Nations Rent, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2003

339 N.L.R.B. 830 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 830
Nations Rent, Inc. and International Union of Operat-
ing Engineers, Local 150, a/w International Un-
ion of Operating Engineers, AFL–CIO. Cases
25–CA–27257–1, 25–CA–27257–3, 25–CA–
27608–1, 25–CA–27613–1, 25–CA–27686–1
amended, and 25–CA–27994–1
July 29, 2003
DECISION AND ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On August 12, 2002, Administrative Law Judge Mar-
garet M. Kern issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs. The Respondent 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 exceptions1 and briefs and has decided to
remand this proceeding to the judge for further findings,
analysis, and conclusions consistent with this decision.
The issue before the Board is whether the judge erred
in finding that the Respondent complied with a settle-
ment agreement approved by the Regional Director for
Region 25 on November 14, 2001, and that, therefore,
the settlement agreement should be reinstated and the
February 28, 2002 consolidated complaint dismissed. In
their respective exceptions, the General Counsel and the
Charging Party contend that the judge erred in finding
that the Respondent complied with the settlement agree-
ment. For the reasons set forth below, we agree with the
General Counsel and the Charging Party. We find, con-
trary to our dissenting colleague, that the Respondent
failed to adhere to certain terms of the November 14,
2001 settlement agreement, and that the Respondent’s
noncompliance warrants setting the settlement agreement
aside and reinstating the February 2002 consolidated
complaint.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts in brief are as follows. The Respondent is
engaged in the sale, service, and rental of construction
equipment and supplies. In March 2000, organizer Philip
Overmeyer asked union member Jerry Bickel to seek

1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
employment at the Respondent’s Elkhart, Indiana facil-
ity, and if hired, to organize the employees. The Re-
spondent hired Bickel on March 24, 2000. On May 15,
2000, Bickel began discussing the Union with the em-
ployees, and in July 2000 employee Ryan Stoll signed an
authorization card and participated in the Union’s orga-
nizing effort.
In July 2000, the Respondent held a series of meetings
with the employees to discuss whether there was a need
for a union at the Respondent’s facility. Between August
and September 2000, the Respondent allegedly engaged
in unfair labor practices that resulted in charges being
filed by the Union in September 2000 claiming various
violations of Section 8(a)(1) and (3) of the Act, including
the discharges of Bickel2 and Stoll.3 The Regional Di-
rector issued a complaint based on the above unfair labor
practice charges on December 21, 2000.
On April 3, 2001,4 the parties reached an informal set-
tlement agreement wherein the Respondent promised,
among other things, that it would not engage in the fol-
lowing conduct: (1) suspend, discharge, or otherwise
discriminate against employees because of their union
activities; (2) interrogate employees concerning their
union affiliation and sympathies; (3) promulgate, main-
tain, or enforce rules that prohibit employees from solic-
iting for the union during nonworking time; and (4) pro-
hibit and/or instruct employees not to wear union buttons
or hats. The April 3 settlement agreement resolved, inter
alia, the allegations as to Stoll’s suspension and dis-
charge.
Subsequently, based on further alleged misconduct by
the Respondent, the Union filed additional unfair labor
practice charges in May and July, alleging, among other
things, that the Respondent unlawfully enforced an
overly broad no-solicitation/no-distribution rule; inter-
fered with lawful picketing; and unlawfully issued a dis-
ciplinary action report to Bickel and discharged him a
second time.5 On September 20, the Regional Director
partially revoked the April 3 settlement agreement and
issued a consolidated complaint based on the May and
2 On September 26, 2000, Branch Manager Dan Olinger terminated
Bickel for allegedly violating the Respondent’s allegedly overly broad
no-solicitation/no-distribution rule. District Manager Barry Boggs
overruled Olinger’s decision and reinstated Bickel the next day.
3 The Respondent suspended and discharged Stoll on September 23
and 28, 2000, respectively.
4 All dates are in 2001, unless stated otherwise.
5 The Respondent allegedly issued a disciplinary action report to
Bickel on April 26 for “soliciting and distributing literature for an or-
ganization on company property, during working hours.” On May 19,
Bickel apprised the Respondent, verbally and in writing, that he was
going on strike to protest the Respondent’s unfair labor practices. By
letter dated May 19, the Respondent notified Bickel that it acknowl-
edged and accepted his alleged letter of resignation effective May 19.
339 NLRB No. 101
NATIONS RENT, INC. 831
July unfair labor practice charges, as well as the Septem-
ber 2000 charges.6
On November 14, the Regional Director approved a
second informal settlement agreement in which the Re-
spondent agreed that it would not engage in the follow-
ing conduct: (1) promulgate, maintain, or enforce its
written no-solicitation/no-distribution rule in the em-
ployee handbook; (2) promulgate, maintain, or enforce
rules prohibiting employees from discussing union-
related subjects during working hours; (3) interfere with
lawful picketing by the Union; (4) interrogate employ-
ees; (5) threaten employees with plant closure; (6) inform
employees that they could not talk to each other or keep
them apart because of their union activities; (7) prohibit
employees from wearing union buttons or hats; (8) issue
disciplinary action reports because employees engaged in
union activities; and (9) discharge or discriminate against
employees because of their union activities. The Re-
spondent also agreed to offer Bickel reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, and make him whole by pay-
ment to him in the amount of $2000. The Respondent
further agreed to rescind the disciplinary action report
issued to Bickel on April 26; remove from its files any
references to the disciplinary action report and Bickel’s
discharges on September 26, 2000 and May 19; and no-
tify Bickel in writing that the documents were removed
from its files and that the disciplinary action report and
discharges would not be used against him in any way.
In January 2002, the Union filed an unfair labor prac-
tice charge claiming, among other things, that Bickel was
treated as a new hire when he was reinstated to his for-
mer position on December 10, and that the Respondent
failed to pay Bickel for vacation time used prior to his
unlawful termination on May 19. On February 28, 2002,
the Regional Director issued an order revoking the sec-
ond settlement agreement and a consolidated complaint
that reopened the prior allegations in the previous com-
plaints.
II. THE JUDGE’S DECISION
Before the judge, the General Counsel and the Charg-
ing Party argued that the Respondent violated the second
settlement agreement by (1) failing to rescind its alleg-
edly overly broad no-solicitation/no-distribution rule; (2)
failing to notify Bickel in writing that any references to
Bickel’s disciplinary action report or his discharges had
been removed from the Respondent’s files and that the
disciplinary report and discharges would not be used
against him in any way; and (3) failing to properly rein-

