United Rentals

National Labor Relations Board - Board Decisions

Aug 24, 2007

350 N.L.R.B. 951 (N.L.R.B. 2007)

UNITED RENTALS
350 NLRB No. 76
951
United Rentals, Inc. and International Union of Op-
erating Engineers Local Union Nos. 66, 66A, B,
C, D, O, and R, AFL–CIO. Cases 8–CA–34853,
8–CA–35041, 8–CA–35196, and 8–CA–35319
August 24, 2007
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW
On January 30, 2006, Administrative Law Judge Mi-
chael A. Rosas issued the attached decision.1 The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief. The General Counsel also
filed exceptions and a supporting brief, and the Respon-
dent filed an 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,2 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.3

1 The caption of the judge’s decision lists three cases: Cases 8–CA–
34853, 8–CA–35041, and 8–CA–35319. The judge’s decision states,
however, that he granted the General Counsel’s motion to consolidate,
with these three cases, “the bargaining case,” i.e., Case 8–CA–35196.
We have amended the caption accordingly.
2 The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not
to overrule an administrative law judge’s credibility resolutions unless
the clear preponderance 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.
There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) by threatening employees in multiple ways, by
coercively interrogating employees, and by soliciting employee griev-
ances and promising to remedy them, and Sec. 8(a)(3) by transferring
employee Robert Williams to its East Liverpool store and assigning
him lower-level duties, by disciplining Williams on July 21, 2004, and
by disciplining employee Timothy Plunkett on July 13, 2004.
3 We will amend the judge’s Conclusions of Law, modify his rec-
ommended Order, and substitute a new notice to conform to the viola-
tions found and to the Board’s standard remedial language.
The judge’s recommended Order includes a compulsory notice-
mailing provision as well as the customary contingent provision. The
judge did not explain why he ordered compulsory notice mailing, and
the General Counsel does not contend that circumstances warrant this
remedy. We shall modify the judge’s recommended Order accordingly.
We amend the remedy section of the judge’s decision as follows.
The judge provided, inter alia, that employees Timothy Plunkett and
Robert Williams be made whole “for any leave time or absences unlaw-
fully charged them” in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950). Because the unfair labor practices committed
against Plunkett and Williams did not cause them to be separated from
employment, their make-whole award is properly computed in accor-
dance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971).
The unfair labor practice allegations in this case arise
in the context of a successful effort by the Union, Inter-
national Union of Operating Engineers Local Union Nos.
66, 66A, B, C, D, O, and R, AFL–CIO, to organize ap-
proximately 15 employees working for the Respondent,
United Rentals, Inc., a company engaged in the rental
and sales of commercial construction equipment, at its
places of business at Columbiana and East Liverpool,
Ohio (collectively, the Columbiana branch). The Re-
spondent’s conduct alleged as unlawful began with the
commencement of the Union’s organizing campaign in
February 2004,4 and continued through the March 26
election, wherein the employees selected the Union by a
vote of eight to seven, and for approximately 6 months
thereafter. The judge found that the Respondent commit-
ted numerous violations of Section 8(a)(1), (3), and (5)
of the Act; he also dismissed some 8(a)(3) allegations.
We adopt all of the judge’s unfair labor practice findings
and all of his dismissals for the reasons he stated, except
as modified below.
1. The judge found, inter alia, that the Respondent
violated Section 8(a)(3) by taking the following actions
following the Union’s March 26 electoral victory: sus-
pending annual performance evaluations and pay raises,
discontinuing its practice of permitting employees to rent
equipment for free, imposing a stricter dress code, and
changing its practice of permitting employees to call in
before a scheduled shift to advise that they would be late.
In so finding, however, the judge did not state what legal
standard he was applying.
It is well established that 8(a)(3) allegations that turn
on employer motivation are analyzed under Wright Line.5
Under that standard, the General Counsel must first
show, by a preponderance of the evidence, that protected
conduct was a motivating factor in the employer’s ad-
verse action. Once the General Counsel makes that
showing by demonstrating protected activity, employer
knowledge of that activity, and animus against protected
activity, the burden of persuasion shifts to the employer
to show that it would have taken the same adverse action
even in the absence of the protected activity. Donaldson
Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). If,
however, the evidence establishes that the reasons given
for the employer’s action are pretextual—that is, either
false or not in fact relied upon—the employer fails by
definition to show that it would have taken the same ac-
tion for those reasons, and thus there is no need to per-
form the second part of the Wright Line analysis. Golden

4 All dates are in 2004, unless otherwise indicated.
5 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399–403 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD952
State Foods Corp., 340 NLRB 382, 385 (2003); Lime-
stone Apparel Corp., 255 NLRB 722 (1981), enfd. 705
F.2d 799 (6th Cir. 1982).
As to all of the 8(a)(3) allegations listed above, the
General Counsel easily met his initial burden under
Wright Line. As found by the judge, on February 11,
Joseph Beasley, the Union’s coordinator of organizing,
faxed a letter to Chris Britt, manager of the Respondent’s
Columbiana and East Liverpool facilities, informing Britt
that 10-named employees “are currently involved in as-
sisting the [Union] in attempting to organize your com-
pany.” Beasley also faxed copies of the 10 employees’
signed authorization cards. Thus, protected activity and
the Respondent’s knowledge thereof are plainly estab-
lished. As to union animus, the judge found, and the
Respondent did not except to his finding, that the Re-
spondent committed multiple violations of Section
8(a)(1), including threats, coercive interrogation, and
solicitation of grievances accompanied by express reme-
dial promises. These violations clearly demonstrate the
Respondent’s union animus.
Turning to the Respondent’s proffered nondiscrimina-
tory reasons for the foregoing conduct—that is, suspend-
ing annual performance evaluations and pay raises, dis-
continuing free equipment rentals, imposing a stricter
dress code, and changing its call-in practice—the judge
rejected them as unworthy of belief. For the several rea-
sons stated by the judge, we agree that the Respondent’s
proffered reasons for these actions are pretextual. Thus,
the Respondent necessarily failed to show that it would
have taken the same actions even in the absence of its
employees’ union activity. Golden State Foods, supra.
We therefore affirm the judge’s 8(a)(3) findings.
2. In finding that the Respondent violated Section
8(a)(5), the judge did not address the Respondent’s con-
tention that its unilateral changes to certain of its policies
were not material, substantial, and significant.6 We do so
here.
As fully recounted by the judge, the Respondent, at its
Columbiana branch, had a practice of permitting em-
ployees to rent equipment for free. It changed its prac-
tice after the Union won the election and subsequently
provided the employees with only a discounted rental
rate. Also, after the election the Respondent discontin-
ued its practice of permitting employees to wear jeans
and company sweatshirts at work. We reject the Re-
spondent’s contention that these changes were insignifi-
cant. The loss of free equipment rentals clearly had a

6 See, e.g., Flambeau Airmold Corp., 334 NLRB 165 (2001) (stating
that a unilateral change in a mandatory subject of bargaining is unlaw-
ful only if it is “material, substantial and significant”), modified on
other grounds 337 NLRB 1025 (2002).
detrimental effect on employees. For example, under the
new policy, Robert Williams and Douglas Baker were
charged for equipment rentals that would have been free
under the prior policy. So, too, did the change to the
Respondent’s dress code: the Respondent sent employee
Plunkett home pursuant to the changed policy. The Re-
spondent submits that the changes merely brought the
Columbiana branch into compliance with the Respon-
dent’s written corporate policies. That defense fails. The
Respondent unilaterally changed from lax enforcement to
more stringent enforcement of these policies. We have
previously held that a unilateral change from lax en-
forcement of a policy to more stringent enforcement is a
matter that must be bargained over. Vanguard Fire &
Security Systems, 345 NLRB 1016, 10172 (2005), enfd.
468 F.3d 952 (6th Cir. 2006); Hyatt Regency Memphis,
296 NLRB 259, 263–264 (1989), enfd. in relevant part
sub nom. Hyatt Corp. v. NLRB, 939 F.2d 361 (6th Cir.
1991).
With respect to the Respondent’s change in its call-in
policy, we note that the Respondent, pursuant to its uni-
laterally changed policy, disciplined employees for late-
ness and no longer allowed employees to make up the
time at the end of their shift. Where employees are sub-
ject to discipline for failing to comply with a unilaterally
changed policy, such a change is material, substantial,
and significant. Toledo Blade Co., 343 NLRB 385, 388
(2004); Postal Service, 341 NLRB 684, 687 (2004).7
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following employees of the Respondent consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All truck drivers, tractor trailer drivers, mechanics,
parts associates, and customer service associates em-
ployed by the Employer at its 44691 State Route 14,
Columbiana, Ohio and 16695 Lisbon Street, East Liv-
erpool, Ohio locations, but excluding all office clerical
employees, outside sales/rental persons, professional

7 Member Schaumber agrees with his colleagues and the judge that
the Respondent violated Sec. 8(a)(3) by withholding annual evaluations
and pay raises, and by changing its equipment rental, uniform, and call-
in policies. However, Member Schaumber finds it unnecessary to pass
on the judge’s additional findings that the Respondent’s conduct also
violated Sec. 8(a)(5) because the additional findings would not materi-
ally affect the remedy. See Strand Theatre of Shreveport Corp., 346
NLRB 523 at 1 fn. 2 (2006).
UNITED RENTALS 953
employees, guards and supervisors as defined in the
Act.
4. Since April 5, 2005, and at all times thereafter, the
Charging Party has been the exclusive collective-
bargaining representative of the unit described in para-
graph 3 above, based on Section 9(a) of the Act.
5. By engaging in the following conduct, Respondent
committed unfair labor practices contrary to Section
8(a)(1) of the Act.
(a) Respondent threatened that employees who signed
authorization cards sealed their fate.
(b) Respondent threatened that employees suspected of
leading the organization effort would be fired within a
few months.
(c) Respondent threatened that the organizational ef-
fort would cause an employee to lose his job and health
coverage for his ill daughter, would result in the elimina-
tion of annual evaluations and pay raises, and would
cause Respondent to close one or both of the Columbiana
branch stores.
(d) Respondent threatened that the genius behind the
organizing effort would cause Respondent to close.
(e) Respondent threatened that if the Union prevailed
or employees voted for the Union, Columbiana would be
a miserable place to work; employees would lose promo-
tional opportunities, medical benefits, free use of com-
pany equipment, and assistance with their work con-
cerns; and there would be layoffs and employees being
sent home early.
(f) Respondent threatened an employee who com-
plained about Respondent’s earlier threats that Respon-
dent was looking to fire him and that he should avoid
giving Respondent a reason to do so.
(g) Respondent interrogated employees about why
they signed authorization cards and supported the Union,
about whether employees had any prior union activity,
and about how employees voted.
(h) Respondent promised that it would take care of
employees’ pay concerns and increase the pay at Colum-
biana.
(i) Respondent promised that it was looking out for the
employee with the ill daughter and that the employee
was not to worry about disciplinary action if the em-
ployee needed time off to care for the daughter.
(j) Respondent asked about employees’ work concerns
and any other issues, gave employees business cards and
solicited their phone calls and e-mails with problems and
questions, and promised to address the employees’ con-
cerns if the Union lost the election.
6. By engaging in the following conduct, Respondent
committed unfair labor practices contrary to Section
8(a)(3) and (1) of the Act.
(a) Respondent eliminated annual evaluations and pay
raises because unit employees supported the Union.
(b) Respondent changed its policy concerning employ-
ees’ use of rental equipment by requiring employees to
pay rental fees for the use of borrowed equipment be-
cause unit employees supported the Union.
(c) Respondent changed its uniform policy because
unit employees supported the Union.
(d) Respondent changed its call-in policy because unit
employees supported the Union.
(e) Respondent disciplined, transferred, assigned
lower-level duties to, and discharged employees because
they supported the Union.
7. By engaging in the following conduct, Respondent
committed unfair labor practices contrary to Section
8(a)(5) and (1) of the Act.
(a) Respondent unilaterally eliminated annual evalua-
tions and pay raises without first giving the Union notice
and opportunity to bargain about the matter.
(b) Respondent unilaterally changed its policy con-
cerning employees’ use of rental equipment by requiring
employees to pay rental fees for the use of borrowed
equipment without first giving the Union notice and op-
portunity to bargain about the matter.
(c) Respondent unilaterally changed its uniform policy
without first giving the Union notice and opportunity to
bargain about the matter.
(d) Respondent unilaterally changed its call-in policy
without first giving the Union notice and opportunity to
bargain about the matter.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, United Rentals, Inc., Columbiana and East
Liverpool, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as modi-
fied.
1. Cease and desist from
(a) Threatening employees concerning their union or
other protected, concerted activities, including without
limitation by telling them if they signed authorization
cards they sealed their fate; that employees suspected of
leading the organization effort would be fired within a
few months; that the organizational effort would cause an
employee to lose his job and health coverage for his ill
daughter, would result in the elimination of annual
evaluations and pay raises, and would cause Respondent
to close one or both of the Columbiana stores; that the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD954
genius behind the organizing effort would cause Respon-
dent to close; that if the Union prevailed or employees
voted for the Union, Columbiana would be a miserable
place to work, employees would lose promotional oppor-
tunities, medical benefits, free use of company equip-
ment, and assistance with their work concerns, and there
would be layoffs and employees being sent home early;
and by telling an employee who complained about Re-
spondent’s earlier threats that Respondent was looking to
fire him and that he should avoid giving Respondent a
reason to do so.
(b) Coercively interrogating employees about their
own or others’ union or other protected, concerted activi-
ties, including without limitation by asking why they
signed authorization cards and supported the Union,
whether employees had any prior union activity, and how
employees voted.
(c) Soliciting grievances and promising to remedy
them, including without limitation by telling employees
that Respondent would take care of employees’ pay con-
cerns and increase the pay at Columbiana, and that Re-
spondent was looking out for an employee and that he
was not to worry about disciplinary action if he needed
time off to care for his daughter; and by asking employ-
ees about their work concerns, giving employees busi-
ness cards and soliciting their phone calls and e-mails
with problems and questions, and promising to address
the employees’ concerns if the Union lost the election.
(d) Discharging or otherwise discriminating against
any employee for supporting the International Union of
Operating Engineers Local Union Nos. 66, 66A, B, C, D,
O, and R, AFL–CIO, or any other union.
(e) Discriminatorily eliminating annual evaluations
and pay raises, and changing policies concerning equip-
ment rentals, uniforms, and call-in procedures.
(f) Refusing to bargain with the Union as the exclusive
collective-bargaining representative of its employees in
an appropriate bargaining unit by making certain unilat-
eral changes in terms and conditions of employment.
(g) 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) Conduct performance evaluations of all unit em-
ployees for the period of March 2003 to February 2004,
and promptly notify each unit employee of his or her pay
raise commensurate with such evaluation. Such pay in-
creases shall be retroactive to April 1, 2004.
(b) Upon request of the Union, rescind the changes in
the equipment rental, uniform, and call-in policies.
(c) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
All truck drivers, tractor trailer drivers, mechanics,
parts associates, and customer service associates em-
ployed by the Employer at its 44691 State Route 14,
Columbiana, Ohio and 16695 Lisbon Street, East Liv-
erpool, Ohio locations, but excluding all office clerical
employees, outside sales/rental persons, professional
employees, guards and supervisors as defined in the
Act.
(d) Within 14 days from the date of this Order, offer
Douglas Baker full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other rights
or privileges previously enjoyed.
(e) Within 14 days from the date of this Order, rescind
Robert Williams’ transfer to East Liverpool and assign-
ment of lower-level duties and restore him to his former
job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights or privileges previously enjoyed.
(f) Within 14 days from the date of this Order, rescind
disciplinary notices issued to Timothy Plunkett on July
13 and Robert Williams on July 21.
(g) Make Douglas Baker, Robert Williams, and Timo-
thy Plunkett whole for any loss of earnings and other
benefits suffered as a result of the Respondent’s unlawful
conduct in the manner set forth in the remedy section of
the judge’s decision as amended herein.
(h) Within 14 days from the date of this Order, remove
from its files any reference to the discharge or other dis-
ciplinary action against Baker, Williams, and Plunkett,
and within 3 days thereafter notify them in writing that
this has been done and that the discharge or discipline
will not be used against them in any way.
(i) 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.
(j) Within 14 days after service by the Region, post at
its facilities in Columbiana and East Liverpool, Ohio,
UNITED RENTALS 955
copies of the attached notice marked “Appendix.”8 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 8, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the 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 February 3, 2004.
(k) 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.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleged violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we 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 threaten you concerning your union or
other protected, concerted activities, including without
limitation by telling you that if you signed authorization
cards you sealed your fate; that employees suspected of
leading the organizational effort would be fired within a

