On June 12, Warren told as many employ-
ees as he could about the scheduled June 16 union meeting.
Among the employees that Warren approached about the union
meeting were Willy and Donathan Tandoc. During the after-
noon of June 12, Chip Thorn, Respondent’s shop manager
called an employee meeting in building C, the shop where War-
ren and Johnson worked.2
Thorn began the meeting by looking at Warren and asking,
“What do you know about the Union in Vegas, Warren?” War-
ren answered that the employees in Las Vegas had voted for the
Union and were waiting to see what would happen. Thorn
denied that the Union had been voted in and said that the issue
had not yet been resolved.3 Thorn told the employees that it
would cost them $250 in initiation fees and $50 in monthly
dues to join the Union. He said all that the employees would
get for their money was a green card to put in their wallets. He
said that if that was what the employees wanted, they should
“go right ahead.” Thorn said that the Nevada operation was a
separate corporation and that even if the Nevada operation be-
came unionized, it did not mean that the California operation
would be unionized. Thorn said that U-Haul had separate cor-
porations and that Respondent had a “firewall” to protect it
against the Union from Nevada.
Johnson asked Thorn several questions, including questions
as to why Respondent’s wages were so low and why Penske
could afford to pay its mechanics $25 per hour. Thorn answered
that the repair shop only charged Respondent $26 per hour
making it unfeasible to pay a wage rate of $25 per hour. Thorn
reminded Johnson that Thorn was already working on making
Johnson a front-end specialist, which would result in a pay
increase for Johnson. Thorn told the employees that he had a

2 The Fremont repair facility consists of three buildings:
“Building A” houses sales and administrative offices, “Building
B” contains the preventative maintenance bay where employees
clean vehicles and perform minor mechanical work (such as
changing oil and replacing fan belts), and “Building C” houses
the maintenance bays where the mechanical work on trucks and
trailers is performed.
3 Machinists Local Lodge 845 filed a representation petition
in Case 28–RC–6159 seeking to represent the maintenance
employees at U-haul of Nevada’s Las Vegas and Henderson,
Nevada facilities. An election was held on May 7, 2003. The
employees cast a majority of votes in favor of representation by
Local Lodge 845. However, the Employer filed timely objec-
tions to the election. On June 10, a hearing was held on the
Employer’s objections to the election. As of June 12, 2003,
there was no ruling on the objections to the election. The hear-
ing officer’s report on objections did not issue until July 18,
2003.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD386
book in his office with questions and answers about unions. He
told employees that if they had questions about the Union, they
could come to his office for answers. Thorn told the employees
that they could talk about the Union before and after work but
not while they were on company time. He also told employees
to ask questions while at the meeting and not to have “mini-
discussions” after the meeting when they should be working.
When Thorn ended the meeting, the employees took their after-
noon break.
Thorn denied that he started the June 12 meeting by ques-
tioning Warren about the Union. Thorn claimed that the sub-
ject of the Union was raised by a question from employee Willy
Tandoc. Thorn claimed that the purpose of the meeting was to
dispel rumors that the facility would be closed or moved. Su-
pervisors Pugh and Contreras testified that they did not hear
Thorn discuss the Union. However, these supervisors were not
present at the start of the meeting. Warren and Johnson credi-
bly testified that Thorn began the meeting by questioning War-
ren about the Union in Las Vegas. Employee John Soper, still
employed as a mechanic, corroborated this testimony. Willy
Tandoc was clearly biased and prejudiced in favor of Respon-
dent, his employer.
In July 2003, Tandoc gave the Board a pretrial affidavit in
which he stated that Warren and Johnson asked many questions
about the Union, unionization and wages at the June 12 meet-
ing. He claimed that “The meeting became Johnson and War-
ren’s meeting.” At the trial, Tandoc following leading ques-
tions by Respondent’s attorney, who was also Tandoc’s attor-
ney, attempted to testify that he questioned Thorn about Las
Vegas and that Thorn only mentioned the Union in order to
answer the question. Tandoc otherwise denied that the Union
was discussed. After prompting by Respondent’s attorney,
Tandoc attempted to testify that Board agents exerted undue
pressure in taking the affidavit. However, on cross-examination
Tandoc testified that the Board agents only stressed the impor-
tance of telling the truth and that Tandoc should carefully read
the affidavit before signing it. Tandoc was told to make correc-
tions, if necessary and he did, in fact, make a correction on the
fifth and final page of the affidavit.