6 The Regional Director did not revoke the portion of the April 3 set-
tlement relating to Ryan Stoll.
state Bickel by treating him as a new hire; and (4) failing
to properly make Bickel whole.
The judge found no merit in any of these contentions
and concluded that the Regional Director had improperly
set aside the settlement agreement. Accordingly, she
recommended that the February 28, 2002 consolidated
complaint be dismissed.
III. ANALYSIS
For the reasons set forth in the judge’s decision, we
agree with the judge’s rejections of contentions (3) and
(4) above. In other words, we agree with the judge that
Bickel was properly reinstated to his former position and
was properly made whole.
However, for the reasons set forth below, we find
merit in contentions (1) and (2). Contrary to the judge
and our dissenting colleague, we conclude that the Re-
spondent breached the settlement agreement by continu-
ing to maintain the no-solicitation/no-distribution rule
and by failing to notify Bickel in writing of the expunc-
tion of his discipline. We also conclude that the Respon-
dent’s violation of the settlement warrants setting it aside
and reinstating the consolidated complaint.
A. Applicable Principles
We agree with the judge’s statement of the applicable
legal principles. The Board has long held that “a settle-
ment agreement may be set aside and unfair labor prac-
tices found based on presettlement conduct if there has
been a failure to comply with the provisions of the set-
tlement agreement or if postsettlement unfair labor prac-
tices are committed.” Twin City Concrete, 317 NLRB
1313 (1995), quoting YMCA of Pikes Peak Region, 291
NLRB 998, 1010 (1998), enfd. 914 F.2d 1442 (10th Cir.
1990), cert. denied 500 U.S. 904 (1991). Moreover, we
have noted that the issue of whether to give effect to or
rescind a settlement agreement “cannot be determined by
a mechanical application of rigid a priori rules but must
be determined by the exercise of sound judgment based
upon all the circumstances of each case.” Deister Con-
centrator Co., 253 NLRB 358, 359 (1980) (quoting Ohio
Calcium Co., 34 NLRB 917, 935 (1941), enfd. in part
133 F.2d 721 (6th Cir. 1943)).
Here, there is no complaint allegation that the Respon-
dent committed unfair labor practices after the approval
of the second settlement agreement. Therefore, our in-
quiry is limited to whether there has been a failure to
comply with the provisions of the second settlement
agreement.
B. Alleged Maintenance of the No-Solicitation/
No-Distribution Rule
In the notice attached to the November 14 settlement
agreement, the Respondent agreed not to “promulgate,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 832
maintain, or enforce” the following no-solicitation/no-
distribution rule:

Employees may not solicit for organizations, sell goods
or services, or distribute catalogs or literature of any
kind during working hours, or any time in public areas
on Company property. Employees are prohibited from
distributing literature of any kind in work areas. Out-
side third parties are also prohibited from entering
Company property to solicit or distribute goods, ser-
vices, or literature, except as contracted by the Com-
pany.

Employees or their relatives who have their own out-
side businesses are not permitted to sell or solicit on
Company premises, other than in the normal context of
the customer/vendor relationship through approved
purchasing channels. In this context, care must be
taken to avoid conflicts of interest or the appearance of
any such conflicts.

This rule appeared in the employee handbook most re-
cently published in July 2000.
In December, when Bickel returned to work following
approval of the settlement agreement, Bickel received an
employee handbook that still contained the no-
solicitation/no-distribution rule.7 The record shows that
one of two newly hired employees also received a hand-
book with the same unchanged rule. When Bickel and
the new employee received the handbooks, they also
were given a written acknowledgement to sign that stated
that the July 2000 handbook represented policies in ef-
fect at the time of publication and that the policies in the
handbook were subject to change at any time.
The judge found, and our dissenting colleague agrees,
that while it would have been “the wiser course” for the
Respondent to have crossed out the rule before it distrib-
uted copies of the handbook after the settlement, the fail-
ure to do so does not constitute promulgation or mainte-
nance of the rule in violation of the settlement agree-
ment. In the judge’s view, the posted settlement notice
in conjunction with the written acknowledgement state-
ment sufficiently communicated to the employees that
the Respondent’s rule was rescinded. The judge also
concluded that the Respondent had no obligation under
the settlement agreement to “rewrite, modify or ‘clean
up’” the handbook rule. While we agree with the judge
that the Respondent was not required to promulgate a
new rule, we find, unlike the judge and our colleague,
that the Respondent’s continued distribution of the hand-