8 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.”
few months; that the organizational effort would cause an
employee to lose his job and health coverage for his ill
daughter, would result in the elimination of annual
evaluations and pay raises, and would cause us to close
one or both of the Columbiana stores; that the genius
behind the organizing effort would cause us to close; that
if the Union prevailed or you voted for the Union,
Columbiana would be a miserable place to work, you
would lose promotional opportunities, medical benefits,
free use of company equipment, and assistance with your
work concerns, and there would be layoffs and you
would be sent home early; and by telling one of you, who
complained about earlier threats, that we were looking to
fire you and that you should not give us a reason to do
so.
WE WILL NOT coercively interrogate you about your
own or others’ union or other protected, concerted activi-
ties, including without limitation by asking why you
signed authorization cards and supported the Union,
whether you had any prior union activity, and how you
voted.
WE WILL NOT solicit grievances and promise to remedy
them, including without limitation by telling you that we
would take care of your pay concerns and increase the
pay at Columbiana; by telling one of you that we were
looking out for you and not to worry about disciplinary
action if you needed time off to care for your daughter;
and by asking you about your work concerns, giving you
business cards and soliciting your phone calls and e-
mails with problems and questions, and promising to
address your concerns if the Union lost the election.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting the International Union
of Operating Engineers Local Union Nos. 66, 66A, B, C,
D, O, and R, AFL–CIO (the Union), or any other union.
WE WILL NOT eliminate annual evaluations and pay
raises, or change policies concerning equipment rentals,
uniforms, and call-in procedures in order to discourage
you from supporting the Union or any other union.
WE WILL NOT refuse to bargain with the Union as your
exclusive collective-bargaining representative by making
changes in terms and conditions of employment without
first giving the Union notice and an opportunity to bar-
gain about such matters.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL conduct performance evaluations of all unit
employees from the period of March 2003 to February
2004, and promptly notify each of you of your pay raise
commensurate with such evaluation. Such pay increases
shall be retroactive to April 1, 2004. The unit is:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD956
All truck drivers, tractor trailer drivers, mechanics,
parts associates, and customer service associates, em-
ployed by us at our 44691 State Route 14, Columbiana,
Ohio and 16695 Lisbon Street, East Liverpool, Ohio
locations, but excluding all office clerical employees,
outside sales/rental persons, professional employees,
guards and supervisors as defined in the Act.
WE WILL, at the Union’s request, rescind the changes
we made in our equipment rental, uniform, and call-in
policies.
WE WILL, before making any changes in your wages,
hours, or other terms and conditions of employment, no-
tify and, on request, bargain with the Union as your ex-
clusive collective-bargaining representative.
WE WILL, within 14 days from the date of the Board’s
Order, offer Douglas Baker full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, rescind Robert Williams’ transfer to East Liver-
pool and assignment of lower-level duties and restore
him to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of the Board’s
Order, rescind the disciplinary notices issued to Timothy
Plunkett on July 13 and Robert Williams on July 21.
WE WILL make Douglas Baker, Robert Williams, and
Timothy Plunkett whole, with interest, for any loss of
earnings and other benefits suffered as a result of our
unlawful conduct.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our personnel files any reference to
the discharge or other disciplinary action against Baker,
Williams, and Plunkett, and WE WILL, within 3 days
thereafter, notify them in writing that this has been done
and that the discharge or discipline will not be used
against them in any way.
UNITED RENTALS, INC.
Catherine A. Modic and Rudra Choudhury, Esqs., for the Gen-
eral Counsel.
Daniel F. Murphy Jr. and Alex Tchernovitz, Esqs., of New
York, New York, for the Respondent.
Joseph Beasley, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. The Interna-
tional Union of Operating Engineers Local Union Nos. 66,
66A, 66B, 66C, 66D, 66O, and 66R, AFL–CIO (the Union)
filed the charge against United Rentals, Inc. (the Respondent)
in Case 8–CA–34853 on February 23, 2004.1 The General
Counsel filed the complaint in that case on April 30. The Un-
ion filed additional charges in Case 8–CA–35041 on May 6,
Case 8–CA–35196 on July 29, and in Case 8–CA–35319 on
September 24. On October 29, the General Counsel issued an
amended complaint consolidating the charges in Cases 8–CA–
34853, 8–CA–35041, and 8–CA–35319. That case is referred
to as the “initial case.” On December 20, the General Counsel
further amended the complaint to correct the caption to include
Case 8–CA–35319 and exclude Case 8–CA–35196. The com-
plaint alleged various coercive statements and changes in an-
nual employee evaluations and pay raises in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act). The
complaint also alleged selective enforcement of the Respon-
dent’s rental, uniform, and call-in policies, and discriminatory
disciplinary action in violation of Section 8(a)(3) and (1). The
Respondent essentially denied the material allegations. A hear-
ing was conducted on February 1–3 and March 15, 2005. The
parties submitted posthearing briefs on May 19, 2005.
On April 5, 2005, the National Labor Relations Board (the
Board) issued its Decision and Certification of Representative
in Case 8–RC–16598. On April 20, 2005, the Union filed a
second amended charge stating that the Respondent unilaterally
changed the following practices and policies: annual evalua-
tions and wage increases, employees’ use of rental equipment,
uniforms, and calling off work. On April 29, 2005, the General
Counsel issued a complaint and notice of hearing in Case 8–
CA–35196. That case is referred to as the bargaining case.
That complaint alleged that the Respondent unilaterally refused
to give its employees their annual evaluations and raises since
the date of the representation election. The complaint further
alleged that since April 1, the Respondent unilaterally changed
its policy concerning employees’ use of rental equipment, uni-
form policy, and employee call-offs from work. On May 12,
2005, the Respondent filed an answer essentially denying the
material allegations in the complaint.
On May 23, 2005, 4 days after the parties submitted
posthearing briefs, the General Counsel moved to reopen the
record and consolidate the initial case with the bargaining case.
On June 17, 2005, the Respondent submitted opposition papers.
By Order, dated July 8, 2005, I granted the motion, but ordered
a supplemental hearing to receive additional evidence regarding
the 8(a)(5) and (1) allegations. On August 30, I conducted a
supplemental hearing. On October 3, 2005, the parties submit-
ted supplemental posthearing briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation with offices and
places of business located throughout the United States, includ-
ing Columbiana and East Liverpool, Ohio. It is engaged in the

1 All dates are in 2004, unless otherwise indicated.
UNITED RENTALS 957
rental and sales of commercial construction equipment. Annu-
ally, in the course and conduct of its business operations, the
Respondent sells and ships goods valued in excess of $50,000
from its Columbiana and East Liverpool facilities directly to
customers located outside the State of Ohio. At all material
times, the Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent’s Operations
The Respondent supplies rental construction equipment, in-
cluding aerial boom lifts, fork lifts, and pickup trucks at branch
stores throughout the United States. The regional vice presi-
dent for the Respondent’s midwest region is Robert Blackadar,
and its regional human resource manager is Michael Albers.
The midwest region consists of 13 states, 6 districts, and 75
branches. Brian Stewart is the Respondent’s district manager
for the district that includes the Columbiana branch. The
Columbiana branch, which employs approximately 21 employ-
ees, consists of two stores—one in Columbiana and the other in
East Liverpool.
From 1972 to 2000, the Columbiana and East Liverpool
stores were owned and operated by Astra Rentals, which was
owned by Britt’s Inc. In 1987, Chris Britt succeeded his father
as president of Britt’s Inc. and managed Astra Rentals. In
2000, Britt’s Inc. sold Astra Rentals to the Respondent and
leased the Columbiana and East Liverpool stores to the Re-
spondent. The Respondent retained Chris Britt as its Columbi-
ana branch manager. He, in turn, relies on store managers at
each of two stores to run daily operations. The Columbiana
store manager is Chuck Millhorn; the East Liverpool store
manager is Mike Britt and its assistant store manager is Steve
Jasenec.
The disputed personnel practices at the Columbiana branch
include employee performance evaluations, pay raises, and free
equipment rentals. Employees normally received a perform-
ance evaluation in March of each year. The process is initiated
by the employee’s supervisor—either Chuck Millhorn or Bill
Smith at the Columbiana store or Michael Britt at the East Liv-
erpool store—and submitted to Chris Britt for approval. Pay
raises, based on the evaluation, followed every April.2 In addi-
tion, the Columbiana branch had a policy of permitting em-
ployees to use rental equipment free of charge provided that it
was not being leased to a customer. Chris Britt informed job
applicants about this fringe benefit when they were hired. The
practice contravened the Respondent’s formal policy permitting
employees to “rent available URI equipment at a discount of 50
percent from the Branch’s book rates, plus all charges for de-
livery and pickup, fuel, taxes, and any other specific costs con-
nected with the employer’s use of the equipment.” A com-
panywide memorandum was issued in January 2004 reiterating

2 Chris Britt’s testimony left no doubt that this was an annual prac-
tice that he suspended in 2004 at Stewart’s direction. (Tr. 792–793,
843.)
this policy.3 That memorandum was followed by a February 5
conference call between District Manager Brian Stewart and
branch managers, including Chris Britt.4 Stewart again rein-
forced the policy at the February supervisors’ meeting in De-
troit, which Chris Britt attended. Chris Britt returned to the
Columbiana branch on February 13, and told branch supervi-
sors about Stewart’s comments concerning the Respondent’s
employee rental policy.5
B. The Union Organizing Campaign
On February 9, 2004, several of the Respondent’s employees
attended a union organizing meeting. On February 11, 2004,
Joseph Beasley, the Union’s coordinator of organizing, filed a
representation petition and 10 supporting authorization cards
with the Regional Director of Region 8. On the same day,
Beasley faxed the representation petition and authorization
cards to Chris Britt. The material was accompanied by a trans-
mittal sheet entitled, “Notice of Concerted Activity,” and a
cover letter. The letter stated:
This letter is to inform you that ten of your employees, Doug-
las Baker, Brian Brooks, Edward Crow, Frank Morrezz,
Charles Muskgrove, Timothy Plunkett, James Six, William
Smith, Robert Williams, and Jason Woods, are currently in-
volved in assisting the International Union of Operating Engi-
neers Local # 66 in attempting to organize your company. I
have attached copies of their signed authorization cards for
your records. They are, and will continue to be, involved in
protected concerted activity that is protected by the National
Labor Relations Act. We would expect that you would re-
spect their rights under the law. Should you have any ques-
tions regarding this matter, please feel free to contact me at
412-856-8662.
Chris Britt was at a supervisors’ meeting in Detroit that day.
However, he was notified by the Columbiana branch and, in
turn, conveyed the information to Peter M. Meany, the Respon-
dent’s director of labor relations. Meany responded by letter
the same day:
We have received the enclosed fax from you today from you
[sic]. At the instruction of Mr. Britt who is not in the office
today, I am returning the entire fax to you, and have not kept a
copy. In the future, please follow NLRB procedures in this
matter.6