I credit the testimony of Warren and Johnson over that of
Thorn. Both Warren and Johnson testified in a straightforward
manner. Thorn’s testimony, on the other hand, changed fre-
quently at the urging of Respondent’s counsel. The demeanor
of a witness may satisfy the trier of fact, not only that the wit-
ness’ testimony is not true, but that the truth is the opposite of
his story; for the denial of one who has a motive to deny, may
be uttered with such hesitation, discomfort, arrogance or defi-
ance, as to give assurance that he is fabricating, and that, if he
is, there is no alternative but to assume the truth of what he
denies. I find Thorn to be such a witness. See Walton Mfg. Co.
v. NLRB, 369 U.S. 404, 408 (1962).
After the meeting, Warren and Johnson took their afternoon
break at a picnic table with several other employees. Johnson
suggested that Willy Tandoc had told Thorn about the employ-
ees’ discussion of the Union. Two other employees said they
had seen Willy Tandoc talking with Thorn. Warren stated that
he did not believe that Tandoc would inform on the employees.
Warren said that because Tandoc was Respondent’s chief diag-
nostician, it was only natural that he be involved in frequent
conversations with Thorn. Tandoc had another job and left
work after the employee meeting. Neither Warren nor Johnson
spoke to Tandoc after the employee meeting.
On Friday, June 13, Tandoc did not report to work. Respon-
dent contends that Tandoc did not work because Warren and
Johnson had threatened him on June 12. Tandoc gave various
reasons for not reporting to work on Friday the 13th. The credi-
ble evidence leads me to believe that Tandoc did not want to
work on Friday the 13th and because he “had other things to
do.” On Saturday June 14, Tandoc returned to work. Warren
spoke to Tandoc to obtain the phone number of a mutual friend
in Las Vegas. There was no indication that Tandoc was inti-
mated or threatened by Warren. Johnson was not scheduled to
work on Saturday.
On June 16, prior to clocking in for work, Tandoc told War-
ren that he had spoken with their friend in Las Vegas. Tandoc
said that the Union had been voted in at two of U-Haul’s facili-
ties in Nevada but that the matter was pending in Washington,
D.C. Later that same day, Warren approached Tandoc while he
was eating with his nephew Donathan Tandoc and asked them
to come to the union meeting scheduled for that evening.
Tandoc was working his other job and said he would not be
able to attend. Warren asked Donathan to remind other em-
ployees about the union meeting. Johnson also asked Tandoc
and Donathan to attend the union meeting that evening. Dona-
than revealed that they would not be attending the meeting.
At approximately, 3:15 p.m. Thorn called Warren and John-
son outside of their building. Also present were Patrick Pugh,
shop foreman and Thomas Contreras, dispatch manager. Thorn
told the two employees that he had spent a whole lot of money
having an employee meeting about not discussing the Union
and they just violated the rule by talking to Willy Tandoc about
the Union. Thorn claimed that Warren and Johnson had threat-
ened Tandoc and that was the reason that Tandoc did not report
to work on Friday, June 13. Johnson said that Tandoc was a
liar and that he would tell that to Tandoc, “to his face.” Thorn
said that would not happen and that the two employees were
fired. Thorn told the employees that they had an hour to pack
up their tools and leave the facility. Finally, Thorn stated, the
Union may come in, but the two employees would not be there
to see it.
According to Thorn, he learned on the morning of June 16
that Warren and Johnson had told Tandoc to “stop talking to
management” and that Tandoc was then too upset to go to work
on Friday the 13th. According to Thorn, he corroborated this
story by talking to two mechanics. These mechanics were not
called to corroborate Thorn’s testimony. Thorn then spoke
with Tandoc who allegedly claimed that Warren and Johnson
had told him not to speak to Thorn. I note that this testimony
differs from that of Tandoc. As stated earlier, I do not credit
any of Thorn’s testimony. As seen below, I do not credit any of
Tandoc’s testimony.