7 Five days later, the Respondent posted the Board notice stating that
the rule would not be maintained. The notice remained posted until
May 2002.
book containing the no-solicitation/no-distribution rule
constitutes maintenance of that rule in breach of the set-
tlement agreement.
Our dissenting colleague declines to set aside the set-
tlement in light of the posting of the Board’s notice “al-
most contemporaneously with the distribution of the
handbook to the two employees.” In our view, the
posted Board notice, even when considered in conjunc-
tion with the acknowledgement statement that the poli-
cies in its handbook were subject to change at any time,
was insufficient to clearly convey to newly hired em-
ployees that the handbook rule had been rescinded. Em-
ployees hired after the removal of the posted Board set-
tlement notice who received the unrevised handbook
would have had no knowledge that the no-solici-
tation/no-distribution rule had been rescinded. Thus, we
find that the settlement agreement implicitly required
that the Respondent delete the no-solicitation/no-
distribution rule from the employee handbook. Its failure
to do so constituted continued maintenance of that
unlawful rule, in violation of the agreement.
Nor do we agree with the judge and our dissenting col-
league that the Respondent’s posting of a notice stating
that the rule would not be maintained or enforced consti-
tuted compliance with the settlement agreement. Indeed,
the Respondent’s simultaneous distribution of the hand-
book containing the rule and the posting created an am-
biguity as to whether the rule was still in effect. As long
as the rule still appears in the handbook being distrib-
uted, employees could reasonably have believed that the
rule remained in full force and effect.8 This ambiguity in
the status of the rule could have discouraged employees
from engaging in protected activity.
For these reasons, we find that the Respondent main-
tained the no-solicitation/no-distribution rule in violation
of the settlement agreement. Given the potential impact
of the Respondent’s conduct on the employees’ exercise
of their Section 7 rights, we also find the Respondent’s
breach of the agreement warrants setting it aside and
reinstating the February 2002 complaint.9
8 We recognize that it may be impractical to immediately remove the
rule from extant handbooks. Thus, we would not insist upon such
removal. Until a new handbook is printed, we would be satisfied with
an “x” through the rule or a notice, on that page, that the rule is no
longer in force.
9 Our dissenting colleague would excuse the Respondent’s distribu-
tion of the unchanged handbook to the two employees, but notes that he
would set aside the settlement agreement if the Respondent continues to
distribute the handbook. We find, contrary to our dissenting colleague,
that the distribution of the handbook to the two employees was not de
minimis, and we would not require additional breaches of the settle-
ment agreement in order to set it aside.
NATIONS RENT, INC. 833
C. Alleged Failure to Provide Written
Expungement Notice
In the notice attached to the settlement agreement, the
Respondent agreed to notify Bickel “in writing” that it
had expunged from its files any reference to the discipli-
nary action report and the discharges, and that these mat-
ters would not be used against him in any way. Although
the documents in question were removed from the Re-
spondent’s files, it is undisputed that the Respondent
failed to provide Bickel written notice that that action
had been taken.
Further, at the hearing, an issue arose as to whether
Bickel ever received notice of any kind that his file had
been expunged. Branch Manager Chad Green testified
that he told Bickel that Green had removed everything
from Bickel’s file having to do with union activity, while
Bickel denied being so informed by Green. Resolving
what she termed a “significant credibility issue,” the
judge credited Green’s testimony over Bickel’s and
found that Green informed Bickel that all disciplinary
notices had been removed from his file.
The judge acknowledged that the Respondent’s failure
to provide Bickel written notice that his file had been
expunged constituted a breach of its obligations under
the settlement agreement. In view of the “Respondent’s
compliance with all of the other provisions of the agree-
ment,” however, the judge concluded that the Respon-
dent’s “failure to give Bickel written notice did not so
undermine the settlement agreement as to amount to
noncompliance.”
We disagree. In the preceding section, we concluded,
contrary to the judge and our dissenting colleague, that
the Respondent has not complied with “all of the other
provisions of the agreement.” Therefore, we view the
Respondent’s failure to provide Bickel written notice in a
different light.
In cases that involve unlawful discipline and/or dis-
charge, the Board requires an employer to remove any
references to its discriminatory action from its files, and
notify the employee in writing that this has been done
and that the expunged matter will not be used against the
employee in any way. Fort Wayne Foundry Corp., 296
NLRB 127 (1989); Sterling Sugars, 261 NLRB 472
(1982). The Board’s expungement requirement protects
an “individual affected by the unlawful conduct [from]
subsequent use of files pertaining to such misconduct.”
Sterling Sugars, supra. In addition, a written expunge-
ment letter provides an acceptable and uniform method
of proving that the charged party has taken the appropri-
ate affirmative remedial action as set forth in a settlement
agreement or order. Thus, the written notice requirement
serves substantial remedial purposes and is not to be
whittled down or taken lightly.10
Moreover, in contrast to our dissenting colleague, we
do not consider oral notification to be an adequate substi-
tute for the written notification requirement. In our view,
the failure to provide written expungement notification is
not an insignificant or technical violation of a settlement
or order. A written expungement notice is not an oner-
ous or ambiguous requirement, and we expect that par-
ties who agree to provide it or are ordered to do so shall
provide it. In the settlement agreement at issue here, the
Respondent clearly committed to providing that written
notice to Bickel but did not do so. See Low Kit Mining
Co., 309 NLRB 501, 506–507 (1992), enfd. 3 F.3d 720
(4th Cir. 1993) (failure of the respondent to send the em-
ployees written expungement letters provided “ample
basis for setting aside the settlement”). Thus, here we
conclude that the Respondent breached a basic term of
the settlement and that the breach warrants setting aside
the settlement agreement for noncompliance.11
Conclusion
The General Counsel and the Charging Party have
proven that the Respondent failed to comply with mate-
rial provisions of the settlement agreement. Therefore,
we find that the Regional Director acted properly in set-
ting the agreement aside. Twin City Concrete, supra.
Accordingly, we shall reinstate the February 28, 2002
consolidated complaint and remand the case to the judge
to consider the presettlement unfair labor practice allega-
tions and make the necessary findings, analysis, and con-
clusions.

10 Indeed, one reason why the Board requires that the notice be pro-
vided in writing is to avoid the very kind of credibility conflict that
surfaced in this case as to whether the required notification has been
given to the employee.
11 In support of his argument that the settlement agreement should
not be set aside because the Respondent has taken “significant remedial
measures” to comply with the provisions of the agreement, our col-
league relies on Deister Concentrator Co., 253 NLRB 358, 359 fn. 5
(1980). We find that case distinguishable from the present case. In
Deister, unlike here, the General Counsel argued that the settlement
agreement should be set aside in light of the respondent’s subsequent
unfair labor practices. (The Board rejected this argument.) In addition,
in Deister, unlike here, the General Counsel argued that a notice that
the respondent posted next to the Board’s official notice so undermined
the settlement as to amount to noncompliance. It was in the context of
rejecting that argument that the Board referred to the “significant reme-
dial actions” that the respondent had taken, and the Board reasoned that
those actions would demonstrate to employees that the respondent was
abiding by the settlement. Thus, in Deister, unlike here, there was no
finding that the respondent failed to fulfill specific obligations set forth
in the settlement agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 834
ORDER
It is ordered that the February 28, 2002 complaint is
reinstated.
IT IS FURTHER ORDERED that the proceeding is re-
manded to Administrative Law Judge Margaret M. Kern
to consider the merits of the underlying unfair labor prac-
tice allegations, and prepare and serve on the parties a
supplemental decision setting forth credibility resolu-
tions, findings of fact, conclusions of law, and a recom-
mended Order consistent with this remand. Copies of the
supplemental decision shall be served on all parties, after
which the provisions of Section 102.46 of the Board’s
Rules and Regulations shall be applicable.

MEMBER SCHAUMBER, dissenting.
Unlike the majority, I agree with the judge’s decision.
In light of the significant remedial measures the Respon-
dent has taken in compliance with the settlement agree-
ment together with the absence of any renewed unlawful
labor practices, I am unprepared to set aside the settle-
ment agreement under the circumstances presented. See,
e.g., Deister Concentrator Co., 253 NLRB 358 (1980).
Respondent’s failure to notify Bickel by separate written
notification of the expungement from his personnel file
of the disciplinary reports, when he was notified orally
after the action was taken, does not in my view under-
mine the settlement agreement to such an extent as to
warrant setting it aside. As the judge, however, I pause
with Respondent’s failure to cross out the offending no-
solicitation/no-distribution rule in its handbook. While it
clearly would have been preferable for Respondent to
have done so, since almost contemporaneously with the
distribution of the handbook to the two employees
Respondent posted the Board’s notice stating that the
rule would no longer be given effect, I would not set
aside the settlement for this reason. However, if the
Respondent was to continue to use its handbook
unaltered or without an attached notice expressly
deleting the contested no distribution/no solicitation rule,
I would set it aside.