3 Baker conceded reading such a memorandum. (Tr. 502–503, 826–
827; R. Exh 8.)
4 I did not credit Stewart’s testimony on contested issues after cross-
examination revealed a sketchy, selective memory regarding his discus-
sions with Columbiana branch employees. In any event, the General
Counsel did not challenge Stewart’s assertion that he addressed em-
ployee equipment rentals within the context of the “rates initiative
program.” (Tr. 615–616.)
5 Chris Britt, Williams, and Baker all testified that free equipment
rentals were made available to employees prior to the March 26 elec-
tion. Nor is it disputed that Chris Britt told branch staff about Stewart’s
comments. However, how staff used that information during the con-
text of the organizing campaign is at issue. (Tr. 42, 139, 395–396, 826;
R. Exh. 8.)
6 GC Exh. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD958
C. The Respondent’s Preelection Actions
1. Chris Britt’s February 13 meetings with employees
Upon returning on February 13, Chris Britt held one-on-one
meetings with three Columbiana branch employees: Robert
Williams, Brian Brooks, and Jason Woods. He also met that
day with Timothy Plunkett, an East Liverpool employee. Chris
Britt’s discussion with Woods was brief, but his discussion
with the others was more extensive.7
In his conversation with Williams, a Columbiana store truck-
driver, Chris Britt said that he had a list of 10 employees, in-
cluding Williams, who signed authorization cards. He told
Williams that these employees “sealed their fate.” Chris Britt
also said he suspected that Williams and Bill Smith were the
leaders of the union organizing effort, Williams would be fired
within 3 months, and Smith would not be far behind. Chris
Britt opined that a union was not necessary and then asked
Williams what prompted him and other employees to sign au-
thorization cards. Williams explained that wages at the Colum-
biana branch were lower than those at the Respondent’s union-
ized branches, workers attempting deliveries at General Motors
in Lordstown, Ohio, were embarrassed by unionized workers
there, and Bill Smith was annoyed at being passed over for a
promotion. Chris Britt responded that the cost of living in
those branches was higher and addressed Williams’ concern by
stating that the Respondent would discontinue deliveries to that
location. He also suggested that Williams’ organizing activity
would cause Brian Brooks, whose daughter suffers from Cystic
Fibrosis, his job and health coverage. With respect to Wil-
liams’ concern about pay, Chris Britt explained that annual
evaluations, typically held in March each year, would not be
done. That, in turn, derailed a $1.50 per hour pay raise that was
likely in April. He also told Williams that the “genius” behind
the organizing effort would cause the Respondent to close one
or both of the Columbiana branches.8
Chris Britt took a somewhat softer approach with Brooks, a
mechanic at the Columbiana store. He started their closed door
meeting pretty much the same way—by telling Brooks he had a

7 I did not find Chris Britt to be a very credible witness. In contrast
to the Respondent’s employees called as witnesses by the General
Counsel, much of his testimony was guarded and vague regarding the
details of relevant events. As such, where his testimony conflicts with
that provided by the General Counsel’s witnesses, I adopted the latter.
8 I found Williams to be a credible witness. He had excellent recol-
lection of the facts, although they came out in a haphazard fashion, and
seemed genuinely emotional when discussing Chris Britt’s veiled threat
regarding Brooks’ daughter. I was especially impressed with his spon-
taneous recollection of the facts on cross-examination. Williams and
Britt provided generally similar testimony regarding the scope of their
conversation on February 13. Chris Britt testified that: he was “not
happy” upon learning of the organizing campaign; told Williams that
the Union was not necessary at the Branch; explained that wages there
were lower than at the unionized branches because of the cheaper cost
of living; and he told Williams he would be unhappy there regardless of
the pay scale. However, he denied: telling Williams or any other em-
ployee he was unhappy about the representation petition; threatening to
fire Williams or close the branch; or promising Williams a raise. I do
not credit Chris Britt’s testimony in this regard and rely on Williams’
version of the meeting. (Tr. 26, 29, 70–87, 785–789.)
problem with the Union, and asking him why he signed an
authorization card and about any concerns with working condi-
tions at the store. Brooks told Britt about the harassment prob-
lem at the General Motors’ plant in Lordstown. After telling
Brooks that employees would not receive their annual evalua-
tion because they had signed authorization cards, Chris Britt
stated that he was simply trying to look out for Brooks and his
daughter.9
In his brief meeting with Plunkett, a truckdriver at the East
Liverpool facility, Chris Britt started the conversation by refer-
ring to Plunkett’s 6-month old daughter. At the time,
Plunkett’s daughter was hospitalized with pneumonia. Chris
Britt told Plunkett, notwithstanding his union activity, not to
worry about disciplinary action if he needed time off to care for
his daughter. He then proceeded to discuss the union campaign
with Plunkett, telling him that “if it wasn’t for this union activ-
ity that we would all receive $1.50 an hour raise at our evalua-
tion.”10
2. Millhorn’s February 16 meeting with Baker
Millhorn, the assistant manager of the Columbiana store,
also made antiunion statements to employees. On February 16,
he took Douglas Baker, a laborer, to an isolated portion of the
showroom to discuss the union campaign. During the discus-
sion, which lasted about 2 hours, Millhorn inquired as to
Baker’s reasons for supporting the Union. Baker prefaced his
remarks with a comment that he did not want anyone to take his
union support personal. Millhorn then asked whether money
was an issue. Baker explained that it was, but added that the
Columbiana store was a great place to work. That prompted
Millhorn to say that it was “going to be a [expletive omitted]
miserable place to work. I’ll guarantee you that.” Millhorn
then threatened employees: would lose promotional opportuni-
ties, medical benefits, and the free use of company equipment;
were “going to get [expletive deleted] laid off”; and, during
slow work periods, “once you get your deliveries done, go
ahead and punch out, you’re [expletive omitted] going home.”11

9 I found Brooks’ testimony credible. Although nervous, his an-
swers were spontaneous and he did not stretch to come up with answers
to questions. He even readily admitted a mistake on an insignificant
issue in an affidavit he gave the General Counsel (Tr. 350–354.) On
the other hand, Chris Britt testified that he “just really discussed that a
petition had been filed. Brian had brought up the Wardston project as
well, and the confrontations that he had there, the awkwardness being
on that project, and the confrontation. I too told him that we were
going to try to avoid sending service techs and drivers to that job.” (Tr.
790.)
10 Plunkett was also a credible witness and I base this finding on his
testimony. His testimony was equally as steady, responsive, and spon-
taneous on cross-examination as on direct testimony. (Tr. 285–286.)
Chris Britt testified that the conversation related to Plunkett’s newborn
child and “wasn’t union associated or the campaign associated.” (Tr.
842.) The overwhelming evidence belies such an assertion.
11 Baker’s unrefuted testimony regarding this conversation was very
credible. He provided specific details concerning the time of the dis-
cussion, even recalling that another employee, Dave Matts, interrupted
them to discuss the next day’s reservations. (Tr. 409–416.) The Re-
spondent, on the other hand, failed to call Millhorn to rebut the allega-
tions. Instead, it argues that Baker’s act of tape recording the conversa-
tion, not offered by the General Counsel, violated company policy and
UNITED RENTALS 959
3. Blackadar and Stewart’s March 15 meetings with employees
The Respondent’s upper management converged on the
Columbiana branch on March 15. On that day, Regional Vice
President Rob Blackadar and District Manager Brian Stewart
met with Columbiana branch employees and presented the
Respondent’s antiunion position. Three employees testified
concerning their conversations with Blackadar: Williams,
Brooks, and Plunkett; one employee, Baker, testified concern-
ing his conversation with Stewart.12
Blackadar gave his standard pitch in such instances, engag-
ing in “small talk” before apprising each employee as to the
Respondent’s preference that the Company remain union-free
and typically telling each employee: “I would like you to vote
no, but I don’t say you have to vote no, or anything like that.”
He approached Williams in the parts room of the Columbiana
branch, introduced himself, and said he was there to speak
about the election the next day. He added that he was also the
contract negotiator for union contracts, but explained that he
and the Respondent did not like unions; their preferred ap-
proach to problems was to work problems through the branch
manager, then to the district manager and up to his level.
Blackadar then asked Williams if he wished to discuss any
concerns. Williams shared his concerns, including the view
that too many Britt family members worked at the Columbiana
branch and availed themselves of free company fuel, rentals,
and deliveries. Blackadar responded that the Columbiana
branch was a smooth running operation and he never heard of
any problems there until they came “to light because of this
union situation.” Blackadar gave Williams his business card
and cellular telephone number. He also informed Williams
that, if the Union lost the representation election, he would
return in April to address employees’ concerns. Blackadar
noted, however, that he would not return if the Union prevailed,
since there would be nothing he could do because he would
then be entering negotiations with the Union.13

constituted an independent basis for termination—even though the
Respondent did not terminate him for that reason. As discussed below,
that argument lacks merit. In any event, the General Counsel provided
the Respondent’s counsel with a transcript of the tape recording, as well
as an opportunity to listen to the tape, on January 31—1 day before the
hearing began. (Tr. 421–423, 465–481; GC Br. at 45; R. Exh. 4, p. 3;
R. Br. at 58.). As such, I do not draw an adverse inference either way
due to the failure to produce the tape.
12 There was conflicting or vague testimony regarding the date of
Blackadar’s conversation with Columbiana branch employees. Blacka-
dar could not recall exact dates but adopted March 15 pursuant to a
leading question from counsel. (Tr. 550, 555.) Williams insisted they
met on March 25, the day before the election. (Tr. 94–95, 195.)
Brooks testified that the discussion occurred “approximately a week
before the election.” (Tr. 355.) Plunkett was not asked about the date.
(Tr. 276.) In any event, since Stewart also visited that March 15, I
found that day to be the day Blackadar spoke with Columbiana branch
employees. (Tr. 417.)
13 I relied primarily on Williams’ version of their conversation. (Tr.
95–98.) Williams’ specific details of the conversation were consistent
with Blackadar’s vague testimony that he approached employees, made
small talk, and discussed the Union and the election. Blackadar was
not, however, credible in his assertion that he did not solicit grievances.
He attempted to downplay employees’ complaints as “a little bit of
In his conversation with Brooks, Blackadar said he was
aware that the employees “had pay issues in our shop, and if
given the chance, we have, we’re going to have an election, we
have the right to vote. He wants us to make sure that we’re
there to vote. Given the chance, he would like to take care of
the issues that we have with pay, and he asked me if I had any
other issues.” Brooks alluded to his meeting with Chris Britt
and the problem with delivering to the union worksite in
Lordstown. Blackadar handed him a business card and sug-
gested Brooks call or e-mail him with any problems or ques-
tions.14
In his 20-minute conversation with Plunkett, Blackadar
asked about his reasons for supporting the Union and any con-
cerns he had. Blackadar did not tell Plunkett how to vote, “but
he naturally would want, you know, it to go no [sic], the other
way.” Plunkett complained about his level of pay and making
deliveries on company time with company equipment and vehi-
cles to Chris Britt’s house. Blackadar acknowledged that the
pay scale at the Columbiana branch was low and he was going
to “try to make everything right for people.”15
In his conversations with Columbiana branch employees,
Stewart was also confronted with questions and concerns about
wages and branch management, including favoritism, no-
charge contracts, and promotional opportunities. In his conver-
sation with Baker during the morning, Stewart asked Baker
what issues contributed to his desire to bring in the Union.
Baker told him. Stewart then asked Baker if he had any prior
union activity. Baker explained that he was previously a mem-
ber of three different unions and that the union took care of his
father, a lifelong union member, after he suffered a stroke.
Later that day, Stewart also met in the shop area with a group
that included Williams, Smith, Brooks, Baker, and Jim Six,
another laborer/driver. Williams did most of the talking on
behalf of the employees. He complained that Columbiana
branch employees were paid less than employees at other
branches. Stewart agreed but, when Baker asked whether em-
ployees would receive pay increases in April, responded that he
could not discuss that issue because it could be considered a
bribe. Baker persisted with a suggestion that it would be illegal
if the Respondent withheld a scheduled pay raise. Stewart then
responded that the Union would accuse the Respondent of an
illegal bribe if it were to award pay raises. Stewart did add,
however, that he had “seen the evaluations for that prior year
and he said that we were scheduled to get them on April 1.”
Regarding the relative adequacy pay level at the Columbiana
branch, Stewart said it was the “lowest paid in the district and
he was going to bring it up to a level pay scale with the rest of
the [district].”16

frustration on behalf of some of the employees,” as if to suggest there
were no complaints to solicit. It was clear from his testimony, how-
ever, that several employees complained about the number of Britt
family employees working at the branch. (Tr. 548–551.)
14 This finding is based on Brook’s credible and specific testimony
regarding their conversation. (Tr. 355–356.)
15 This finding is based on Plunkett’s credible and specific testimony
regarding their conversation. (Tr. 277–278.)
16 This finding regarding Stewart’s statements is based on Baker’s
very specific and credible testimony. (Tr. 417–420.) Stewart denied
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD960
On March 17, Chris Britt distributed a followup letter from
Blackadar to each of the Columbiana branch employees:
Thank you for taking the time to speak with me on
Monday. I told you that my integrity and the integrity of
our management team meant everything to me. I mean it.
This election is not about the past. I know that we
have made mistakes and I am willing to take responsibility
for all the mistakes that I have made. However, you
should know that our management team, Brian, Chris and
I, are all concerned about you. We are all rational people
who can calmly discuss any issue. We are asking you to
give us a chance to prove ourselves.
Please do not be fooled by false Union promises of
free insurance. Nothing in life is free. We all pay for in-
surance, one way or another. Please take the time to ask
all of your questions about our health plan and the Union
plan. We are proud of our employee benefits, which Mike
Albers has explained to you.
I want everyone to know that no one will lose his job
because of how he votes in the election on March 26,
2004. I ask you to vote “NO” because I believe that to-
gether we can continue to make this branch successful. I
ask you to vote “NO” on March 26, 2004 because the
Company has given you good reason to vote “NO”. I do
not want you to vote yes because the Union or someone is
scaring you into believing that unless you vote for the Un-
ion you will be fired. That is simply not true. You have
my word on that. Please give us a chance by voting “NO”.
I look forward to speaking with you again.17
D. The March 26 Election and Its Procedural Sequelae
Pursuant to the petition filed by the Union in Case 8–RC–
16598 and a stipulated election agreement between the Union
and the Respondent, a representation election was held on
March 26 among employees in the following unit:
All truck drivers, tractor trailer drivers, mechanics, parts asso-
ciates, and customer service associates employed by the Re-
spondent at its 44691 State Route 14, Columbiana, Ohio and
16695 Lisbon Street, East Liverpool, Ohio locations exclud-
ing all office clerical employees, outside sales/rental persons,
professional employees, guards and supervisors as defined in
the Act.
By a vote of eight in favor and seven opposed, the Columbi-
ana branch employees selected the Union to be their collective-
bargaining representative.18
Following the representation election, the Respondent filed
timely objections. On May 7, however, Joseph Beasley, the
Union’s coordinator of organizing, sent a letter to Chris Britt.
The letter referred to the representation election on March 26,
the vote resulting in favor of the Union as employees’ collec-
tive-bargaining representative, and the Regional Director’s

