United Rentals, Inc., (2007)

Extract

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United Rentals, Inc., (2007)

United Rentals, Inc. and International Union of Operating Engineers, Local 12, AFL–CIO. Cases 21–CA–36319 and 21–CA–36370

January 31, 2007

DECISION AND ORDER

By Chairman Battista and Members Liebman and Schaumber

On April 29, 2005, Administrative Law Judge William L. Schmidt issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party filed answering briefs, and the Respondent filed a reply brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings,[1] and conclusions as modified below and to adopt the recommended Order as modified.

The judge found, and we agree, that the Respondent violated Section 8(a)(3) and (1) of the Act by suspending and discharging employee Ezequiel Zarate and that it violated Section 8(a)(1) by interrogating employee Heath James.[2] For the reason set forth below, however, we reverse the judge’s finding that the Respondent violated Section 8(a)(1) by conditioning future consideration of a job classification and wage rate adjustment for employee Fernando Lafarga on the absence of union representation.

In May 2004, approximately a week before a representation election was conducted among the Respondent’s employees, Branch Manager Kevin Imig met with Lafarga to discuss Lafarga’s annual performance review. Imig explained that Lafarga would not receive a wage increase because he was already earning more than the top hourly wage for his classification, customer service employee (yardman). Lafarga disputed his classification, saying that he had been hired as a leadman painter, not as a yardman, and that he should receive an increase. Imig told Lafarga that he could do nothing about the classification at that time, but that they could talk about it later. He said the “company had some activities at the time,” so he could not give an answer “right then.” Imig continued, “If . . . there was nothing in between, you could come to see me and we could talk about any problems about your classification.”

The judge found that despite the absence of a specific mention of the Union or union activity, Imig’s references “conveyed a clear message that Lafarga’s request would be postponed and might be considered later provided the employees remained unrepresented.” He concluded that Imig unlawfully conditioned future consideration of Lafarga’s adjustment request on the absence of union representation in violation of Section 8(a)(1). We disagree.[3]

Contrary to the judge, we find that Imig did not condition further consideration of Lafarga’s pay adjustment on the absence of union representation. There is no evidence that Imig said or did anything during the review that would link consideration of Lafarga’s classification to the absence of union representation. Nor did he state that Lafarga’s pay adjustment would be provided later if the employees did not vote for the Union.

Further, even assuming arguendo that Imig’s reference to “activities” could reasonably be understood as a reference to union activities, this would not make Imig’s statement coercive.[4] Lafarga sought a favorable change in his classification. Our dissenting colleague argues that Imig could lawfully have granted Lafarga’s request so long as the action was not motivated by a desire to influence the election. This argument assumes that a wage raise was being considered or was to be granted to Lafarga. There is nothing to suggest that such a change had been considered prior to the union campaign. The Board has drawn the inference that benefits that are granted during the critical period of an election are coer...

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