Steve Robles, for the General Counsel.
James M. Walters, for the Respondent.
Alexia Kulwiec, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me in South Bend, Indiana, on June 3 and 4,
2002.1 A consolidated complaint issued on December 21,
1 At the close of the hearing, counsel for the General Counsel re-
quested that the record remain open pending the investigation of a
newly filed charge in Case 25–CA–28107–1. That application was
2000, based upon unfair labor practice charges filed on Sep-
tember 29, 2000, by International Union of Operating Engi-
neers, Local 150, a/w International Union of Operating Engi-
neers, AFL–CIO (Union), against Nations Rent, Inc. (Respon-
dent). On April 3, 2001, the Regional Director for Region 25,
approved a settlement agreement resolving the allegations in
the December 2000 complaint. On September 20, 2001, an
order partially revoking the settlement agreement and a con-
solidated complaint issued based upon unfair labor practice
charges filed on September 29, 2000, and May 21 and 24, and
July 2 and 27, 2001. On November 14, 2001, the Regional
Director approved a second settlement agreement resolving the
allegations of the September 2001 complaint. On February 28,
2002, an order revoking the second settlement agreement and
consolidated complaint issued based upon charges filed on
September 29, 2000, May 21 and 24, July 2 and 27, 2001, and
January 4, 2002.
In the February 2002 complaint it is alleged that since July
2000, Respondent has maintained an unlawful no-solici-
tation/no-distribution rule in its employee handbook. It is fur-
ther alleged that on August 8, 2000, Respondent interrogated
employees and threatened to close the Company if employees
selected the Union as their collective-bargaining representative.
It is alleged that on August 8, 2000, Respondent promulgated
and has since maintained a rule prohibiting employees from
talking about the Union during working hours, and informed
employees they were not to talk with one another and would be
kept apart because of their union activities. It is alleged that on
September 6 and 26, 2000, Respondent instructed employees to
remove their union buttons and union hats. It is alleged that
commencing on May 21, 2001, Respondent interfered with the
Union’s ability to engage in lawful picketing. Finally, it is
alleged that Respondent discharged Jerry Bickel on September
26, 2000, reinstated him on September 27, 2000, issued a writ-
ten warning to him on April 26, 2001, and discharged him a
second time on May 19, 2001, because of his union activities
and because he engaged in an unfair labor practice strike.
The General Counsel contends that Respondent violated the
terms of the second settlement agreement in five ways: (1) by
failing to reinstate Bickel to his former position without preju-
dice to his seniority and other rights and privileges; (2) by fail-
ing to make Bickel whole; (3) by failing to rescind the discipli-
nary notice issued to Bickel on April 26, 2001; (4) by failing to
notify Bickel in writing that it had rescinded the disciplinary
notice and his two discharges; and (5) by continuing to promul-
gate, maintain and enforce the unlawful no-solicitation/no-
distribution rule contained in the employee handbook.
Respondent denies that it violated the terms of the second
settlement agreement and maintains that the complaint should
be dismissed because the underlying unfair labor practices have
been fully remedied. Alternatively, Respondent denies that it
engaged in the unfair labor practices alleged in the February
2002 complaint.

denied, and I adhere to that ruling. The record was left open for the
purpose of receiving three W-2 forms. Those forms are hereby made a
part of this record as ALJ Exhs. 1(a) through (c).
NATIONS RENT, INC. 835
FINDINGS OF FACT
I. JURISDICTION
Respondent admits and I find it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits and I find the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent has been engaged in the sale, service, and rental
of construction equipment and supplies since 1997. Corporate
headquarters are in Fort Lauderdale, Florida, and a regional
office is maintained in Columbus, Indiana. Respondent main-
tains a facility at 1651 Toledo Road, Elkhart, Indiana, the facil-
ity involved in this case (the facility). Toledo Road runs in an
east/west direction, and the facility is located along the south
side of the roadway. A chain link fence that surrounds the fa-
cility is situated approximately 30 feet from Toledo Road.
There are two gated entrances/exits along Toledo Road; the east
gate is a 30-foot sliding gate, and the west gate is a 25-foot
swing gate. The 30-foot distance between the fence and Toledo
Road is surfaced with limestone-gravel paving.
Respondent employs approximately 10 drivers and service
employees. Tim Bontrager is a supervisor, Barry Boggs is a
district manager, and Alan Stewart is a human resource man-
ager. Respondent admits that these individuals are supervisors
and agents of Respondent within the meaning of the Act. Re-
spondent further admits that Dan Olinger was the branch man-
ager and Chad Green was the assistant branch manager until the
fall of 2001, and that they were, until that time, supervisors and
agents within the meaning of the Act. Green was promoted to
branch manager in September 2001.
On December 17, 2001, Respondent filed a petition for Chap-
ter 11 relief in the Bankruptcy Court, Wilmington, Delaware.
That application was still pending at the time of the hearing.
B. The No-Solicitation/No-Distribution Rule
Respondent publishes and distributes an employee hand-
book. The most recent edition of the handbook, published in
July 2000, contains the following provision at page 34:

Employees may not solicit for organizations, sell goods or
services, or distribute catalogs or literature of any kind during
working hours, or any time in public areas on Company prop-
erty. Employees are prohibited from distributing literature of
any kind in work areas. Outside third parties are also prohib-
ited from entering Company property to solicit or distribute
goods, services, or literature, except as contracted by the
Company.
C. The Organizing Attempt
In late March 2000, organizer Philip Overmeyer asked
Bickel, a member of the Union, to seek employment at Re-
spondent’s facility and, if hired, to organize Respondent’s em-
ployees. On March 24, 2000, Olinger interviewed and hired
Bickel and Bickel began working on April 3, 2000, as a semi-
truck driver. From April 3, 2000, to mid-May 2000, Bickel
remained covert in his support of the Union. On or about May
15, 2000, he began speaking with employees about the Union.
On July 7, 2000, Respondent conducted a meeting of em-
ployees in its showroom. Among those present were Olinger,
Boggs, and Bontrager. The film “Little Card, Big Trouble,”
was shown and there was a discussion about the need for a
union at Respondent’s facility. It was mentioned that there was
an organizing drive going on at one of Respondent’s facilities
in Detroit and that management wanted to stop the Union be-
fore it came to Elkhart. Ryan Stoll, a mechanic who had been
hired 2 weeks after Bickel, asked why employees couldn’t have
a retirement plan and an insurance plan like the Union’s plan.
He also asked a question about the pay scale.2
On July 13, 2000, Overmeyer met with Bickel and Stoll and
both signed authorization cards. After this meeting, Bickel
continued to talk to employees about the Union. According to
both Bickel and Stoll, there were no set lunch or breaktimes for
employees. Bickel testified he spoke to employees during lulls
in the workday, and he denied interfering with employees’
work. On September 18, 2000, Overmeyer sent a letter to Re-
spondent’s employees requesting them to attend a meeting on
September 25, 2000. The only employee who attended the
meeting was Bickel.
Stoll testified that on the morning of August 8, 2000, he was
in the shop when he was approached by Bontrager and Olinger.
They summoned him into Bontrager’s office, and the door was
closed. Olinger said he heard Stoll was talking to other em-
ployees about the Union, and Stoll said yes. Olinger said that
Stoll was not allowed to talk to employees during working time
and that he was not allowed to talk during breaks or lunchtime.
He also said if Stoll tried to bring the Union in, Respondent
would close the doors and that all a union does is take employ-
ees’ money. Later that morning, Bickel and Stoll were speak-
ing with one another in the parking lot when Bontrager ap-
proached them and said that he was supposed to keep them
apart and not have them talk to one another. He said Olinger
had told him to keep an eye on them and that they were not to
talk about the Union. Bickel and Stoll both testified that when
Bontrager thereafter saw them talking with one another, he
frequently asked if they were having a union meeting. Neither
Bontrager nor Olinger testified.
On September 6, 2000, Stoll wore a union button to work
which read, “Be Wise, Organize.” Olinger told Stoll, in the
presence of Bickel, that he had to remove the button because he
was not allowed to advertise for the Union on company time.
Prior to September 26, 2000, Bickel and Stoll wore baseball-
type caps to work bearing different corporate logos and they
observed other employees wearing similar caps. Neither Bickel
nor Stoll had been told not to wear these types of caps to work.
On September 26, 2000, Bickel and Stoll each wore a baseball