interrogating employees about their union activities, soliciting griev-
ances, or promising wage increases. However, he conceded agreeing
with the employees that they were “underpaid.” (Tr. 599–605.)
17 Tr. 790; R. Exh. 7.
18 GC Exh. 18; Tr. 794, 881–882.
certification of the election results. Beasley requested, in an-
ticipation of collective bargaining, that the Respondent provide
the Union with 13 categories of information and documentation
relating to employee hiring dates, wage rates, disciplinary his-
tories, and fringe benefits. Beasley concluded by stating the
Union’s “desire to begin negotiations as quickly as possible.
Please contact me at your earliest convenience so that we can
arrange some dates to meet. If you have any questions regard-
ing these requests, please direct them to my attention. I can be
reached at 412-856-8662, Ext. 17.” Chris Britt forwarded the
letter to Meany.19 The Respondent, however, never responded
to Beasley’s letter.
On April 5, 2005, the Board overruled the objections and
certified union representation. On April 20, 2005, Union Rep-
resentative Alan Pero sent a letter to Chris Britt informing him
of this event and requesting that the Respondent bargain. In
preparation for such bargaining, Pero requested copies of all
company policies and procedures, wage rates and benefits, as
well basic personnel information for each employee. At some
point between April 20 and June 8, 2005, Meany responded to
Pero’s request for information.20
On June 8, 2005, the Union and the Respondent conducted
their first negotiating session in Cleveland, Ohio. The Respon-
dent was represented by Meany and the Union was represented
by Pero. At this initial session, the Union provided the Re-
spondent with a written proposal. The written proposal was a
20-page document describing proposed terms and conditions of
employment. On July 7, 2005, the parties met again for the
second bargaining session. Again, Meany represented the Re-
spondent and Pero represented the Union. At this session, the
Respondent submitted a written counterproposal. The written
counterproposal responded to each and every proposal by the
Union and described various terms and conditions of employ-
ment. The parties have agreed to meet again to continue the
negotiation process.21
E. The Respondent’s Employment Actions After the
March 26 Election
The complaint alleges that, following the March 26 election,
the Respondent took adverse action against employees. The
alleged acts consisted of interrogation by an auditor as to how
an employee voted, suspension of annual evaluations and pay
raises, changes in uniform requirements and employee equip-
ment rental policies, and discriminatory treatment of prounion
employees Williams, Plunkett, and Baker.
1. The March 31 audit
Dave Bellinger, an internal auditor employed by the Respon-
dent, visited the Columbiana branch on March 30 and 31. The
visit was precipitated by a telephone call on a hotline received
by Global Compliance Services (GCS), the Respondent’s ethics
and compliance contractor. Pursuant to procedure, the call was
forwarded to “someplace in management within the Com-

19 GC Exh. 19; Tr. 929–930.
20 R. Exh. 11; Tr. 918–919.
21 The parties stipulated to the relevant facts involving the Respon-
dent’s alleged failure to bargain pursuant to Sec. 8(a)(5). (Tr. 920–921;
R. Exhs. 12–13.)
UNITED RENTALS 961
pany.”22 Bellinger asked branch employees four standard ques-
tions that he asked in every audit: whether the employee was
aware of any company policy violations; whether the employee
was aware of any violations of law; whether the employee was
aware of any unethical employee behavior; and whether there
were any situations that needed to be addressed. However, in
the course of his conversations with employees, he learned of
the recent representation election. He also mentioned hearing
that the election had been close and asked Williams, “were you
an eight or a seven.” Williams told him that he “was an eight.”
Bellinger gave Williams his business card and reassured him
that everything they discussed would be held “in confidence
and would be forwarded on to Mr. Blackadar.” Bellinger also
told Williams that “he had spent a little more time” with him
“than any of the other employees that he had met with that day
and, if questioned about why he spent so much time speaking
with him, that Williams should tell branch management “he
was checking over all the documents, being the insurance and
the log book.”23
Bellinger also spoke with Baker. Bellinger asked him about
any illegal activities that may have taken place at the Columbi-
ana store branch. Baker told Bellinger about the tape. Bellin-
ger said that Blackadar would probably like to listen to the
recording. Blackadar called Baker at home that evening and
asked him what was on the tape. Baker told him. Blackadar
then asked if Baker had the tape. Baker said he did not.
Blackadar then asked Baker to get a copy of the tape so they
could meet and listen to it. It does not appear that Baker re-
sponded to that request.24
2. Annual evaluations and pay raises
The Respondent has a companywide policy for the initiation
of performance evaluations at the branch level. Every year
since the Respondent took over operations in 2000, Columbiana
branch supervisors would complete an employee’s performance
evaluation and hand it to Chris Britt. After reviewing and ap-

22 Neither Stewart nor Chris Britt had advance warning that Bellin-
ger was coming to the branch. (Tr. 614–615, 794–795.) According to
its mission statement, GCS provides companies with “outsourced ethics
and compliance solutions” by implementing “internal controls to con-
form to government and industry regulations and enhance overall busi-
ness performance.” Their services include “Hotline and Web Report-
ing, Information Management, Field Research and Awareness and
Training.” http://www.globalcompliance.com/company/index.html.
There was no testimony explaining who the hotline call was forwarded
to in “management.” Nevertheless, there is no evidence to suggest that
Bellinger’s visit was triggered by anything other than a call to the GCS
hotline. (Tr. 577.)
23 Bellinger denied asking employees how they voted or felt about
the unions. (Tr. 579–580.) However, I found Williams’ version of
their conversation more credible. In contrast to Bellinger’s flat denials,
Williams provided a plausible explanation as to how Bellinger learned
about the election during the course of the audit. (Tr. 99–100.)
24 This finding is based on Baker’s unrefuted testimony. There is no
complaint allegation, however, that either Bellinger or Blackadar vio-
lated the Act by asking Baker about the tape and its contents. Baker
could not recall mentioning anything about the Union during his con-
versation with Blackadar and it appears that his interest in the tape and
its contents is attributable to Bellinger’s investigation into the branch’s
rogue policy regarding free equipment rentals. (Tr. 420–423.)
proving the form, Chris Britt would meet one-on-one with the
employee.25 Pay raises were then awarded in April.
In 2004, however, the Respondent decided to suspend
evaluations on the ground that it would be unlawful to grant
raises during the pendency of a contested union campaign.26
Chris Britt confirmed this to Williams on April 20, when he
explained that annual performance evaluations and pay raises
were on hold because Stewart was concerned “about the one on
one meetings, implications to evaluations” of employees and
“grievances or issues they might have with discussing
wages.”27
3. Rental policy changes
The Respondent’s employee handbook provides, in pertinent
part, a written policy regarding employee use of company
equipment:
3. Employees may rent available URI equipment at a dis-
count of 50% from the Branch’s book rates, plus all charges
for delivery and pickup, fuel, taxes and any other specific
costs connected with the employee’s use of equipment.28
Nevertheless, prior to the March 26 election, Chris Britt had
a separate policy at the Columbiana branch—one that allowed
branch employees to use company equipment at no-charge,
provided the equipment was not requested by a paying cus-
tomer.29 In a conference call in February, Stewart did remind
Chris Britt and other branch managers about the Respondent’s
national policy prohibiting no-charge contracts.30
After the March 26 election, as Millhorn warned Baker on
February 16, the employee equipment rental policy changed.
On April 1, Chris Britt informed Plunkett that there would be
no more free rentals and that he would have to wear his full
uniform—not just the uniform shirt.31 In addition, Baker was
charged for the use of equipment on May 8, while Williams
was charged for signing out equipment on June 1.32
In a letter, dated May 22, Stewart formally counseled Chris
Britt for violating the Respondent’s employee equipment rental
policy:
Please be advised that this letter is intended to be a written
warning for violating PPB for the past several years at your

25 Albers and Chris Britt confirmed that evaluations were done on a
yearly basis. (Tr. 659–660, 792–794.)
26 The Respondent did not refute credible testimony by Williams,
Plunkett, and Brooks that pay raises were awarded every year in March
and April. (Tr. 84–85, 283–285, 352–354.)
27 Chris Britt’s testimony was consistent with Baker’s version of
their discussion. (Tr. 147–148, 792, 848.)
28 R. Exh. 8.
29 Tr. 42, 139.
30 I did not find credible Chris Britt’s testimony that Stewart told
him at the Detroit managers’ meeting that he would be disciplined for
no-charge contracts at the Columbiana branch. (Tr. 818–819.) First,
Stewart testified that he simply discussed the policy with Chris Britt
and other branch managers in a February 5 telephone conference, with-
out any mention of discipline. (Tr. 611–616.) Secondly, Chris Britt
was not “disciplined” until May 22—over 3 months later. (R. Exh. 6.)
31 Plunkett testified that the discussion occurred a week after the
election. (Tr. 279–281.)
32 Tr. 145, 397–398; GC Exh. 7, 11.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD962
branch. Going forward renting United Rentals equipment to
employees for “0” no charge will result in disciplinary action
up to terminations. For your information, the current policy is
all employee rentals will be invoiced at 50% of manager rate.
4. Uniform requirement
Prior to March, the Respondent had a vague dress code. Its
written policy merely stated that employees could be disci-
plined for failing “to present a proper appearance or wear uni-
form in prescribed manner” or wearing “required safety equip-
ment including protective footwear and eyeglasses in all appli-
cable job classifications.”33 Employees were issued a shirt with
the company logo and blue khaki pants when hired. Prior to
March, however, Chris Britt permitted employees to wear com-
pany sweatshirts. He also permitted truckdrivers to wear jeans.
In March, however, Chris Britt changed the branch policy. The
change was not done at Stewart’s direction. Stewart never
discussed the issue with branch managers and, in fact, visited
the Columbiana branch in February and did not notice any
dress code problems.34 Stewart would reprimand employees
during branch visits if he noticed that they were not wearing the
company-issued button-down shirt and khakis. However, he
did not discuss the issue with branch managers and, in fact,
visited the Columbiana branch twice in February and did not
notice any dress code violations.
Prior to the election, at least two employees, Williams and
Plunkett, wore jeans to work. On or about April 1, Chris Britt
and Michael Britt changed the branch dress policy. Chris Britt
informed Williams that he could no longer wear jeans. At the
East Liverpool store, Michael Britt informed Plunkett that he
would need to comply with the company dress policy. On that
occasion, however, Plunkett was wearing company-issued
pants and a company sweatshirt. Michael Britt informed him
that he was out of uniform and directed him to go home and
change into a company shirt. Plunkett responded that Chris
Britt told him when he was hired that he could wear sweatshirts
and, in fact, employees at the Columbiana store wore sweat-
shirts. Michael Britt professed to have no knowledge of such a
policy and told Plunkett to just go home and change into the
shirt.35
5. The Respondent’s treatment of Williams
Williams was a known supporter of the Union. He attended
a preelection hearing at the Board’s Regional Office in Febru-
ary and served as the Union’s observer at the representation
election on March 26. Prior to that time, he had never been

33 R. Exh. 9, Sec. II(3).
34 Chris Britt’s assertion that he changed the policy in order to com-
ply with Stewart’s directive is not credible, as it conflicts with Stew-
art’s testimony in this issue. (Tr. 838–839.) Stewart testified that he
reprimanded employees during branch visits if he noticed that they
were not wearing the company-issued button-down shirt and khakis.
However, he did not discuss the issue with branch managers and, in
fact, visited the Columbiana branch twice in February and did not no-
tice any dress code violations. (Tr. 629–631.)
35 I arrived at an April 1 date on the basis of Williams’ testimony
that his conversation occurred shortly after the election, while Plunkett
testified that his conversation occurred “probably first week of April,
right after the election.” (Tr. 149–150, 281–283.)
disciplined. Shortly after the election, Williams began to re-
ceive written warnings.
On April 20, Safety Officer Matt Roberts issued Williams a
disciplinary notice and written warning for violating company
procedure relating to securing of equipment:
Bob Williams left our lot on Tuesday April 20, 2004 hauling
a mini excavator. The excavator was only anchored at one
end of the machine and there was no tie down on the boom.
Bob has been through training and knows the proper proce-
dure for equipment tie downs.36
Williams objected to the notice, refused to sign the form, ex-
plained that his actions complied with Ohio’s transportation
code, and insisted they discuss the matter with Chris Britt.
Williams and Roberts met with Chris Britt. Chris Britt agreed
with Roberts that Williams was wrong for not tying-down the
boom and told Williams that he needed to sign the disciplinary
notice. Williams disagreed and explained that he secured the
equipment the same way he always did. Nevertheless, he reluc-
tantly signed the form. Williams then contacted District Safety
Officer Russ Jennsome and explained the circumstances. Jenn-
some researched the issue and called Williams back the next
day. He informed Williams that his action did not violate ap-
plicable transportation code sections. Williams then went to his
supervisor, Millhorn, and asked him to rescind the discipline.
Millhorn, however, said he was not responsible for the disci-
pline and referred Williams to Chris Britt. Chris Britt told Wil-
liams that he had been thinking about rescinding the discipline
because he realized that Williams had never received proper
training on tying-down equipment. He also told Williams that
he was considering sending him for training on how to properly
tie-down equipment. Williams told Chris Britt that was fine
with him. Chris Britt subsequently removed the disciplinary
notice from Williams’ personnel file, but left a copy in Wil-
liams’ safety file. Employees’ safety files include any training-
related information.37
On June 20, Chris Britt informed Williams, a delivery truck
operator, that he was being transferred to the East Liverpool
store starting June 23. The need for that position arose because
Chris Britt needed a tractor-trailer driver at the Columbiana
store and was transferring Frank Morrell, another union sup-
porter, from the East Liverpool store to fill that position. Wil-
liams had driven a semitractor trailer truck until 2002, when he
was nearly seriously injured while unloading machinery from
his vehicle. At Williams’ request, Chris Britt no longer as-