As Johnson was packing his tools to leave, he told Patrick
Pugh, shop foreman, that the alleged threats were completely
fabricated. Pugh replied that he had told Thorn that he had never
heard Johnson talking about the Union. Pugh then said, “What
can I do?”
U-HAUL CO. OF CALIFORNIA 387
After terminating Johnson and Warren, Thorn wrote an e-
mail to his superiors stating that Johnson and Warren had been
discharged because they had “pulled an employee away from
the group and harassed him.” There was no mention of any
alleged threat. The General Counsel presented evidence that
Warren and Johnson were given harsher discipline than other
employees actually guilty of harassment. In 2002, two mechan-
ics were involved in a confrontation, which included name-
calling and the suggestion of a fight. One of these employees
was suspended for 1 day and the other employee was not disci-
plined at all. Also in 2002, two employees were involved in a
shoving match. One employee was suspended and the other
given an oral and written warning. None of the four employees
involved in these incidents were terminated. Thorn did give
examples of employees discharged for threatening coworkers
but those incidents involved more serious conduct than that
which Thorn falsely accused Warren and Johnson.
At the times material, Thorn possessed a U-Haul human re-
sources policy manual from 1993. The manual included the
following advice to avoid unionization and to discourage a
union drive beforehand: “Develop some company-minded peo-
ple who consider any danger to the company as a danger to
themselves. They will warn you of union activity, so you will
be aware of organization attempts before the union is in the
saddle.” Thorn testified that he did not read this portion of the
policy manual and argued that it was an old manual just sitting
in his desk. I need not, and do not credit this self-serving testi-
mony. It appears to me that Willy Tandoc was such a com-
pany-minded employee and he certainly attempted to help
Thorn justify the discharges of Warren and Johnson.
At the end of September, Warren stopped Tandoc on a street
near Tandoc’s home and told Tandoc that he still respected
Tandoc and that they were still friends in spite of Tandoc’s
involvement with Warren’s discharge. Tandoc told Warren that
Respondent had provided him with an attorney and if anybody
contacted him, Tandoc was supposed to contact the attorney.
Tandoc told Warren that Respondent was paying for his attor-
ney. In addition, Tandoc said that he had told Thorn that he
was not going to lie for him. Tandoc admitted that Warren had
not threatened or harassed him. With respect to missing work
on Friday June 13, Tandoc said that he didn’t work that day
because it was Friday the 13th and he had other plans and not
because of any threats.
Tandoc’s testimony was self-contradictory, shifting, and
evasive. In his pretrial affidavit Tandoc stated, “I did not tell
Thorn that Warren and Johnson physically confronted me. I
did not tell Thorn that Warren and Johnson approached me
together. I did not tell Thorn that Warren and Johnson blocked
my way. I did not tell Thorn that I feared for the safety of my
family or myself.” According to the affidavit, after Thorn ap-
proached him, Tandoc told Thorn that Warren said, “Someone
ratted me out.” Tandoc told Thorn that Johnson said, “What
kind of trouble are you starting.” After Respondent provided
him with an attorney, he attempted to backtrack on his affidavit
and falsely accused the Board agents of misconduct. At the trial
Tandoc, attempting to bolster Respondent’s case, testified that
Johnson and Warren scared him. Based on Tandoc’s testimony
and the inconsistencies in his pretrial statements, I am con-
vinced that Tandoc changed his testimony whenever he thought
it would assist Respondent’s case. It appeared that in testifying,
Tandoc was attempting to please Respondent’s attorney rather
than trying to answer questions truthfully. Under these circum-
stances, I cannot credit any of his testimony.
B. Respondent’s Employee Handbook
Respondent distributes an orientation packet to all new hires.
