United Rentals

National Labor Relations Board - Board Decisions

Mar 31, 2004

341 N.L.R.B. 540 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIOSN BOARD 540
United Rentals, Inc. and Laborers’ Local Union 886,
Laborers’ International Union of North Amer-
ica, AFL–CIO. Case 32–RC–5078
March 31, 2004
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On November 15, 2002, the Regional Director for Re-
gion 32 issued a Decision and Direction of Election find-
ing that: (1) a petitioned-for unit of mechanics, yard em-
ployees, and drivers, excluding counter employees, the
parts associate, and the branch associate at the Em-
ployer’s San Leandro, California facility, is appropriate;
and (2) mechanic foreman Sweat be permitted to vote
subject to challenge. Thereafter, in accordance with Sec-
tion 102.67 of the National Labor Relations Board’s
Rules and Regulations, the Employer filed a timely re-
quest for review arguing that the smallest appropriate is a
facility-wide unit of the San Leandro facility employees.
The Petitioner filed an opposition to the Employer’s re-
quest for review. By Order dated January 29, 2003, the
Board granted the Employer’s request for review.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Having carefully considered the entire record, we re-
verse the Regional Director’s finding that the petitioned-
for unit is appropriate and find in agreement with the
Employer that the smallest appropriate unit must include
all the employees at the San Leandro facility.
Facts
The Employer is engaged in the retail and nonretail
rental of equipment. The Employer rents a variety of
equipment to homeowners and small-to-mid-size con-
tractors. The San Leandro facility operates 7 days a
week. The Employer employs three drivers, four me-
chanics, five yard employees, four counter employees,2
one parts associate, and one branch associate. Branch
Manager Dale Ferdinandi oversees all operations. Joe
DeSoto is the lead yard employee, and Barry Sweat is the
mechanic shop foreman.3 Saiyad Ahmed, the senior
counter employee, is the dispatcher of the drivers.
The duties of employees are divided into general areas
of responsibility. Drivers make deliveries and pickups of
rental equipment using tractor-trailer rigs and pickup

1 The election was conducted on December 13, 2002, and the ballots
were impounded.
2 The counter employees also are referred to as sales coordinators.
3 The Petitioner contends that Sweat is a statutory supervisor. The
Regional Director found the record insufficient to establish that Sweat
is a statutory supervisor but permitted him to vote subject to challenge.
trucks. Yard employees load and unload rental equip-
ment in the yard, assist with deliveries, check equipment
for rental, and may make deliveries using pickup trucks.
Mechanics typically perform preventive maintenance and
make repairs on small rental equipment. Counter em-
ployees provide customer service, including preparing
rental agreements using computers, demonstrating
equipment to customers, assisting them with the loading
and unloading of equipment, and receiving returned
equipment. The parts associate orders parts for the me-
chanics and obtains merchandise for the Employer’s
rental showroom.4
Notwithstanding this general division of responsibili-
ties, the employees regularly overlap and interchange
duties. According to Ferdinandi, who was the only wit-
ness to testify regarding the duties of the employees, the
Employer relies on everyone to “pitch in” to do various
types of jobs, despite their designated classification.
Employees therefore perform the duties of different clas-
sifications everyday. Although counter employees pro-
vide customer service, they also use the Employer’s
pick-up trucks to make equipment deliveries, a function
usually performed by the drivers.5 In addition, virtually
everyday, counter employees help customers load rental
equipment or assist truckdrivers load their deliveries, a
function ordinarily performed by the yard employees.6
Another counter employee has repaired a number of
pieces of equipment that normally would be repaired by
the mechanics. The parts associate, formerly a yard em-
ployee, delivers equipment and performs yard duties, at
times spending the entire day working in the yard. If a
yard employee calls in sick on the weekend, a counter
employee regularly fills in. In addition, yard employees
regularly perform the duties of counter employees, in-
cluding filling in for counter employees when they are
sick.
As indicated, although Ahmed is a counter employee,
he also is the dispatcher of the drivers. Ahmed, a former
yard employee, coordinates the drivers and tells them
where to deliver and pick up equipment and what par-
ticular sequence or route to use. Ahmed maintains daily
radio contact with the drivers.
4 The precise duties of the branch associate classification are unclear
from the record.
5 Although most counter employees are unlicensed to drive the trac-
tor-trailers, one counter employee, Lopez, is a former tractor-trailer
driver (and yard employee) who is licensed. He has hauled tractor-
trailer loads five to seven times during the 13 months since Ferdinandi
began managing this facility.
6 When loading customer vehicles, the counter employees often use
forklifts, which ordinarily are operated by yard employees. Counter
employees also load the aggregate or concrete bin in the yard, a job
performed by the yard employees.
341 NLRB No. 72
UNITED RENTALS, INC. 541
Branch Manager Ferdinandi handles all hiring, firing,
disciplining, and performance evaluations at the San
Leandro facility. He oversees all branch employees and
schedules all work hours. Although Yard Leadman De
Soto assigns work to yard employees and Foreman Sweat
to the mechanics, Ferdinandi directly assigns other duties
to employees.
All employees receive the same medical, vacation, and
sick-leave benefits. With the exception of Sweat, who is
paid $22 per hour, wages range from $11 per hour to
$17.50 per hour, depending on the classification.
Counter employees earn from $16 to $17.50 per hour,
while drivers receive from $15 to $17 per hour, and me-
chanics earn from $15 to $16.50 per hour. The parts
associate is paid $13.65 per hour, while yard employees
are paid from $11 to $13.50 per hour.7 All employees
except the counter employees are covered by the same
profit sharing plan.
All employees begin work between 7 and 8:30 a.m.
Employees are subject to the same time and attendance
policy. Except for the large rig tractor-trailer drivers
who must possess an appropriate driver’s license, and the
mechanics who must have some experience repairing
equipment, most classifications require no special quali-
fications. Counter employees are trained in the opera-
tion of the Employer’s computer system.
Analysis
The Regional Director found that the petitioned-for
unit of drivers, yard employees, and mechanics is appro-
priate by emphasizing that even though the excluded
counter employees may occasionally deliver equipment
or assist with minor repairs, their primary duties are dis-
tinctly clerical compared with unit employees whose
duties involve manual tasks. In addition, the Regional
Director found that the only evidence of interchange is
limited to occasional instances that are insufficient to
require the inclusion of the counter employees, parts as-
sociate, and branch associate in the petitioned-for unit.
We find, contrary to the Regional Director, that the
overwhelming and undisputed evidence of overlapping
duties and interchange between the excluded employees
and the petitioned-for employees, and of their common
terms and conditions of employment, demonstrates that
the petitioned-for unit is not an appropriate unit. We find
therefore that the counter employees, parts associate, and
branch associate must be included in the petitioned-for
unit, and that only an overall unit of employees at the
Employer’s San Leandro facility is appropriate.
Although the employees in each classification at this
facility have a designated function, they all “pitch in”