36 GC Exh. 5.
37 Williams and Chris Britt provided fairly consistent testimony on
this issue, but disagreed as to whether Chris Britt told Williams he
would remove the disciplinary notice from his personnel file. (Tr. 101–
110, 801–804.) On this point, I rely on Chris Britt’s explanation that he
told Williams he would remove it from his personnel file and, in fact,
did so. Williams conceded that he never looked at his personnel file to
prove otherwise. Furthermore, it is of no legal consequence that Chris
Britt left the notice in the safety file for “training” purposes. Williams’
concession that he agreed to receive training on tying down equipment
indicates that the Respondent’s procedures were more stringent than
Ohio’s transportation requirements. To the extent that the notice went
into a general training file merely reflects good safety policy.
UNITED RENTALS 963
signed him to operate tractor trailers. Williams asked how long
he would be at the East Liverpool store. Chris Britt informed
him that he was assigned there indefinitely, but his job title,
duties, pay, and benefits remained the same.38 Williams then
contacted Blackadar to complain about the transfer. Blackadar,
however, told Williams there was nothing he could do for him
because he had participated in the election and voted for the
Union. He also told Williams that he should speak with the
Union about the problem, although it did not appear to him that
the Union was doing anything for the employees. Williams
replied that Chris Britt was not recognizing the Union and that
things were getting worse at the Columbiana store. Blackadar
said that was unfortunate, but that issues needed to be ad-
dressed to the Union and he was no longer available to address
such issues.39
Williams reported to the East Liverpool store on June 23,
and met Assistant Manager Steve Jasenec. Jasenec, however,
told Williams that he had no pickups or deliveries for him, and
directed him to “go in the back and labor.” Prior to his arrival,
Charlie Muskgrove handled those duties. A short while later,
Michael Britt spoke with Williams in the presence of Jasenec
and Charlie Muskgrove. Michael Britt welcomed Williams to
the branch and proceeded to explain his duties. Williams was
to serve as the backup driver to Don Petri and sweep, mop the
floors, take out the trash, and clean the restrooms every day.
Petri, a delivery truckdriver like Williams, was hired in 2002;
Musgrove, a laborer, was hired in 2003. Williams asked if he
was demoted and Michael Britt responded that his transfer was
“as big a shock to him as it was [Williams] to be there.” Wil-
liams recounted his conversation with Chris Britt regarding the
continuation of Williams’ truckdriving duties, but Michael Britt
responded that he had not spoken with his brother and was
unaware of such a discussion. Michael Britt then told Wil-
liams, “[y]ou do as I say, you work for me.” Later that day,
Jasenec asked Williams to go in the field and perform mainte-
nance work on a machine. As Jasenec was instructing Wil-
liams, Michael Britt interrupted and said, “[w]hy are you send-
ing Bob anywhere. You don’t need to send him outside. You
don’t need to send him out of the facility into the field.” Mi-
chael Britt added that mechanic Ed Crowe could do the job, but
Jasenec explained that Crowe was busy working on three ser-
vice calls. Michael Britt rejected Jasenec’s advice, told him to
have Crowe handle the machinery maintenance task, and have
Williams resume working as a laborer in the store.40

38 Williams and Chris Britt provided fairly consistent testimony on
this issue. (Tr. 111–112, 248, 256–257, 804–806.) Most significantly,
Williams did not rebut Chris Britt’s assertion that Williams had an
encounter with a tractor trailer in 2002, and did not wish to operate one
any more. (Tr. 859–860.)
39 This finding is based on Williams’ credible and unrefuted testi-
mony. (Tr. 113–114.) Blackadar did not address this conversation, but
did testify that the Respondent did not recognize the Union and that he
still told Baker, during another conversation, that he should contact the
Union regarding any workplace issues. (Tr. 555, 569–570.)
40 I found Williams to be more credible than Michael Britt and relied
on his version of the events of June 23. (Tr. 116–118.) First, Michael
Britt’s assertion that Chris Britt merely told him that he was transfer-
ring Williams to his branch conflicts with Mike Britt’s testimony that
The month that followed did not go smoothly for Williams.
Williams was absent from work on June 11, a Friday, June 21,
a Monday, and July 13, a Tuesday. However, in each instance,
Williams called-in to work to notify a supervisor that he would
be out that day. On July 21, Chris Britt issued Williams a “first
warning for unacceptable attendance” because he “called-off”
on days that were adjacent to weekends or other time off. Wil-
liams refused to sign the form and insisted he was sick on those
days and would provide doctor’s notes. He never did.41
During the morning of September 9, Williams spoke with
Michael Britt about Plunkett’s consistently being sent home
early because of the lack of work. Williams offered to take his
place that day if the store needed to send someone home early.
Williams also noted, referring to his stomach, that he had
“downstairs plumbing problems.” At 9 a.m., Jasenec told Wil-
liams that work was slow and he could clock out.42
Williams clocked out and drove to nearby Calcutta. After
visiting his bank and refueling his vehicle, Williams drove to
the Columbiana store sometime between 9 and 10 a.m. He
approached Chris Britt outside the store and asked to speak
with him. Chris Britt asked what Williams was doing there,
since it was his understanding that Williams had plumbing
problems. Williams responded that he was there “to find out
why—uh, why people are being sent home and when you got
this guy here sucking you dry.” Williams was referring to Jeff
Cornell, a Columbiana store employee smoking a cigarette a
few feet away from Chris Britt.43 Chris Britt then told Wil-

he told Chris Britt he was transferring Williams there because he
needed Morrell at the Columbiana store. (Tr. 752, 805.) Secondly,
Michael Britt did not deny Williams’ testimony regarding the exchange
between Williams, Jasenec, and Michael Britt, which was witnessed by
Muskgrove. Third, Michael Britt’s testimony on cross-examination
was, to a significant extent, evasive and nonresponsive. Furthermore, it
is noted that the Respondent did not call either Jasenec or Muskgrove to
dispute Williams’ testimony regarding Michael Britt’s statements. (Tr.
739–740, 753–760.)
41 The General Counsel challenges Chris Britt’s testimony that the
called-off days were adjacent to “scheduled time off” or scheduled
“vacation” because there is no evidence of Williams’ vacation time.
(Tr. 806–807; GC Br. at 30.) There is a paucity of evidence on this
point. The General Counsel elicited Chris Britt’s testimony that he
issued the warning, but left it at that. (Tr. 43–44.) Williams testified
on this point, but merely confirmed receipt of the warning and the fact
that he had never before been disciplined for attendance. (Tr. 137–
138.)
42 The General Counsel and the Respondent made a big issue regard-
ing Williams’ alleged stomach problems. I find that Williams did refer
to plumbing problems, but it was likely an additional comment in addi-
tion to his gesture to take off early in place of Plunkett. Given the
acrimony that ensured later that day when Williams confronted Chris
Britt at the Columbiana store, I find it unlikely that Chris Britt would
not have disciplined Williams for begging off work for false medical
reasons. (Tr. 152–154, 746–747.)
43 Cornell testified that Williams asked Chris Britt, “[w]hat do you
got to do around here so that you don’t get sent home?” And he
pointed towards me and he said,” You’ve got to suck you dry to—so
you don’t have to get sent home.” (Tr. 693.) That account varied,
however, from the testimony of Chris Britt and Williams. Although I
adopted Chris Britt’s testimony, both recalled the statement to be in the
nature of an accusation that Cornell was “sucking” either Britt or the
payroll “dry.” (Tr. 155, 810.) I do not, however, subscribe to the view
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD964
liams that he knew he “had troops on the job,” there was no
reason for him to be there and he needed to leave. Williams
insisted he had a right to be there, said he was a paying cus-
tomer and followed Chris Britt into the store. Chris Britt told
him to leave the employees alone and not to get into any con-
frontations. Once inside, Williams asked Greg Habboth, a
salesman, about his fair tickets. Habboth did not respond and
was following Chris Britt when Williams commented that Hab-
both “caused an economic hardship on my family by not sup-
plying me these fair tickets.” Chris Britt turned to Williams
and insisted, once again, that he leave the employees alone. At
that point, Williams left the store, walked across the street to
speak with two union organizers sitting in a car. The organiz-
ers were there protesting unfair labor charges against the Re-
spondent, but it was raining at the time. Williams asked them
for an extra picket sign and proceeded to picket the Columbiana
store on an adjacent lot. He left after 20 minutes and drove
home. However, Williams’ wife then drove him to the East
Liverpool store. Once there, he picketed that store.44
The following day, September 10, Chris Britt consulted with
Meany, Stewart, and Blackadar and decided to suspend Wil-
liams for 3 days. He later drove to the East Liverpool store,
met with Williams, and informed him of the disciplinary action.
Williams asked why he was suspended. Chris Britt explained
that the action was based on Williams’ insubordination and
comments regarding Cornell the day before. Williams asked
for written confirmation and Chris Britt accommodated him.
Chris Britt proceeded to write a disciplinary notice confirming
Williams’ 3-day suspension based on “disruption of business”
and “lewd comments.” Williams, however, refused to sign the
form. Prior to that date, Williams had never been disciplined.45
6. The Respondent’s treatment of Plunkett
Prior to the representation election, the Respondent’s late at-
tendance policy allowed employees to report late to work and
make up the time by working later at the end of the day. Since
he was hired in 2001, Timothy Plunkett had been late on about
20 occasions, but would make up the time by working later, and
was never disciplined.
The Columbiana branch followed a practice of permitting
employees to make up for scheduled work hours missed by
allowing them to work additional hours on unscheduled time.
In that way, employees could earn a paycheck for an 8-hour
workday or a 40-hour workweek.46 Michael Britt reaffirmed
this policy in the East Liverpool store lunchroom in June during

advanced by Chris Britt and Cornell that the term amounted to sexual
harassment. (Tr. 697, 812.) The context clearly applied to Cornell
being a drain on the store’s payroll and not sexual innuendo.
44 Chris Britt and Williams provided fairly similar accounts of this
encounter. However, Chris Britt’s account of this incident provided
slightly more detail and I relied mostly on his version. I also find,
contrary to his testimony, that Williams knew beforehand that the union
organizers would be at that location. (Tr. 154–56, 809–812.)
45 The facts surrounding the suspension are not in dispute, but I find
that Chris Britt took Williams’ comments regarding Cornell out of
context and solely for the purpose of piling-on another charge. (Tr. 45,
157–160, 749–750, 812–814; GC Exh. 8.)
46 This finding is based on the credible testimony of Plunkett and
Douglas Baker. (Tr. 286, 400.)
a discussion with Timothy Plunkett, Charles Musgrove, and
Frank Morrell. He also told them that an employee would not
be disciplined for being late or absent if they notified the store
prior to the doors opening at 7 a.m.47
On July 13, Plunkett was running late for work, called the
East Liverpool store at 6:45 a.m., and left a voicemail message
for Jasenec that he would get to work a few minutes late.48
Plunkett arrived at the store and clocked in at 7:13 a.m. He
spoke with Jasenec at the counter and asked if he received the
message. Jasenec confirmed receipt of the message but said he
was considering disciplinary action and would check with
Paula Shell, Columbiana branch secretary and a sister of the
Britt brothers. An hour later, Jasenec called Plunkett to the
counter and handed him a disciplinary notice. Plunkett refused
to sign it and explained Michael Britt’s policy of allowing em-
ployees to call in anticipation of being late or absent prior to the
start of their shift. On July 22, Michael Britt had Jasenec revise
the disciplinary notice and they called Plunkett up to the
counter. Jasenec gave him the notice, told him that he revised
the wording, and directed Plunkett to sign the form. The action
listed on the form was a “verbal warning” and noted this was
Plunkett’s first warning. The notice described the violation as
follows:
Tim called in at 6:45 a.m. that he would be late. Tim came in
at 7:13 a.m. Tim was under the impression that he could call
before we open to let us know he would be late.49
Plunkett asked Michael Britt if he recalled the discussion
with him, Musgrove, and Morrell 2 weeks earlier regarding the
late or absence call-in policy. Britt did not recall such a con-
versation. Plunkett again refused to sign the form.50
The Respondent’s policy and procedure bulletin (the policy
manual), effective February 3, 2003, provides guidance relating
to attendance. Construing several provisions, it appears the
call-in procedure discussed by Michael Britt was consistent
with the Respondent’s overall policy:
3. Employees are expected to start work promptly at
their regularly scheduled start time and complete their full
shift. Non-exempt employees recording their hours of
work daily on a time card are responsible for the accuracy
and legibility of the time card. Employees must sign their
card to verify their attendance at work.
5. Unless pre-approved with management, the em-
ployee must notify their supervisor prior to the start of the
employee’s shift that they will be absent or late. This
must be done every day the employee is absent or late. An

47 This finding is based on Williams’ credible testimony. (Tr. 286–
288.) Michael Britt, on the other hand, merely alluded to Plunkett’s
several latenesses way back in 2001. Michael Britt alleged that
Plunkett was verbally warned at that time, but produced no documenta-
tion to substantiate such action. More importantly, Michael Britt did
not rebut Plunkett’s testimony regarding the June discussion about the
call-in policy with Plunkett, Musgrove, and Morrell. (Tr. 742–744.)
48 By stipulation during trial, pars. 20(g) and (h) of the complaint
were amended to refer to 2004 in lieu of 2003. (Tr. 345–346.)
49 GC Exh. 9.
50 Plunkett’s’ credible testimony concerning this issue was not re-
futed by either Britt or Jasenec. (Tr. 287–294, 345.)
UNITED RENTALS 965
employee’s failure to properly notify the supervisor of an
absence or tardiness may result in disciplinary action. Ex-
cessive absenteeism and tardiness may result in discipli-
nary action.
The policy manual also contains the following timekeeping
guidelines:
2. “Clocking-in” past shift time is considered “late.” Pay is
not docked, however, until the employee is six (6) minutes or
more late.51
The disciplinary action taken against Plunkett varied from
the Columbiana branch’s preapproved procedure regarding
calling-in late or absent. The Respondent’s personnel records
indicate that, prior to the March 26 election, it enforced its at-
tendance policy only once. On May 1, 2003, after counseling
him several times over several months, Chris Britt issued Ben-
jamin Crane a written final warning for unacceptable atten-
dance. Crane had been absent on five occasions since January
1, 2003. It was also noted that he left work early on one occa-
sion.52
The following day, July 23, Michael Britt informed Plunkett
during the middle of the workday that work was slow and di-
rected him to clock out early. Plunkett, who had never been
sent home early before, asked Michael Britt if he charged the
time to annual or sick leave. Michael Britt responded that it
was not permissible to make up the time. Plunkett clocked out
and lost 4-1/2 hours of pay that day. This incident happened
again during the morning of September 22, when Jasenec told
Plunkett that there was no work for him and to clock out.
Plunkett clocked out after working 3-1/2 hours. Plunkett was
surprised by this development, since he was told by Chris Britt
when hired in 2001 that, if he had no tractor-trailer truck deliv-
eries to do, he was to do deliveries in the smaller trucks.
Meanwhile, the drivers of those vehicles would be assigned
labor and equipment maintenance-related work in the shop.53
Notwithstanding Plunkett’s displeasure at being sent home
early on two occasions, the Respondent did follow a practice—
before and after the election—of sending employees home
early if there was no work for them to do. Cornell and a former
employee, Ron Harper, were two examples. Furthermore, em-
ployees were not permitted to make up the time or charge it to
accrued vacation or sick leave.54