The orientation packet includes an employee handbook and an
acknowledgement form. The first text page of the employee
handbook is entitled “What About Unions?” and states Respon-
dent’s preference to be union free. Respondent states that em-
ployees do not need a union or outside third party to resolve
workplace issues. The section ends with the following statement:
“Furthermore, you should understand that if your supervisor can-
not resolve your problems, you are expected to see me.” (Empha-
sis in original.) The statement is immediately followed by the
name, “E. J. (Joe) Shoen, chairman of the board.” Shoen is presi-
dent and chairman of the board of U-Haul International, Respon-
dent’s parent corporation. A copy of this page of the handbook
was also posted on a bulletin board at the repair facility. A week
after he discharged Johnson and Warren, Thorn posted an updated
“What About Unions?’ page which contained the statement at
issue herein.
C. Respondent’s Arbitration Policy
On May 20, 2003, Thorn distributed Respondent’s arbitra-
tion policy entitled “U-Haul Arbitration Policy” and a separate
document entitled “U-Haul Agreement to Arbitrate,” at an em-
ployee meeting. When Thorn handed out these documents he
explained that the purpose was to cut litigation expenses. He
told employees that they did not have to sign the arbitration
agreement but that it would make him look bad if the employ-
ees didn’t sign the agreement; he also stated that if employees
didn’t sign the agreement, they would probably not be able to
work. The policy included the statement, “Your decision to
accept employment or to continue employment with [Respon-
dent] constitutes your agreement to be bound by the [arbitration
policy].” Most but not all of Respondent’s employees signed
an agreement to arbitrate.
The arbitration policy covers:
All disputes relating to or arising out of an employee’s em-
ployment with [Respondent] or the termination of that em-
ployment. Examples of the type of disputes or claims coved
by the [U-Haul Arbitration Policy] include, but are not limited
to, claims for wrongful termination of employment, breach of
contract, fraud, employment discrimination, harassment or re-
taliation under the Americans With Disabilities Act, the Age
Discrimination in Employment act, Title VII of the Civil
rights Act of 1964 and its amendments, the California Fair
employment and Housing act or any other state or local anti-
discrimination laws, tort claims, wage or overtime claims or
other claims under the Labor Code, or any other legal or equi-
table claims and causes of action recognized by local, state or
federal laws or regulations.
There is no evidence that the arbitration policy has been en-
forced. There is also no evidence that any employee was disci-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD388
plined for failing to sign an arbitration agreement. Respondent
argues that the arbitration clause only applies to court proceed-
ings. However, I find the language of the arbitration policy that
it applies to any dispute or claim recognized by Federal laws or
regulations is certainly broad enough to apply to NLRB pro-
ceedings.
D. Analysis and Conclusions
1. The “What About Unions?” page of the employee handbook
As stated above, Respondent’s handbooks states Respondent’s
opinion that a union would not be in the best interests of either the
employer or its employees. Respondent states that employees
may express their problems without having a union involved.
Respondent’s opinion is then followed by the mandatory lan-
guage, “furthermore, you should understand that if your supervi-
sor cannot resolve your problems, you are expected to see me.”
Respondent’s policy unlawfully interferes with the statutory
right of employees to communicate their employment-related
complaints to persons and entities other than the Respondent,
including fellow employees, a union or the Board. Although the
policy does not on its face prohibit employees from approach-
ing someone other than the Respondent concerning work-
related complaints, it provides that employees first report such
complaints to a supervisor and if the issue is not resolved, em-
ployees are “expected” to report the problems to Shoen. I find
that the Respondent’s rule does not merely state a preference
that the employees follow its policy, but rather that compliance
with the policy is required. I further find that this requirement
reasonably tends to inhibit employees from bringing work-
related complaints to, and seeking redress from, entities other
than the Respondent, and restrains the employees’ Section 7
rights to engage in concerted activities for collective bargaining
or other mutual aid or protection. See Kinder-Care Learning
Centers, 299 NLRB 1171, 1172 (1990).
2. The mandatory arbitration policy
Employer attempts to limit or bar the exercise of statutory
rights, particularly those of individual employees as distin-
guished from those of their agents, have been held unlawful.