2 There are no complaint allegations relating to this meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 836
cap with lettering that read, “IUOE, Local 150.”3 Olinger ap-
proached them and told them they could not wear the hats.
When Bickel asked why, Olinger said that Bickel was insubor-
dinate and that he was in violation of page 34 of the employee
handbook. Bickel said it was just a hat, but Olinger stated that
it was grounds for termination and that in addition, Bickel was
not supposed to speak to anyone or hand out literature during
company hours. Bickel asked, “all this for a hat?” Olinger
responded, “not for any organizations, that was in the hand-
book.” Green, who was present during this conversation, added
that not even a Nike hat could be worn. Bickel asked if he was
being fired, and Olinger said, “terminated, by the handbook.”
Bickel left the premises. Green, the only witness called by
Respondent to testify at the hearing, was not asked about this
conversation.
On the evening of September 26, 2000, Bickel retrieved a
phone message left by Barry Boggs. Bickel called Boggs the
following morning and Boggs said that he was overriding Olin-
ger’s decision to terminate him and Boggs asked if he would be
interested in coming back to work. Bickel said yes and he re-
turned to his regular duties on September 28, 2000. He was
fully repaid for the time he was not at work. After he returned
to work he wore his union hat on a daily basis. For 6 months
following his reinstatement, Bickel worked without incident.
On April 25, 2001, Bickel left a copy of a collective-
bargaining agreement on another employee’s toolbox and asked
him to take a look at it. Later that day, Bickel saw the em-
ployee and Olinger standing together looking at the agreement.
The next day, April 26, 2001, Bickel was given a disciplinary
action report by Olinger that read “soliciting and distributing
literature for an organization on company property during
working hours. Jerry must stop this immediately.” Later that
day, Bickel asked Olinger, in the presence of Bontrager,
whether the warning meant he could not talk to employees
about the benefits of a union. Olinger said it was in the hand-
book that there could be no solicitation for an organization on
company property or on company time, and that if Bickel was
talking about an organization, that meant he was not working.
Bickel and Stoll testified that employees regularly engaged
in casual, nonwork related discussions while they were work-
ing, covering such topics as sports, movies, and politics. Bickel
observed employees selling items at work, such as a Notre
Dame football helmet and tools, and he observed nonwork
related literature on the table in the employee break area, in-
cluding a sales catalog and a Chicago Bulls game book. To
Bickel’s knowledge, no employee was told they could not en-
gage in these activities, nor was any employee disciplined for
engaging in these activities.
On the morning of May 10, 2001, Olinger again gave Bickel
a written warning relating to an incident that occurred on May
7, 2001.4 The warning stated, in relevant part, “employee told
manager that he was distributing literature to customers while
on his working time, and stated he will distribute further litera-