51 R. Exh. 10, pp. 1–2.
52 The Respondent introduced evidence of others issued a discipli-
nary notice for lateness or absences. However, Crane’s disciplinary
action is the only example offered prior to the March 26 election. (GC
Exhs. 3–6.) Thus, the failure of the Respondent to offer similar notices
for lateness prior to the election leads me to conclude that no one, other
than Crane, received any written notices of discipline for lateness or
absences.
53 This finding is based on Williams’ credible and unrefuted testi-
mony. (Tr. 295–298.)
54 Chris Britt’s 2001 statement to Williams that he should do other
work to keep busy was not inconsistent with the unrefuted testimony of
Chris Britt, Michael Britt, and Cornell that the Respondent followed a
practice of sending employees home early without pay if work was
slow. It simply meant that the circumstances finally caught up to Wil-
liams on those two occasions. Surely, the practice of not allowing
7. The Respondent’s treatment of Douglas Baker
In July 2002, Chris Britt hired Douglas Baker as a laborer at
the Columbiana store. After Baker began working there, Chris
Britt and Millhorn became aware that he was a member of the
United States Army Reserves and a volunteer at a local fire
department. As an Army reservist, Baker served one weekend
per month. That resulted in Baker being absent from work on a
Saturday and, sometimes, the Friday before. In such instances,
he was permitted to make up lost time on Tuesday, which was
his regularly scheduled day off. As a volunteer firefighter,
there were occasions when a service call caused Baker to be
late for work. In such instances, he would call and inform the
Columbiana branch. Baker was never disciplined for being late
or absent in any of those instances.55
In his most recent evaluation, dated February 14, 2003, Chris
Britt gave Baker an overall rating of “good.” The individual
components ranged from “good” to “very good.” The depend-
ability component of the evaluation indicated “overall atten-
dance acceptable.” The initiative component, however, indi-
cated that Baker needed to improve on additional activities
“when work is not evident.” Baker’s evaluation resulted in a
pay raise and bonus in April 2003.56
After the March 26 election, however, Baker started having
time and attendance problems with Columbiana branch man-
agement. On April 7, he received a “first” written warning
from Millhorn for arriving 12 minutes late to work on April 1,
and 19 minutes late on April 7. He protested to Millhorn that
he had never before received a warning for lateness.
On April 17, Baker experienced car trouble, called the
Columbiana store, and left a voicemail message for Millhorn at
6:10 a.m. indicating he would not be at work that day. Baker
followed up by calling again at 7 a.m. and speaking with Jamie
Davidson. Davidson responded by telling Baker that his ab-
sence was going to create a predicament for the store because a
lot of deliveries were scheduled that day. At 7:49 a.m., Chris
Britt called Baker and asked why he was not at work. Baker
repeated his explanation and Chris Britt responded that this was
the busiest Saturday of the year. He added that Baker “walked
around yesterday pissed off as if somebody shot your dog.
[Y]ou know Dave Matts is not going to be there today.” Baker,
knowing Matts would be absent, explained that he was tired the
day before because he and Smith were the only employees
working during the store’s open house promotion. Chris Britt
asked if Baker had another way to get to work, but Baker ex-
plained that his wife was already at work. Chris Britt re-
sponded that Baker needed to find a way to get to work and
then told Baker, “if you don’t make it to work there won’t be
any, do you know what I mean?” Baker responded that he
would do his best to get to work. After the conversation ended,

employees in such instances to charge the remainder of the workday to
accrued leave seems unfair. However, an unfair practice alone does not
equal an unfair labor practice. (Tr. 690–691, 713, 744–746, 861–862.)
55 Baker did not testify whether he told Chris Britt about these activi-
ties at the time he was hired, but the Respondent did not rebut his tes-
timony that his outside service was accommodated after he began
working there. (Tr. 400–406.)
56 Baker’s actual job title was “yardsperson.” (GC Exh. 10.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD966
Baker took his children to a baby sitter and arrived at the
Columbiana store over 2 hours late.57 Baker was not disci-
plined on this occasion, but asked Roberts, the designated har-
assment coordinator, to whom he could direct his complaint
regarding Chris Britt’s treatment. Roberts told him that he
already spoken with Chris Britt about the problem and the latter
directed Baker to send his complaint to Stewart. That day or
shortly thereafter, Baker called and spoke with Stewart by tele-
phone. Stewart wanted to know why tensions were high at the
Columbiana branch and commented that the Respondent had
lost thousands of dollars because of the union activity. Baker,
sensing that Stewart was blaming him for the problems at the
branch, made some derogatory comments. The discussion
concluded with Stewart providing Baker with his fax number.
In a letter to Stewart, dated April 25, Baker recited the events
of April 17 in vivid detail. He concluded:
Mr. Stewart, I’m tired of being harassed, bullied and
blamed for the management’s flaws and problems I’m sure
it will continue, no matter what is asked of them. I used to
like going to work, but the stress throughout the day seems
not to be worth putting up with. I feel if both sides sit
down to discuss the situation we may be able to move
ahead and start rebuilding a better branch.
I am sorry if I sounded derogatory towards you on the
phone. But I do not feel that giving this type of statement
over the phone is inappropriate [sic]. I hope we can leave
the past behind us and move onto making money for the
company and ourselves.
Please send me a written response on how this will be
handled in 5 (five) working days. Thank you for your
time.58
On June 21, Baker reported to work more than 2 hours late
because he had to tend to his son’s swollen eye. He called in
prior to 7 a.m. and let the store know he would be late. On
June 23, there was a power outage and Baker was late again.
On that day, Millhorn issued him two pieces of paper. One
document was a “second” warning for the June 21 lateness; the
other was a “final” warning for the June 23 lateness.59 When
Baker asked Millhorn why he was only now receiving warnings
for lateness, Millhorn told Baker that the Respondent would
have to start going by the book because employees selected the
Union at the representation election and Baker was bringing it
upon himself.60

57 Baker and Chris Britt generally agree as to the events of April 17,
but disagree as to whether Chris Britt threatened to fire Baker. (Tr.
517, 798–799.) I find that he did.
58 It is not disputed that Stewart received the letter, which I allowed
in evidence only for the purpose of showing notice to Stewart of
Baker’s complaint. (Tr. 438–440, 516; GC Exh. 13.) It is not clear,
however, when Stewart received it. The document was faxed on June
30 to the Board’s Regional Office in Cleveland. (Tr. 441.)
59 Baker testified that Chris Britt knew about his additional duties as
a military reservist and would permit Baker to make up time for lost
work. (Tr. 400–402.) However, Baker’s reservist duties had nothing to
do with these latenesses. (GC Exh. 12–14; Tr. 424–428, 442–443,
507–517, 523–525.)
60 Baker could not recall Millhorn’s exact words, but it is clear that
Millhorn’s actions were attributable to the union factor. I do not find,
On June 28, 2004, there was union picketing outside the
Columbiana store. Baker was returning slips to the front
counter of the store when Roberts told him that it was Baker’s
pay raise that was paying for the picketers to sit in front of the
store, while Baker worked. Baker responded that he just
wanted to do his work, but Roberts continued making similar
comments for 10–15 more minutes.61
On July 8, Baker was approached in the Columbiana store by
Michael Albers, the Respondent’s regional human resources
manager. Albers asked Baker if they could speak for a few
minutes in Chris Britt’s office and Baker agreed. They dis-
cussed the recording that Baker made of his February 16 con-
versation with Millhorn and branch management’s attitude
toward Baker. Albers advised Baker not to be a “martyr,”
stated Chris Britt was looking to fire him, and not to give him a
reason to do so.62
On July 23, while working in the Columbiana store, Baker
heard that Plunkett was being sent home early. Wondering why
that was happening, since it was a “very busy day” at the store,
Baker asked Roberts why Plunkett was being sent home early.
Roberts asked Baker why he wanted to know and Baker re-
sponded that it was a busy day. At the time, Baker and Bill
Smith were the only employees in the store taking care of cus-
tomers. Baker also asked why Plunkett would be sent home
early if the Respondent had a policy of sending employees to
the other store if it was busier. Roberts responded that it was
none of Baker’s business. Roberts also told Baker that “since
the Union came in, that we’ve costed so many thousands of
dollars to the Company because we was, we was being tied up
with senior management coming in and talking and not doing
actual work procedures, and all because of the Union that was
coming in.” Baker then asked to see the Respondent’s policy
and procedures manual. Roberts complied.63

however, that Blackadar rejected Baker’s plea for help on June 23
because the Union was involved. There was no testimony to support
this allegation in par. 14 of the complaint. (Tr. 442–444.)
61 This finding is based on Baker’s credible testimony. (Tr. 445–
446, 451–453.) Notably, Roberts was not called to refute the allega-
tions, even though the Respondent had ample opportunity to do so after
the trial was continued to August 30, 2005.
62 Albers testified that he went to the Columbiana branch that day to
investigate Plunkett’s sexual harassment claim and subsequently con-
cluded that there was inappropriate behavior by branch employees and
Plunkett. In the course of his investigation, he interviewed Baker, but
denied discussing Chris Britt, mentioning that he was looking for a
reason to fire Baker, or advising Baker not to be a martyr. (Tr. 653–
657.) I did not find Albers’ testimony credible on this point. He pro-
vided terse denials with no details of the conversation. Accordingly, I
relied on Baker’s credible and detailed version of the conversation.
Nevertheless, it was not clear from Baker’s testimony whether Albers
brought up the recording. No one probed him on that aspect of the
meeting. (Tr. 452–454.)
63 Again, this finding is based on Baker’s credible and unrefuted tes-
timony, as Roberts did not testify. However, I did not credit Baker’s
assertion that this was the first time he saw the policy and procedures
manual. (Tr. 454–457.) He acknowledged receipt of the manual when
he started working at the branch on July 12, 2002. (R. Exh. 3.) In
addition, Baker’s testimony indicated that Roberts would periodically
provide updates to employees. (Tr. 456.)
UNITED RENTALS 967
On July 24, a Saturday, Baker overslept and reported to work
about 2 hours late. He worked an hour past his shift that day.
Shortly after arriving at work on July 26, he was called into
Chris Britt’s office. Chris Britt then handed Baker a “third”
warning, resulting in employment termination. There was no
discussion as to why Baker was late on July 24. However,
Baker asked to see the written policies that Chris Britt was
basing his action on before signing the form. Chris Britt re-
fused and told Baker to leave the facility.64
The Respondent’s policy and procedure bulletin provides
several examples of “causes for disciplinary action” up to and
including discharge for repeated occurrences:
1. Unexcused absence, absence from work without notifying
the Company before a scheduled shift, failure to return to
work promptly upon expiration of a leave of absence where
circumstances are not protected by State and Federal Regula-
tions or excessive absence or tardiness. Failure to follow es-
tablished time card and attendance procedures.
Discussion
A. Section 8(a)(1)
1. The Respondent’s preelection statements
The complaint alleges that Chris Britt, Millhorn, Blackadar,
Stewart, Bellinger, and Albers violated Section 8(a)(1) through
unlawful interrogation, threats, grievance solicitation, promises
of wage increases, and remarks that union representation would
be futile.65 The Respondent stipulated that all are Section 2(11)
supervisors, but denies they threatened, solicited grievances, or
made promises to employees and asserts they simply expressed
their lawful views about the Union.
Section 7 of the Act provides, in pertinent part, that
“[e]mployees shall have the right to self-organization, to form,
join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also have the
right to refrain from any or all such activities.” An employer
who interferes with, restrains, or coerces employees in the ex-
ercise of such rights violates Section 8(a)(1). The test does not
turn on the employer’s motive or whether the coercion suc-
ceeded or failed but, rather, whether the employer engaged in
conduct, which it may be reasonably said, tends to interfere
with the free exercise of employee rights under the Act. NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969); Almet, Inc., 305
NLRB 626 (1991); American Freightways Co., 124 NLRB 146,
147 (1959).
On February 13, Chris Britt told Williams that he had a list
of employees, including Williams, who signed authorization
cards and said those employees “sealed their fate.” He also
suspected Williams and Bill Smith were leading the organizing
effort, would be fired within a few months, opined that a union
was not necessary, suggested the organizing effort would cause
Brian Brooks to lose his job and health coverage for his ill
daughter, would result in no annual evaluations and pay raises,