See Athey Products Corp., 303 NLRB 92, 96 (1991); Isla Verde
Hotel Corp., 259 NLRB 496 (1981), enfd. 702 F.2d 268 (1st
Cir. 1981); Reichhold Chemicals, 288 NLRB 69 (1988)). The
Board has regularly held that an employer violates the Act
when it insists that employees waive their statutory right to file
charges with the Board or to invoke their contractual grievance-
arbitration procedure. Athey Products, supra; Kinder-Care
Learning Centers, supra; Retlaw Broadcasting Co., 310 NLRB
984 (1993).
Respondent’s mandatory arbitration provision covers all dis-
putes relating to or arising out of an employee’s employment
with Respondent. Claims covered include wrongful termina-
tion, employment discrimination and claims recognized by
Federal laws or regulations. I find that this policy reasonably
tends to inhibit employees from filing charges with the Board,
and, therefore, restrains the employees’ Section 7 rights to en-
gage in concerted activities for collective bargaining or other
mutual aid or protection.
3. The Discharges of Warren and Johnson
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 98 (1982), the Board an-
nounced the following causation test in all cases alleging viola-
tions of Section 8(a)(3) or violations of Section 8(a)(1) turning
on employer motivation. First, the General Counsel must make
a prima facie showing sufficient to support the inference that
protected conduct was a “motivating factor” in the employer’s
decision. Upon such a showing, the burden shifts to the em-
ployer to demonstrate that the same action would have taken
place even in the absence of the protected conduct. The United
States Supreme Court approved and adopted the Board’s
Wright Line test in NLRB v. Transportation Corp., 462 U.S.
393, 399–403 (1983).
It has long been held that there are five principal elements that
constitute a prima facie case insofar as Section 8(a)(3) and (1) are
concerned. The first is that the employee alleged to be unlawfully
disciplined must have engaged in union or protected activities.
The second is that the employer knew about those protected ac-
tivities. Third, there must be evidence that the employer harbored
animus against those individuals because of such activities.
Fourth, the employer must discriminate in terms of employment.
Finally, the discipline must usually be connected to the protected
activity in terms of timing. See, e.g., Goodyear Tire & Rubber
Co., 312 NLRB 674 (1993).
I find that General Counsel has made a very strong prima fa-
cie showing that Respondent was motivated by Warren and
Johnson’s union activities in discharging the employees. War-
ren contacted the Union and distributed union materials. John-
son asked questions about wages at the employee meeting.
Thereafter, Warren and Johnson invited employees, including
Tandoc to the union meeting of June 16. At the June 12 meet-
ing, Thorn started the meeting by asking Warren two questions
about the Union in Las Vegas. On June 16 at the exit inter-
view, Thorn stated that the two employees had broken the rule
about talking about the Union. After, discharging the employ-
ees for threatening Tandoc, conduct for which they were inno-
cent, Thorn stated, the Union may come in, but the two em-
ployees would not be there to see it.
The General Counsel has also demonstrated Respondent’s
animus toward the Union. In addition to the Respondent’s law-
ful statements indicating that it was opposed to the Union, Re-
spondent directed its employees to bring work problems or
issues to their supervisors and Shoen, implying that employees
should not contact a union. The Respondent’s animus was
further demonstrated by Thorn’s comments at the June 12
meeting and particularly Thorn’s comments at the exit inter-
view. Having shown knowledge, animus, and that the dis-
charges occurred immediately after Respondent apparently
gained knowledge of Warren’s and Johnson’s union support,
the General Counsel has made out a very strong prima facie
case that employees’ union sympathies were the motivating
factor in the discharge decision.
My finding that Thorn’s reason for the discharges—threats
to Tandoc—was false amounts to a finding that it was a pretext.