3 Stoll had been suspended on September 23, 2000, 3 days before
this incident. His suspension, and his subsequent discharge on Septem-
ber 28, 2000, were resolved in the first settlement agreement.
4 This warning is not alleged in the complaint.
ture. One customer has confirmed receiving literature . . . Jerry
must not distribute literature of any sort while he is working,
including while making deliveries, or in work areas. Further
violations will subject Jerry to discipline, up to and including
immediate discharge.” Bickel testified that he had in fact dis-
tributed literature to Respondent’s customers describing the
difference in wage rates between Respondent and union-
represented competitors.
D. Bickel’s Termination
On the morning of May 19, 2001, Bickel told Olinger that he
was going out on strike and he handed Olinger a letter stating
that the strike was to protest Respondent’s unfair labor prac-
tices. The letter further stated that Bickel looked forward to
returning to work once the dispute was resolved. Bickel testi-
fied that at no time did he tell Olinger, or anyone else, that he
was quitting or that he intended to quit. The following week,
Bickel received a certified letter from Olinger, dated May 19,
2001, which stated, in relevant part, “I acknowledge receipt and
accept your letter of resignation effective May 19, 2001.” By
certified letter dated June 4, 2001, Bickel wrote Olinger that he
had not resigned, that he had gone out on an unfair labor prac-
tice strike, and that he wished to return to work upon resolution
of the dispute.
E. The Events of May 21–24, 2001
On May 21, 2001, at approximately 6:30 a.m., the Union
commenced handbilling and picketing at the facility with signs
that read, “IUOE Local 150 AFL–CIO on strike against Nations
Rent for unfair labor practices.” Ambulatory picketing was
also conducted by two full-time staff organizers who followed
Respondent’s trucks from the facility to jobsites. Overmeyer
testified that he specifically advised the staff organizers con-
ducting the ambulatory picketing not to follow anyone home
and Overmeyer testified that no employee was followed home
to his knowledge. According to Overmeyer, the reason for the
strike was the disciplinary action that had been taken against
Bickel.
Records of the Elkhart County Public Safety Communica-
tions Center reflect at 7:47 a.m. on May 21, 2001, a call was
received requesting that a police officer respond to Respon-
dent’s facility. Officer James Smith, of the Elkhart County’s
Sheriff Office, arrived at the facility at 8:30 a.m. and he ob-
served several picketers carrying signs and standing along the
south edge of Toledo Road, in the vicinity of the east gate.
Officer Smith proceeded to the office where he spoke to Olin-
ger.5 Olinger wanted to know what the Company’s rights were
with respect to entrances and exits being blocked, and how
close the picketers could be to the Company’s property. Smith
said the picketers were allowed to remain within a 15-foot pub-
lic easement measured from the edge of Toledo Road toward
the fence. He also said they were not allowed to block the en-
trances/exits to the company’s property. After speaking with
Olinger, Smith went outside and spoke to two of the picketers,
neither of whom Smith could identify. According to Smith, he
told them they could not block the entrances or exits to the
5 Respondent acknowledged in its brief that it was Olinger to whom
Officer Smith spoke.
NATIONS RENT, INC. 837
facility, and that they had to remain within the public easement.
Smith left the facility at 8:41 a.m.
Robert Barthel is an elderly gentleman who has been retired
from the Union for 17 years, and he identified himself as one of
the picketers to whom Smith spoke on May 21, 2001. Barthel
recalled that Smith told him and another picketer that they had
to stay within the public easement, and that they should stay at
least four feet from the edge of the pavement for their own
safety. Barthel recalled the tone of the conversation as conge-
nial.
On May 22, 2001, Overmeyer and Barthel arrived at the fa-
cility at about 6:30 a.m. Both testified that they observed ap-
proximately seven large pieces of construction equipment
parked along the outside of the fence and extending into the
public easement. According to Barthel, the location of the
equipment “made it a little difficult” for the picketers to park
their cars, but he managed to park his car at least 6 feet from
the roadway and within the easement. Barthel testified that
notwithstanding the presence of the equipment, the picketers
had 50-unobstructed square feet within which to picket. Over-
meyer agreed that the equipment made parking a little more
difficult, but did not in any way hinder picketing activities.
On May 23, 2001, Overmeyer and Barthel again arrived at
about 6:30 a.m. and both observed even more pieces of equip-
ment parked outside the fence than had been parked there the
day before. Photographs taken that day reflect six large pieces
of equipment parked between the west gate and the east gate,
and three large pieces of equipment parked west of the west
gate. Barthel acknowledged that the presence of the equipment
did not prevent the picketers from parking their cars within the
easement, nor did it impair their ability to engage in picketing.
Overmeyer, on the other hand, testified “that it was much more
difficult for [the picketers] to remain four feet off of the edge of
the roadway . . . it was just dangerous.” According to Barthel,
a large air compressor was running inside the fence and the
noise from the compressor made it almost impossible to engage
in conversation.
That same morning, the police communications center re-
ceived a call at 7:12 a.m. requesting that a police officer re-
spond to Respondent’s facility. Officer Smith was again dis-
patched, and when he arrived at 8:05 a.m., he observed the
equipment parked outside the fence. He also observed two
picketers standing along the edge of Toledo Road, in the vicin-
ity of the east gate, and one or two cars parked within the pub-
lic easement. Smith passed through the gate and observed a
large diesel-powered generator operating in the yard area of the
facility, within several feet of the inside of the fence. Smith
entered the office and spoke to Olinger. Olinger told him that
earlier that morning the picketers’ cars had been parked be-
tween the easement and the fence, on company property, and
that after he called the police the cars had been moved. Olinger
suspected the picketers had a scanner set to monitor police
communications, and that by using the scanner they were able
to move their cars to an area within the easement before the
police arrived. Smith testified that Olinger told him that pick-
eters were following trucks to jobsites, and that they were fol-
lowing individuals home at night. According to Smith, Olinger
“wanted [him] to look into that or ask [the picketers] about
that.” Smith told Olinger that the generator noise was so loud
that he would not be able to talk to the picketers without shut-
ting it off, and the generator was shut off.
Smith proceeded to talk to two picketers, neither of whom
Smith was able to identify. Smith testified that he advised them
that a claim was being made that they had moved their cars
from where they had been earlier parked outside the easement,
and he asked them if they had a police scanner. The picketers
denied having a scanner and offered to allow Smith to search
their vehicles, which offer Smith declined. Smith told them
that it was a misdemeanor to possess a police scanner and a
jailable offense. Smith then asked them if they had been fol-
lowing individuals to jobsites and they said they had. He asked
them if they had been following individuals to their homes at
night and they said they had not. Smith left the facility at 8:22
a.m.
Barthel testified that he was one of the picketers to whom
Smith spoke on May 23, 2001. Barthel recalled Smith saying
that someone had made a call to the police claiming that the
picketers had parked their cars on company property, and that
after the call had been made, the cars had been moved.
According to Barthel, Smith told him that if he parked his car
outside the easement it would be considered trespassing and
Barthel could be arrested. Smith also said that someone had
suggested that the picketers might have police scanners and that
if so, it was illegal under Indiana law and they could be ar-
rested. Smith asked if the picketers were following anyone
home, and Barthel said no. According to Barthel, Smith replied
that if that happened, it would be considered stalking and they
could be arrested. Barthel described the tone of the conversa-
tion as congenial. In his testimony, Barthel acknowledged that
he had in fact moved his car about 30 minutes before Smith
arrived that morning. He claimed to have parked his car within
the easement, but when someone came out to get a piece of
equipment, he moved his vehicle out of the way. After the
equipment was moved he parked his car back in the same spot.

The picketers left Respondent’s facility at 4:30 p.m. on May
23, 2001. Overmeyer stayed at the facility until 5:45 p.m., and
shortly before he left, he observed several employees come out
of the facility and move the equipment back inside the fence.
He also observed a straight truck pulling into the facility loaded
with scaffolding.
On May 24, 2001, Overmeyer arrived at the facility at 5:30
a.m. He observed that scaffolding had been erected across the
entire length of the facility on Toledo Road, with the exception
of the two gates. The scaffolding was approximately seven feet
high and six feet wide, and it was positioned three feet from the
roadway. Yellow caution tape was strung along the edge of the
scaffolding closest to Toledo Road. The distance from the
fence to the scaffolding was wide enough for a car to drive
through. Photographs taken that day show that the public ease-
ment was almost entirely blocked by the scaffolding. At first
Overmeyer testified there was no place for the picketers to
park, but he later admitted that there was a gas station 300
yards east of the facility which had available parking space.
Regardless of parking space, however, Overview testified that
in his view it would have been too dangerous for picketers to
patrol the three feet of the public easement that remained unob-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 838
structed. He sent the picketers home, and no further picketing
was conducted.
Following May 24, 2001, Overmeyer drove past the facility
on a daily basis except Sundays. He observed that the scaffold-
ing remained in place until June 13, 2001 when it was taken
down. At no time did he observe anyone utilizing the scaffold-
ing. Nor did he observe equipment parked outside the fence
after May 24, 2001. Bickel similarly testified that from De-
cember 10, 2001, when he returned to work, up until several
weeks before the hearing in this case, he never again observed
large pieces of equipment parked outside the fence.
F. Bickel’s Reinstatement
On November 20, 2001, Respondent sent a backpay check
for Bickel to the compliance officer for Region 25. The check
was in the net amount of $1,563.27, calculated from the amount
specified in the second settlement agreement of $2000. Bickel
testified he received the check in the first week in December
2001, but that he did not deposit the check for several weeks.
As previously noted, Respondent filed for bankruptcy on De-
cember 17, 2001, and the check was not honored. Bickel re-
ceived a replacement check in January 2002 that he success-
fully cashed.
On the same day that the check was sent to the Regional of-
fice, Green sent Bickel a letter offering him reinstatement
which Bickel accepted. He returned to work on December 10,
2001, and he reported to Green. Green gave Bickel a copy of
the July 2000 edition of the employee handbook and Bickel
signed an acknowledgement that he received it. The acknowl-
edgement stated, in relevant part:

I understand that this Handbook represents only current poli-
cies, regulations, and benefits in effect at the time of publica-
tion . . . . The Company retains the right to change these poli-
cies and benefits as it deems advisable. I understand that it is
my responsibility to remain current on Company policies.