64 GC Exh. 17; Tr. 457–462, 526–529.
65 Complaint, pars. 6–11, 13–15.
and would cause the Respondent to close one or both of the
Columbiana branch stores. In his meeting with Brooks, Chris
Britt expressed his objection to the Union and asked why
Brooks signed an authorization card, as well as concerns about
working at the store. After telling Brooks that annual evalua-
tions would be done as a result of the organizing campaign,
Chris Britt stated that he was looking out for Brooks and his
daughter. In his meeting with Plunkett, Chris Britt alluded to
the latter’s hospitalized daughter and assured Plunkett, notwith-
standing the organizing campaign, not to worry about discipli-
nary action if he needed time off to care for her. Chris Britt
then told Plunkett that the organizational campaign would
cause employees to lose a pay raise.
Under the circumstances, Chris Britt’s statements constituted
several violations of Section 8(a)(1). His questions as to those
employees who signed authorization cards and employees who
were leading the organizational effort constituted coercive in-
terrogation. Bristol Nursing Home, 338 NLRB 737, 738–739
(2002); Shamrock Foods Co., 337 NLRB 915, 918 (2002). His
threats that employees would be discharged, jobs and medical
benefits lost, and pay raises suspended, constituted unlawful
threats. NLRB v. Exchange Parts Co., 375 U.S. 405 (1964);
Fiesta Hotel Corp., 344 NLRB 1363, 1386 (2005). Finally, he
unlawfully solicited grievances during the organizational cam-
paign by impliedly promising to remedy them if employees
discontinued union activity. Jewish Home for the Elderly of
Fairfield County, 343 NLRB 1069, 1090–1091 (2004); Orbit
Lightspeed Courier Systems, 323 NLRB 380 (1997); Reno Hil-
ton, 319 NLRB 1154, 1156 (1995); Reliance Electric, 191
NLRB 44, 46 (1971).
On February 16, Millhorn asked Baker why he supported the
Union and warned that, if the Union prevailed, the Columbiana
branch would be a miserable place to work and result in lost
promotional opportunities, medical benefits, free use of com-
pany equipment, layoffs, and employees being sent home early
during slow periods. Under the circumstances, Millhorn’s
threats of loss of benefits and adverse action amounted to coer-
cive interrogation in violation of Section 8(a)(1). Hoffman Fuel
Co., 309 NLRB 327 (1992); Belle Knitting Mills, 331 NLRB 80
(2000); Harper-Collins San Francisco, 317 NLRB 168 (1995).
On March 15, Blackadar told Williams that he and the Re-
spondent did not like unions and preferred to work out prob-
lems internally. He asked Williams about any problems he had
at work. After Williams expressed concerns regarding the Britt
family members’ free use of company equipment and supplies,
Blackadar gave Williams his telephone number and stated that,
if the Union lost the election, he would return in April to ad-
dress employees’ concerns. Blackadar also stated that, if the
Union won, he would not return due to collective bargaining.
In his conversation with Brooks, Blackadar said that, if given
the chance, he would like to take care of employees’ pay issues.
He also asked Brooks if he had any other issues, handed him
his card, and invited Brooks to call or e-mail with any problems
or questions. In his conversation with Plunkett, Blackadar
asked about his reasons for supporting the Union and any con-
cerns he had. Plunkett complained about his salary and Chris
Britt. Blackadar acknowledged that the pay scale there was low
and would try to correct that problem. Under the circum-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD968
stances, Blackadar violated Section 8(a)(1) by soliciting griev-
ances and promising to remedy them in order to dampen em-
ployee support for the Union. Hialeah Hospital, 343 NLRB
391, 392 (2004); Reliance Electric Co., 191 NLRB 44, 46
(1971).
On March 15, Stewart asked Baker why he supported the
Union and whether he had any prior union activity. Stewart
also told Baker that he could not discuss pay increases because
it could be considered a bribe. Later that day, Stewart repeated
his statement regarding the inability to discuss raises to a group
that included Williams, Smith, Brooks, Six, and Baker. Stewart
did concede, however, that employees were scheduled to get
them on April 1, and he would be increasing the level of pay at
the Columbiana branch. Under the circumstances, Stewart’s
remark that he would be increasing the level of pay at the
Columbiana branch amounted to an unlawful promise to rem-
edy a grievance during the heat of an organizational campaign.
NLRB v. Exchange Parts Co., 375 U.S. 405 (1964).
On March 31, Bellinger, an auditor, interviewed branch em-
ployees about alleged policy and legal violations, unethical
behavior, and any other operational problems. Upon learning
about the recent union election, however, he asked several re-
lated questions relating to the vote. Bellinger asked Williams,
“where [sic] you an eight or a seven.” After Williams re-
sponded that he “was an eight,” Bellinger assured him that
everything they discussed would be kept confidential, but for-
warded to Blackadar. Bellinger also spoke with Baker, who
told him about the recording he had of a conversation with
Millhorn. Bellinger told Baker that Blackadar would be inter-
ested in the tape and Blackadar called Baker that evening re-
questing a copy of the tape. Bellinger’s discussion with Baker
regarding the tape reasonably related to Bellinger’s audit of
wrongdoing at the branch. His inquiry, however, as to how
employees voted in the March 26 election had nothing to do
with his audit and, from an objective standpoint, tended to in-
terfere with employees’ Section 7 rights. Rossmore House, 269
NLRB 1176, 1177 (1984). Furthermore, the fact that the inter-
rogation took place during a calm setting does not affect the
result. Laredo Coca Cola Bottling Co., 241 NLRB 167, 172
(1979). Under the circumstances, Bellinger’s questions regard-
ing employees’ actions during the March 26 election violated
Section 8(a)(1).
On July 8, Albers, a regional human resources manager in-
vestigating a sexual harassment complaint, deviated into a dis-
cussion with Baker about his February 16 conversation with
Millhorn and branch management’s attitude toward Baker. As
previously discussed, Millhorn’s statements on February 16
consisted of a litany of threats in violation of Section 8(a)(1).
Albers responded by warning Baker that Chris Britt was look-
ing to fire him and advising Baker to avoid giving him a reason
to do so. Under the circumstances, Albers’ statement consti-
tuted an unlawful threat that the Respondent would retaliate
against Baker if he continued to complain about the 8(a)(1)
violations by Millhorn on February 16. Hialeah Hospital, su-
pra at 393.
2. Suspension of past employment practices
(a) Performance evaluations and pay raises
The complaint alleges that, since March 2004, the Respon-
dent has refused to give employees their annual evaluation and
pay raises in order to discourage union support.66 The Respon-
dent contends that: (1) any discussion regarding evaluations
and raises would have given the appearance of trying to influ-
ence the March 26 election; (2) the Respondent’s pay raises are
based solely on performance evaluations and are discretionary;
(3) the Columbiana branch did not have an annual practice of
issuing evaluations and pay raises because its practice had only
been in place for 3 years; and (4) the Columbiana branch law-
fully postponed the pay increases.67
The Respondent suspended the performance evaluation
process, as well as the pay raises that were dependent on that
process, due to the March 26 election. This was an annual
practice that the Respondent followed for the 3 years after ac-
quiring the Columbiana branch. The notion that such pay raises
were discretionary is a hollow one, since the Respondent’s
custom and practice was to award raises to employees with
good or satisfactory performance evaluations. Finally, the Re-
spondent did not lawfully postpone pay raises. Stewart’s al-
leged concern that one-on-one meetings with employees would
have implications on evaluations and be construed as bribery
was unfounded, given the solicitation of grievances committed
by Stewart, Chris Britt, Blackadar, and Millhorn during the
campaign. At the very least, the Respondent’s agents did not
communicate unequivocally that employees would receive their
pay raises. Promedica Health Systems, 343 NLRB 1351, 1372
(2004); cf. Atlantic Forest Products, 282 NLRB 855, 858
(1987). Under the circumstances, the suspension of perform-
ance evaluations in March and pay raises in April because of
the March 26 election violated Section 8(a)(3) and (1). Holland
American Wafer Co., 260 NLRB 267 (1982); GAF Corp., 196
NLRB 538 (1972).
(b) Free equipment rentals
The complaint alleges that, since April 1, the Respondent has
“selectively enforced its rental equipment policy against em-
ployees including but not limited to Robert Williams and Doug-
las Baker, by not allowing such employees the free use of rental
equipment in retaliation for their support and activities on be-
half of the Union.”68 The Respondent concedes that Chris Britt
had a longstanding practice of permitting employees to use
company equipment for no charge. However, it contends that
Chris Britt suspended the practice after receiving notification in
January of the Respondent’s nationwide initiative to enforce its
prohibition against no-charge contracts and Stewart’s threat to
discipline him in February.69
The Respondent had a written companywide policy permit-
ting its employees to rent its equipment at a discount. An em-
ployer has a right to enforce rules and regulations, provided
they are not enforced in disparate fashion. Allied Mechanical

66 Complaint, par. 12.
67 R. Br. at 35–44.
68 Complaint, par. 16.
69 R. Br. at 60–62.
UNITED RENTALS 969
Services, 341 NLRB 1084 (2004). In this instance, however,
the Columbiana branch followed a practice, prior to the March
26 election, of permitting employees to rent equipment for free.
It changed that practice after the Respondent lost the election. I
did not credit the notion that it was pure coincidence that Stew-
art was cracking down on Chris Britt’s branch policy at the
very time that Chris Britt and Millhorn threatened employees
with the loss of this benefit. Chris Britt was not issued a disci-
plinary notice until months later and it appears that the Respon-
dent’s crackdown on Chris Britt was actually meant to provide
him with legal cover for his actions. Under the circumstances,
the Columbiana branch violated Section 8(a)(3) and (1) by
modifying its employee equipment rental policy in retaliation
for losing the March 26 election. Mid-South Bottling Co., 287
NLRB 1333, 1342 (1988).
(c) Uniform policy
The complaint alleges that, since April 1, 2004, the Respon-
dent “selectively enforced its uniform policy against employ-
ees, including but not limited to Tim Plunkett, Douglas Baker
and Robert Williams in retaliation for their support and activi-
ties on behalf of the Union.”70 The Respondent contends that it
had a written uniform policy, which Stewart would enforce
during visits to branches in his district.71
Prior to the election, the Respondent permitted employees to
wear jeans and/or company sweatshirts to work. On or about
April 1, however, Chris Britt told Williams he could no longer
wear jeans, while Michael Britt directed Plunkett to change
from a company sweatshirt to a company shirt. These actions
on the part of Chris and Michael Britt were yet another message
by the Respondent that a vote in favor of the Union would re-
sult in detrimental workplace changes. Under the circum-
stances, the Columbiana branch’s modification of its uniform
policy with respect to Williams and Plunkett violated Section
8(a)(3) and (1). See Bristol Nursing Home, supra at 738–739.
(d) Call-in policy
The complaint alleges that, since on or about June 21, the
Respondent “selectively enforced its call-in policy against em-
ployees including but not limited to Douglas Baker and Tim
Plunkett in retaliation for their support and activities on behalf
of the Union.”72 The Respondent contends that they were
merely enforcing a written policy requiring employees to start
work promptly at their scheduled time. It also notes that the
policy requiring employees to notify supervisors prior to the
start of the scheduled shift if they would be absent or late did
not insulate an employee from discipline.73
The Respondent did, in fact, have a policy of permitting em-
ployees to call-in before a scheduled shift to advise they would
be late. After the election, in at least two instances, the Re-
spondent modified its practice. On June 23, the Respondent
disciplined Baker for arriving late to work on June 21, even
though he called in late before the beginning of his shift. He
provided a reasonable excuse, which the Respondent did not

70 Complaint, par. 17.
71 R. Br. at 62.
72 Complaint, par. 18.
73 R. Br. at 62–63.
contest. When he inquired as to why the Respondent changed
the branch practice on calling-in late, Millhorn told him he
brought it on himself by helping the Union win the March 26
election. On July 13, the Respondent disciplined Plunkett for
arriving late, even though he too called in beforehand. The
written disciplinary notice that followed, as well as Michael
Britt’s response to Plunkett’s protest to the discipline, ignored
Michael Britt’s confirmation of the call-in policy a few weeks
earlier. In both instances, the Respondent’s action not only
changed branch practice, it contravened the Respondent’s pol-
icy manual provision permitting employees, based on pre-
approved branch policy, to call-in before the start of a sched-
uled shift. Under the circumstances, the change in the call-in
procedure was motivated by union animus and violated Section
8(a)(3) and (1) of the Act. Master Slack, 230 NLRB 1054,
1055 (1977).
B. Section 8(a)(3) and (1)
The General Counsel alleges that the Respondent, on numer-
ous occasions in 2004, “selectively enforced its disciplinary and
other policies” against Baker, Williams, and Plunkett “in re-
taliation for their support and activities on behalf of the Un-
ion.”74 The Respondent denies the allegations and contends
that the discipline was warranted.
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Gen-
eral Counsel must prove, by a preponderance of the evidence,
that an employee engaged in concerted protected activity, the
employer had knowledge of the employee’s protected activities,
the employer took adverse action against the employee, and the
action was motivated by discriminatory motivation. Proof of
discriminatory motivation may be based on either direct or
circumstantial evidence. Robert Orr/Sysco Food Services,
LLC, 343 NLRB 1183 (2004). If the General Counsel estab-
lishes a prima facie case by meeting these elements, the burden
shifts to the Respondent to prove, also by a preponderance of
the evidence, that it would have taken such action even in the
absence of the protected conduct. Simply presenting a legiti-
mate reason for its actions is not enough. Donaldson Bros.
Ready Mix, Inc., 341 NLRB 958, 966 (2004); T. J. Trucking
Co., 316 NLRB 771, 771 (1995); GSX Corp. v. NLRB, 918 F.2d
1351 (8th Cir. 1990).
The first three factors of a Wright Line analysis are easily
met. Beasley’s February 11 letter to Chris Britt informed the
Respondent that 10 of its employees, including Williams,
Plunkett, and Baker, were assisting the Union in its organiza-
tional campaign. He attached copies of their signed authoriza-
tion cards and further explained they would continue to be in-
volved in protected concerted activity. The Respondent took
adverse action against all three. Williams was issued discipli-
nary notices for a safety violation and lateness, transferred to
another store and assigned laborer duties, and suspended for 3
days for insubordinate conduct. Plunkett was issued a discipli-
nary notice for unacceptable attendance and sent home early on
two occasions without pay for the lost hours. Baker was issued
three disciplinary notices and discharged for lateness. How-