7 The record does not indicate the hourly rate of the branch associate.
and perform the functions of different classifications
when necessary. This method of operation has resulted
in the excluded employees regularly and frequently per-
forming duties of the employees in the petitioned-for
unit. Thus, the undisputed testimony of Branch Manager
Ferdinandi clearly demonstrates that the counter employ-
ees, while responsible for customer service, have regu-
larly performed the functions of the petitioned-for yard
employees, drivers, and even mechanics. Similarly, the
parts associate, while responsible for the Employer’s
inventory of parts and equipment, has performed the du-
ties of yard employees and drivers. Counter employees
also substitute for yard employees who are ill. Con-
versely, yard employees have performed the duties of
counter employees and filled in for them when they are
sick. Further evidence of the functional overlap in the
Employer’s operation is the role of counter employee
Ahmed, who also serves as the dispatcher of the drivers.
Ahmed, a former yard employee, dispatches the drivers
on their deliveries and pickups, and maintains daily radio
contact with them.
We disagree with the Regional Director’s narrow as-
sessment of the overlapping work and interchange as
“occasional” or “limited” and his finding that the work of
the excluded employees is “distinctly clerical.” The un-
disputed testimony of Ferdinandi demonstrates that the
performance of petitioned-for unit work by the excluded
employees occurs regularly and in many instances every
day. Furthermore, the extent of the performance of the
manual functions of unit employees by the excluded em-
ployees undermines the Regional Director’s finding that
their duties are distinctly clerical.8
The excluded employees also share common terms and
conditions of employment with the employees in the pe-
titioned-for unit. The excluded employees work similar
hours and are subject to the same time and attendance
policy as the petitioned-for employees. Furthermore, all
employees at the facility are subject to common labor
relations authority and oversight by Branch Manager
Ferdinandi. Ferdinandi sets all employee work sched-
ules, and he directly assigns duties to employees. All
employees receive the same medical and leave benefits.
The wages of the excluded counter employees are com-
parable to the wages of the drivers and most mechanics.9
Although the counter employees are covered by a differ-
8 This case, therefore, is distinguishable from Avis Rent-a-Car Sys-
tem, Inc., 132 NLRB 1136 (1961), relied on by the Regional Director,
because the excluded counter/rental agents there only occasionally
performed the duties of the unit mechanics and delivery personnel.
9 Counter employees earn from $16 to $17.50 per hour, while drivers
earn from $15 to $17 per hour and most mechanics earn from $15 to
$16.50 per hour.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 542
ent profit sharing plan from the petitioned-for employees,
the parts associate and branch associate are covered by
the same plan as the petitioned-for employees. Finally,
two counter employees and the parts associate previously
worked as yard employees, and one of those counter em-
ployees also previously worked as driver.
Accordingly, based on the significant overlapping du-
ties and interchange, common labor relations control,
common oversight and assignment of work by Ferdi-
nandi, common hours of work, and similar wages and
benefits, we find that the excluded counter employees,10
the parts associate, and the branch associate11 share such

10 Senior counter employee/dispatcher Ahmed’s duties as a dis-
patcher and his shared terms and conditions of employment with unit
employees alone mandates his inclusion in the unit. See, e.g., Brown-
ing Ferris, Inc., 275 NLRB 292 (1985).
11 Although the record is sparse concerning the terms and conditions
of employment of the branch associate, we include her in the unit be-
a substantial community of interest with the petitioned-
for employees that they must be included in the unit.
The Petitioner has not indicated whether it would be
willing to proceed to an election in a unit different from
the unit found appropriate by the Regional Director. We
therefore remand the case to the Regional Director.12
ORDER
The Regional Director’s Decision and Direction of
Election is reversed. This case is remanded to the Re-
gional Director for further appropriate action.

cause otherwise, she would be the only unrepresented employee at this
facility. See Chrysler Corp., 194 NLRB 183 (1971).
12 In light of our finding that the petitioned-for unit is not appropriate
and our remand of this case to the Regional Director for further action,
we find it unnecessary to pass on the supervisory status of Sweat.