The failure of his testimony in this respect to withstand scrutiny
not only dooms Respondent’s defense but it buttresses the Gen-
eral Counsel’s affirmative evidence of discrimination. See
U-HAUL CO. OF CALIFORNIA 389
Limestone Apparel Corp., 255 NLRB 722 (1981). Respon-
dent’s patently false reason for the discharge supports an infer-
ence that it had an unlawful motive for the discharge. See, e.g.,
Keller Mfg. Co.., 237 NLRB 712, 716 (1978); Party Cookies,
Inc., 237 NLRB 612, 623 (1978); Capital Bakers, Inc., 236
NLRB 1053, 1057 (1978). See also Shattuck Denn Mining
Corp. (Iron King Branch) v. NLRB., 362 F.2d 466, 470 (9th
Cir. 1966). I draw the inference that the motive of the discharge
is one Respondent desires to conceal—a discriminatory and
unlawful motive.
The burden shifts to Respondent to establish that the same
action would have taken place in the absence of the employees’
union and protected concerted activities. Under Wright Line,
Respondent must show that it would have discharged these
employees anyway, absent their union activities. Since I found
the proffered reasons for the discharges incredible, I find that
the Respondent has not met its Wright Line burden. Therefore,
I find that Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Michael Warren and Andrew Johnson be-
cause of their union activities.
4. The interrogation
Interrogation of employees is not unlawful per se. In deter-
mining whether or not an interrogation violates Section 8(a)(1)
of the Act, the Board looks at whether under all the circum-
stances the interrogation reasonably tends to interfere with,
restrain, or coerce employees in the exercise of their Section 7
rights. Rossmore House, 269 NLRB 1176 (1984); Sunnyvale
Medical Clinic, 277 NLRB 1217 (1985).
Here, I find that the interrogation of Warren tended to interfere
with and restrain employees in their organizing activities. First,
the interrogation took place in the presence of approximately 30 of
Respondent’s employees by Thorn the highest-ranking official at
the repair facility. This was the first indication that Respondent
had knowledge of the fledgling organizing effort. The interroga-
tion took place during a meeting at which Thorn expressed an
opinion that employees would gain nothing by bringing in a un-
ion. Third, Thorn discriminatorily discharged Warren and John-
son shortly after this interrogation. Under these circumstances,
employees would reasonably conclude that union activities would
lead to adverse action by Thorn and Respondent. Accordingly, I
find that Respondent violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging employees Michael Warren and Andrew
Johnson because of their union and protected concerted activi-
ties, Respondent violated Section 8(a)(3) and(1) of the Act.
4. By unlawfully interrogating employees Respondent has en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. By requiring employees to execute waivers of their rights
to take legal action with respect to their hire, tenure, and terms
and conditions of employment, and thereby requiring a waiver
of the right to file NLRB charges, Respondent violated Section
8(a)(1) and (4) of the Act.
6. By requiring employees to bring work-related complaints
to their supervisors and then to Respondent’s president and
chairman of the board, and thereby implying that employees
could not discuss such problems with other employees, unions
or the NLRB, Respondent violated Section 8(a)(1) of the Act.
7. The above unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and that it take certain affirmative action to effectuate
the policies of the Act.
Respondent must offer Michael Warren and Andrew Johnson
full and immediate reinstatement to the positions they would
have held, but for the unlawful discrimination against them.
Further, Respondent must make Warren and Johnson whole for
any and all loss of earnings and other rights, benefits and privi-
leges of employment they may have suffered by reason of Re-
spondent’s discrimination against them, with interest. Backpay
shall be computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as provided in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987); See also Flor-
ida Steel Corp., 231 NLRB 651 (1977) and Isis Plumbing Co.,
139 NLRB 716 (1962).
Respondent must also expunge any and all references to its
unlawful discharge of Warren and Johnson from its files and
notify Warren and Johnson in writing that this has been done and
that the unlawful discipline will not be the basis for any adverse
action against them in the future. Sterling Sugars, Inc., 261
NLRB 472 (1982).
In addition, Respondent must rescind the portion of its “What
About Unions?” rule or policy in its employee handbook that
that requires employees to report work-related complaints or
problems to their supervisors and then to the president and
chairman of the board of U-Haul International.
Respondent must remove from its files all unlawful waivers
of the right to take legal action executed by employees of Re-
spondent and notify, in writing, each present or former em-
ployee who executed such waiver that this has been done and
that the waiver would not be used in any way.
[Recommended Order omitted from publication.]