74 Amended consolidated complaint, pars. 20(a)–(m).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD970
ever, the parties dispute whether such disciplinary action was
motivated by union animus on the part of the Respondent.
The antiunion statements made by Chris Britt, Millhorn, and
Roberts during and after the March 26 election provide strong
evidence of the Respondent’s motivation to stifle organizational
activity: Chris Britt interrogated employees as to why they
signed authorization cards and told them that the union cam-
paign would result in the suspension of annual performance
evaluations and pay raises; Millhorn told employees that, if the
Union came in, the Columbiana branch would become a miser-
able place to work; promotional opportunities, medical benefits,
and free equipment rentals would be lost; and employees would
be sent home early or laid off. Millhorn also told Baker, while
issuing him a disciplinary notice, that the Respondent would
enforce the rules in a stricter manner because of the Union; and
Roberts told Baker that his salary was paying for union picket-
ers outside the store and that the Union had cost the Respondent
thousands of dollars. Against this backdrop, it is clear that the
adverse action taken against Williams, Plunkett, and Baker was
motivated by union animus.
The disciplinary notice issued to Williams for the safety vio-
lation and the suspension for insubordination were not, how-
ever, connected to protected concerted activity. The safety
issue resulted in the removal of the notice from his personnel
file, although it remained in a safety file; the Respondent’s
safety procedures appeared to be more stringent than the appli-
cable state code, a laudable notion, and Williams agreed that he
needed additional training in securing equipment. Furthermore,
the credible evidence indicated that Williams, regardless of
whether his “plumbing” problems were intestinal or mechanical
in nature, went to the Columbiana store shortly after leaving the
East Liverpool store for the purpose of confronting Chris Britt
and joining union picketers outside the store. On the other
hand, the disciplinary notice issued to Williams for calling-off
from work and his transfer to the East Liverpool store in order
to perform mostly lower-level work are clearly connected to his
protected concerted activity. There was no evidence that the
Respondent had a policy of disciplining employees for calling-
off from work and Williams’ transfer resulted in his perform-
ance of primarily lower-level work after Chris Britt assured him
he would continue to work primarily as a truckdriver. Under
the circumstances, the Respondent’s issuance of a disciplinary
notice to Williams on July 21 for unacceptable attendance, and
his transfer to the East Liverpool store and assignment of
lower-level duties there, violated Section 8(a)(3) and (1) of the
Act.
The fact that Plunkett was sent home early without pay on
two occasions—July 23 and September 22—was not related to
his concerted activity. First, those were the only two instances
in which he was sent home early in the 6-month period since
the March 26 election. Second, the Respondent had a policy of
sending employees home early without pay. The disciplinary
notice for lateness, however, is a different story. Prior to the
March 26 election, the Respondent enforced its time and atten-
dance policy only once and, in that case, the employee was
absent on five occasions over a 4-month period in 2003.
Plunkett, on the other hand, had been late on numerous occa-
sions since he was hired in 2001. He generally called in be-
forehand, was permitted to make up the time by working later,
and was never disciplined. The disciplinary notice issued
Plunkett on July 13 for being 13 minutes late, even though he
called in earlier that morning, was a change in practice and
clearly retaliatory in nature. Under the circumstances, the Re-
spondent’s action violated Section 8(a)(3) and (1) of the Act.
Baker, rated by the Respondent in 2003 as a “good” em-
ployee, was issued three disciplinary notices after the election
and discharged for lateness. As with Plunkett, prior to the
March 26 election, Baker would call in late to work on numer-
ous occasions. He was also absent on several occasions. In
either instance, his absence or lateness was due to service with
the volunteer fire department or Army Reserves. Baker was
never disciplined and was permitted to make up lost time on his
regularly scheduled day off. Shortly after the election, how-
ever, the Respondent’s approach changed. On April 7, Baker
was issued a disciplinary notice for being late that day (19 min-
utes) and on April 1 (12 minutes). On June 21, he was 2 hours
late because his son was ill, but called in prior to 7 a.m. to let
the branch know he would be late. On June 23, Baker was late
because of a power outage. On that day, Millhorn handed
Baker a “second warning” for the June 21 lateness and a “final”
warning for the June 23 lateness. Millhorn also told Baker that
he brought it on himself through his involvement in the March
26 election. On July 24, Baker overslept and was 2 hours late.
On July 26, Chris Britt handed Baker a “third” warning for
being late on July 24 and discharged him.
Baker’s case was a close one, since I was not overly im-
pressed with his excuses for being late and they had nothing to
do with his service in the Army Reserves or the volunteer fire
department. On the other hand, the Respondent seemed to
pounce on every opportunity to discipline Baker for lateness
after March 26. Without first verbally counseling him, the
Respondent issued Baker disciplinary notices on April 7 for
being 12 minutes late on April 1, and 19 minutes late on April
7. The Respondent then disciplined Baker on June 23 for being
late on June 21 and June 23. However, the June 21 lateness
was not justified because Baker called-in before the start of his
shift that he would be late—a practice that the Respondent
permitted prior to March 26. This dubious disciplinary history
set the stage for Chris Britt to purge Baker on July 26 after he
arrived at work 2 hours late in July 24. Moreover, these events
transpired in an environment of hostility toward Baker, as evi-
denced by Millhorn’s statements on June 23 and Albers’ re-
mark on July 8 that Chris Britt was looking to fire Baker. Un-
der the circumstances, the Respondent’s issuance of discipli-
nary notices on April 7, June 23, and July 26, were retaliatory
in nature and violated Section 8(a)(3) and (1) of the Act.
Finally, the Respondent’s contention that Baker’s February
16 tape recording of his conversation with Millhorn provided
an “independent, after-acquired reason to terminate Baker’s
employment which cuts off back pay as of January 31, 2005
and precludes the remedy of reinstatement.”75 That argument
also fails. Contrary to the Respondent’s representation that it
only learned of the tape recording “immediately prior to the
hearing,” the record established otherwise: Bellinger learned of

75 R. Br. at 58–59.
UNITED RENTALS 971
the tape during his interview of Baker, passed on that informa-
tion to Blackadar, and Blackadar contacted Baker and spoke
with him about the tape. Albers again mentioned the tape dur-
ing his discussion with Baker on July 8 advising the latter not
to be a martyr by pushing his concerted protected activity.
Where, as here, an employee is unlawfully discharged, rein-
statement and backpay are appropriate remedies unless the
employer can show subsequent acts (or discovery of the same)
which would have resulted in a lawful discharge. As noted by
the Board in Opryland Hotel, 323 NLRB 723, 728 (1997), such
disqualifying acts can include the use or possession of a tape
recorder at work if the employer has a rule prohibiting such
conduct. The facts here, however, reveal that the employer was
made aware of the tape recording during Bellinger’s audit in-
vestigation of the Columbiana branch and did not take discipli-
nary action. Furthermore, Baker revealed the tape recording to
Bellinger, a company auditor, during a confidential investiga-
tion into alleged misconduct at the Columbiana branch. Under
the circumstances, the Respondent’s failure to discipline Baker
after the revelation of the tape recording during a confidential
audit investigation establishes that it did not consider Baker’s
violation of the company rule to be a material violation that
would have resulted in lawful discharge.
C. Section 8(a)(5) and (1)
The complaint in the bargaining case alleges the Respondent,
since the March 26 election, violated Section 8(a)(5) and (1) of
the Act by making the following unilateral changes without
giving the Union notice and opportunity to bargain: (1) refusing
to give employees annual performance evaluations and pay
raises; (2) changing its policy permitting employees the free use
of equipment; (3) changing its uniform policy; (4) and changing
its call-in policy.76 The Respondent denies enacting new poli-
cies after the election and contends that such charges cannot be
reconciled with the General Counsel’s 8(a)(3) theories that
those policies already existed and the Respondent selectively
enforced them. Furthermore, the Respondent asserts prejudice
and waiver because the General Counsel failed to integrate the
8(a)(5) charges into this litigation until after the filing of briefs
in the initial case.
Section 8(a)(5) obligates an employer to bargain with its em-
ployees’ representative in good faith regarding “wages, hours
and other terms and conditions of employment.” NLRB v.
Borg-Warner Corp., 356 U.S. 342 (1958); Fiberboard Corp. v.
NLRB, 379 U.S. 203 (1964). As such, an employer must notify
and consult with its employees’ chosen union before imposing
changes in wages, hours, and conditions of employment. NLRB
v. Katz, 369 U.S. 736 (1962); NLRB v. Pinkston-Hollar Con-
struction Services, 954 F.2d 306 (5th Cir. 1992). The duty to
bargain arises on the date a majority of the appropriate bargain-
ing unit employees select the union as their representative.
Gulf States Mfrs., Inc., 261 NLRB 852, 863 (1982); Howard
Plating Industries, 230 NLRB 178, 179 (1977).
After the Union won the March 26 election, Beasley re-
quested to bargain in the May 7 letter to the Respondent. The
Respondent concedes it did not respond to the letter and, in-

76 Complaint (bargaining case), par. 7.
stead, chose to rely on its objections to the election. While the
objections were pending before the Board, the Respondent
changed several conditions and terms of employment of the
putative bargaining unit members. As fully discussed above,
those changes consisted of the suspension of annual perform-
ance evaluations and pay raises, the requirement that employees
pay for the use of company equipment, the prohibition against
wearing jeans and sweatshirts at work, and the discipline of
employees for lateness even if they called in before their shift
to advise supervisors. Those changes continue to this date.
After the Board overruled the objections and certified union
representation on April 5, 2005, the Union once again at-
tempted to bargain. On April 20, 2005, Pero requested that the
Respondent bargain and, in that regard, provide certain infor-
mation relative to the bargaining process; the letter did not
include a request to bargain over the aforementioned changes in
the terms and conditions of employment. At some point prior
to June 8, 2005—and approximately 1 year after Beasley’s
initial request to bargain, Meany responded to Pero’s request
for information.
It is of no consequence that the Respondent eventually re-
sponded or is presently in negotiations with the Union. True,
the Respondent was entitled to file objections to the March 26
election. In making changes to employees’ conditions of em-
ployment prior to Board certification, however, it acted at its
peril, unless it could show compelling economic considerations
for taking such action. Mike O’Connor Chevrolet-Buick-GMC,
209 NLRB 701, 703 (1974). The Respondent’s actions, how-
ever, were motivated by considerations other than compelling
economic considerations: performance evaluations and pay
raises were suspended due to a false fear of being accused of
bribery during the organizing campaign; the vague nationwide
company dress code was allegedly enforced because Stewart
directed it; and the calling-in late procedure was disavowed by
branch supervisors in instances where employees reported to
work a few minutes late. It is true that the free use of company
equipment by employees—when the equipment was not other-
wise being rented by customers—was the subject of an alleged
companywide edict to enforce the national (not branch) policy
to increase revenue. There was no showing, however, that the
Respondent’s financial condition was significantly affected by
the foregone income from the free use of equipment by em-
ployees at errant branches.
The Respondent’s contention that the General Counsel may
not simultaneously pursue 8(a)(3) and (5) charges is not sup-
ported by current Board law. In Southside Hospital, 344 NLRB
634, 634–635 (2005), the judge found, and the Board upheld,
such a scenario. In that case, the employer was found to have
violated Section 8(a)(5) by unilaterally changing the terms and
conditions of employment of “nutrition supervisors” without
affording their union notice and an opportunity to bargain. The
employer was also found to have violated Section 8(a)(3) be-
cause its motivation for changing those conditions was attribut-
able to the nutrition supervisors joining and supporting the
union.
The Respondent’s additional contentions of waiver and
prejudice are also unfounded. First, the Respondent contends
that the Union waived the 8(a)(5) charges when Pero failed to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD972
include them in his April 20, 2005 letter requesting bargaining.
Once an employer gives notice of its decision and affords a
reasonable opportunity for bargaining, the union has an obliga-
tion to take advantage of the opportunity by requesting bargain-
ing. See Lenz & Riecker, 340 NLRB 143, 146 (2003). The
decision relied on by the General Counsel, Ciba-Geigy Phar-
maceuticals Division, 264 NLRB 1013, 1017 (1982), is particu-
larly on point. It explained that a union must timely request
bargaining over a changed condition of employment, but does
not waive a change if the employer has no intention of bargain-
ing. The Respondent’s failure to ever reply to Beasley’s May 7
letter demonstrated that it would have been meaningless to
request bargaining over the changed practices.
Each of the cases cited by the Respondent in support of
waiver, on the other hand, involves a fact pattern in which an
employer actually recognized its employees’ designated union
representative, gave the union notice of its decision to change a
term of employment, afforded the union a reasonable opportu-
nity to bargain, and the union failed to avail itself of such op-
portunity. See Associated Milk Producers, 300 NLRB 561
(1990); Citizens Bank of Willmar, 245 NLRB 389 (1979);
Clarkswood Corp., 233 NLRB 1172 (1977); Medicenter, Mid-
South Hosp., 221 NLRB 670 (1975); Coppus Engineering
Corp., 195 NLRB 595 (1972); Triplex Oil Refinery, 194 NLRB
500 (1971); NLRB v. Alva Allen Industries, 369 F.2d 310, 321
(8th Cir. 1966). In this instance, however, the Respondent
failed to respond to Beasley’s May 7 general request to bargain,
much less notify him of the changed employment conditions.
The first indication that the Respondent even recognized the
Union was when Meany provided Pero—sometime between
May 20 and June 8, 2005—the information sought in Pero’s
letter. There was no proof, however, that Meany, even at that
late point, notified Pero about the changed employment condi-
tions at the Columbiana branch.
Second, the Respondent alleges prejudice due to the General
Counsel’s delay in seeking to consolidate the bargaining com-
plaint with the initial complaint until after the hearing closed in
March 15, 2005. As noted by the General Counsel, however,
the filing of a complaint by the General Counsel prior to the
Board’s Decision and Certification of Representative on April
5, 2005, would have been premature.77 Under the circum-
stances, the Respondent’s failure to respond to Beasley’s May 7
request to bargain, followed by its actions in changing certain
terms and conditions of employment, constituted 8(a)(5) and
(1) violations.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(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 interrogating employees regarding their support for
the Union, threatening employees with discharge, loss of jobs,

77 GC Supp. Br. at 9–10; R. Supp. Br. at 10–14.
promotional opportunities, free use of company equipment and
medical benefits, suspension of performance evaluations and
pay raises, soliciting grievances and promising to remedy them,
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
4. By suspending annual performance evaluations and pay
raises, eliminating its free employee equipment rental policy
and call-in policy, all because the Union won the election, the
Respondent has engaged in unfair labor practices in violation of
Section 8(a)(3) and (1).
5. By disciplining Plunkett, Williams, and Baker because
they actively supported the Union, the Respondent violated
Section 8(a)(3) and (1).
6. By making the following unilateral changes without giv-
ing the Union an opportunity to bargain—the failure to conduct
annual performance evaluations, the requirement employees
pay for the rental, the requirement employees wear company-
issued uniforms, and abrogation of the branch’s practice per-
mitting employees to call-in before their regularly scheduled
shift to say they would be late—the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act.
7. The Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, disciplined two others and retaliated against its employ-
ees for supporting the Union by suspending or modifying cer-
tain terms and conditions of employment, it must make all af-
fected employees whole. The Respondent shall offer rein-
statement to Douglas Baker and making him whole from the
date of discharge, July 26, 2004, to the date of a proper offer of
reinstatement. It shall also make whole Plunkett and Williams
for any leave time or absences unlawfully charged them. With
respect to all employees, the Respondent shall conduct per-
formance evaluations retroactive to March 1, 2004, and award
commensurate pay increases retroactive to April 1, 2004. Any
loss of earnings, including pay increases, shall be computed for
the applicable period on a quarterly basis in accordance with
the formula prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
The Respondent shall also be ordered to cease interrogating
or threatening employees with adverse action because of their
support for the Union, reinstate certain policies and practices
that it suspended or modified in retaliation for employees’ sup-
port of the Union, and refrain from making any changes to
employees’ terms and conditions of employment without giving
the Union an opportunity to bargain.
[Recommended Order omitted from publication.]