Green gave Bickel a “new hire kit” which included tax
forms, insurance forms, copies of Respondent’s uniform and
personal tool inventory policies, and an employee emergency
contact information sheet. Green testified the reason he gave
Bickel these forms was to make sure the Company had updated
information. Green further testified he did not give Bickel an
employment application because he was already a current em-
ployee with an initial hire date of April 3, 2000. Bickel testi-
fied that when he returned to work he maintained his original
seniority date of April 3, 2000, and that at no time did Green
tell him that he was a new hire.
Bickel has remained continuously employed by Respondent
at his former position of semi-truck driver since his reinstate-
ment on December 10, 2001. Bickel testified his job duties and
responsibilities, his hours, rate of pay, and all other terms and
conditions of employment are exactly the same as they were
prior to his discharge on May 19, 2001. He has worn his union
hat on a daily basis without incident.
G. Bickel’s Vacation Pay
The vacation provision of the employee handbook provides
that employees hired between January 1 and June 30, are eligi-
ble for 5 vacation days in the year of hire that may be taken
after July 1. Employees hired between July 1 and December
31, are not eligible for any vacation days in their year of hire.
In the second to fourth calendar years of employment, employ-
ees accrue 10 vacation days (80 hours) at the rate of 3.08 hours
every biweekly pay period. All vacation time must be taken by
December 31 of each calendar year, and accrued but unused
vacation days may not be carried over to the next calendar year.
Vacation days may be taken in advance of an accrual with a
manager’s approval, but if a terminated employee has a nega-
tive vacation balance, the appropriate number of hours is de-
ducted from the final paycheck.
Bickel testified that in April 2001, he took 40 hours vacation
time. Following his discharge, Bickel received his final pay-
check for the biweekly payroll period ending May 26, 2001. A
deduction was made for 17.2 vacation hours, equaling
$223.60.6 On July 2, 2001, the Union filed a charge in Case
25–CA–27686–1 alleging that Respondent unlawfully withheld
wages previously earned by Bickel from his final paycheck.
On July 27, 2001, the Union filed an amended charge in the
same case. The amended charge repeated the allegation relat-
ing to the withholding of wages, and added an allegation that
Bickel’s discharge on May 19, 2001, was unlawful. On August
27, 2001, the Regional Director dismissed the allegation relat-
ing to the withholding of wages, with the following findings:

The investigation revealed that Bickel had acknowledged re-
ceipt of the Employer’s Employee Handbook on April 5,
2000 and the Employer’s Revised Employee Handbook on
July 18, 2000. Both Handbooks clearly define the Em-
ployer’s policy regarding the allocation of earned, unused
leave-time pay to exiting employees and the Employer’s pol-
icy regarding its deduction of monies paid to exiting employ-
ees for used, but unearned leave, from their final paycheck.
The evidence shows that the Employer has applied this policy
uniformly and has, on other occasions, deducted money from
employees’ final paychecks for unearned, but used, leave.

In the September 2001 complaint, the discharge of Bickel was
alleged, but there was no allegation concerning the withholding
of wages. On October 11, 2001, the Office of Appeals upheld
the Regional Director’s partial refusal to issue a complaint on
the wage issue. The Office of Appeals made the following
findings:

[T]he investigation disclosed that the deductions were consis-
tent with Employer policies, and that the Employer has ap-
plied those policies to other employees. Accordingly, further
proceedings on the appealed portion of the case were deemed
unwarranted.

In the second settlement agreement, the Regional Director
approved the amount of $2000 as the make-whole amount of
money owed to Bickel as a result of his discharge. At the hear-
ing, all parties agreed that $2000 represented approximately 80
percent of the total backpay owed Bickel.

6 A deduction was also made for 14.7 sick leave hours, equaling
$191.10. The General Counsel does not challenge the appropriateness
of that deduction.
NATIONS RENT, INC. 839
When Bickel returned to work on December 10, 2001, he in-
quired about his vacation, and Green said he would get back to
him. On December 12, 2001, Stewart sent Green the following
memo:

Chad, when Jerry left the company, he was paid any vacation
time owed to him. As he returns, he would be treated the
same as any other new hire as far as vacation is concerned.
As per the policy in the HR Manager’s guide, ‘employees
hired between July 1st and December 31st are not eligible for
any vacation days in their year of hire.’ Beginning January
1st of 2002, Mr. Bickel will begin to accrue vacation hours at
the rate of 3.08 hours biweekly, and will have 40 hours avail-
able on June 30th. We do allow employees to take vacation
prior to accruals with the understanding that if they leave the
company, this would be considered money owed to the com-
pany, and would be withheld from his final paycheck.
H. Notice Posting
Green testified he posted the second settlement notice in the
employee breakroom on December 15, 2001, and that it re-
mained posted until the end of May 2002. Green further testi-
fied that within a week or two of Bickel’s reinstatement, he
removed the April 26 and May 10, 2001 warnings from
Bickel’s personnel file. There were no other disciplinary no-
tices in the file other than these two, and Green told Bickel that
he had removed all documents that had to do with union activ-
ity from his file. Bickel, on the other hand, denied that Green
told him this. Bickel was not given written notice that the re-
cords had been removed from his file.
Green testified that since the approval of the second settle-
ment agreement, no employee has been disciplined for violating
the no-solicitation/no-distribution rule contained in the July
2000 revision of the employee handbook, and that the rule has
not been enforced in any manner. When asked if the rule was
currently in effect, Green testified he didn’t know. He did ac-
knowledge that since December 10, 2001, two new employees
were hired and one of them was given a copy of the July 2000
handbook.
At the end of January 2002, the Union engaged in handbill-
ing at Respondent’s facility and erected a 20-foot tall inflatable
rat. According to Green, the handbillers stood outside the 15-
foot easement, “clearly” on company property. Despite the
encroachment, the police were not called and there was no in-
terference with the union’s activities.
IV. ANALYSIS
A. Applicable Principles
There is no allegation that Respondent committed unfair la-
bor practices after the approval of the second settlement agree-
ment. The initial inquiry is therefore limited to whether Re-
spondent complied with the second settlement agreement, and
only if Respondent is found to have breached that agreement
should there be a determination of whether Respondent’s pre-
settlement conduct violated the Act. Nudor Corp., 281 NLRB
927, 928 (1986). The issue of whether Respondent has com-
plied with the second settlement agreement must not be re-
solved by a mechanical application of rigid a priori rules, but
rather by the exercise of sound judgment based upon all the
circumstances of the case. Deister Concentrator Co., 253
NLRB 358, 359 (1980).
B. The Extent of Respondent’s Compliance with the
Second Settlement Agreement
Respondent complied with the notice-posting requirement of
the second settlement agreement, having posted the notice in
the employee breakroom from December 15, 2001, to May
2002. In that notice, Respondent committed not to engage in
the following eight types of conduct: (1) interrogating employ-
ees; (2) threatening employees with closure of the facility be-
cause of their union activities; (3) informing employees that
they could not talk to each other or that they would be kept
apart because of their union activities; (4) prohibiting employ-
ees from wearing union buttons, hats or other insignia; (5) in-
terfering with lawful picketing activities; (6) issuing discipli-
nary reports to employees because of their union activities; (7)
discharging or otherwise discriminating against employees
because of their union activities; and (8) violating the Act in
any like or related manner. The evidence establishes Respon-
dent has fully complied with all of these provisions. Specifi-
cally, with respect to item 4, Bickel has worn his union hat to
work on a daily basis without incident. With respect to item 5,
the credible and uncontradicted testimony of Green is that in
January 2002, the Union erected a large inflatable rat and hand-
billed outside the public easement, on company property. Re-
spondent did not call the police or interfere in any way with this
activity.
In the third paragraph of the notice, Respondent committed
not to promulgate, maintain or enforce any rule that prohibits
employees from discussing union-related subjects during work-
ing hours, and further committed not to discriminatorily pro-
hibit union discussions or the distribution of union literature in
work areas or public areas. Counsel for the General Counsel
does not claim that Respondent has violated the third paragraph
of the notice, and I therefore find Respondent has complied
with that provision.
C. Respondent’s Alleged Failure to Comply re:
Employee Handbook Rule
In the second paragraph of the notice, Respondent committed
not to promulgate, maintain, or enforce the no-solicitation/no-
distribution rule on page 34 of the employee handbook. It is
agreed that no employee has been disciplined as a result of the
rule. The General Counsel’s contention is that Respondent
breached the second settlement agreement by its failure to “re-
scind, rewrite, modify or ‘clean up’” the rule.
The only evidence to even suggest that the employee hand-
book rule has been promulgated or maintained since the ap-
proval of the settlement agreement is the fact that Bickel and
one of two newly hired employees were given copies of the
handbook. When Bickel was given the handbook he was also
given a written acknowledgement to sign that stated that the
July 2000 handbook represented policies in effect at the time of
handbook’s publication, and that the policies set forth in the
handbook were subject to change at any time. Five days after
Bickel signed the acknowledgement Respondent posted the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 840
Board notice stating the rule would no longer be given effect,
effectively rescinding the rule.
It certainly would have been the wiser course for Respondent
to cross out the provision on page 34 when it gave Bickel and
the new employee a copy of the handbook. Its failure to do so,
however, does not in my view constitute promulgation or main-
tenance of the rule in violation of the settlement agreement.
Contemporaneous with the distribution of the handbook, Re-
spondent communicated to employees that the policies con-
tained therein were current only as of July 2000 and subject to
change at any time. Moreover, from December 2001 to May
2002, the Board notice was posted advising employees the rule
was rescinded.
I disagree with the General Counsel that it was incumbent
upon Respondent to rewrite, modify or “clean up” the no-
solicitation/no-solicitation rule in the handbook. The settle-
ment agreement contained no such requirement. Had the Gen-
eral Counsel wanted Respondent to craft a new rule, he could
have incorporated that into the second settlement agreement.
The only requirement was for Respondent to cease giving effect
to the unlawful rule, not to promulgate a new rule.
D. Respondent’s Alleged Failure to Comply re:
Bickel’s Reinstatement
Respondent agreed in the second settlement agreement to
reinstate Bickel to his former position without prejudice, to
make him whole by the payment of $2000 to him, to rescind the
April 26, 2001 disciplinary notice, to expunge from his file any
reference to the disciplinary notice and to his two discharges,
and to notify him that the expungement had taken place. The
General Counsel contends that Respondent violated these terms
in three ways: first, Bickel was reinstated as a “new hire” and
was never given assurances that he was being fully reinstated to
his former job; second, he was not made whole by reason of the
fact that Respondent had withheld $223.60 in vacation money
from his last paycheck in June 2001; and third, Respondent
failed to notify him in writing of the expungement of records
from his file.

1. The new hire issue
Undermining the General Counsel’s first argument that
Bickel was treated as a new hire is Bickel’s own testimony that
he was returned to his position as a semitruckdriver, that he
performed his job in the same way, that his hours, rate of pay
and all other terms and conditions of employment were exactly
the same, and that he was accorded his original seniority date of
April 3, 2000. Bickel was asked to fill out updated information
forms, and was readvised of company policies. He was not,
however, asked to fill out an employment application, and he
testified he was never told he was a new hire. The General
Counsel did not introduce the letter sent by Green to Bickel
offering him reinstatement. That letter may or may not have
assured Bickel that he was being offered reinstatement to his
former position. The General Counsel bears the burden of
proof, and this letter would have been probative on this issue.
General Counsel points to the language in Stewart’s Decem-
ber 12, 2001 memo stating Bickel would be “treated the same
as any other new hire as far as vacation is concerned.” As dis-
cussed more fully below, the General Counsel does not allege
that Bickel was not accorded his full vacation benefits upon
reinstatement, and the evidence shows that after his reinstate-
ment, he accrued vacation hours at the proper rate for an em-
ployee in his second and third calendar years of employment.
Stewart’s memo notwithstanding, Bickel was not treated as a
new hire and he was reinstated to his former position under the
same terms and conditions of employment.
2. The vacation pay issue
General Counsel’s second argument, that by deducting
$223.60 from Bickel’s final paycheck Respondent failed to
make Bickel whole, is without merit for several reasons. First,
Bickel testified that he took 40 hours vacation in April 2001.
He was not asked if he had taken additional vacation hours in
2001, and Bickel’s 2001 payroll records were not introduced.
According to Respondent’s vacation policy, Bickel began ac-
cruing 3.08 vacation hours every 2 weeks beginning January 1,
2001, his second calendar year of employment. He, therefore,
had accrued less than 40 hours vacation as of the end of April,
the month in which he took the vacation. Since he could not
carry over vacation time from the previous year, he clearly took
vacation time that he had not yet accrued. Pursuant to Respon-
dent’s policy, Respondent deducted from Bickel’s final check
the sum equal to used, but unaccrued leave.7
The second reason why the General Counsel’s argument is
without merit is because the General Counsel entered into the
second settlement agreement agreeing that the payment of
$2000 to Bickel discharged Respondent’s make-whole obliga-
tion. That payment, less deductions, was made. The General
Counsel was aware, or should have been aware, when it entered
into the settlement agreement that a deduction of $223.60 had
been made from Bickel’s final paycheck, and I must conclude
that the General Counsel took this dollar amount into account
when it negotiated an 80 percent settlement with Respondent.
The General Counsel should now not be heard to say that he
made a mistake and that Respondent owes the discriminatee an
additional $223.60.
Finally, the appropriateness of the vacation hour deduction
was the subject of an unfair labor practice charge filed by the
Union that was dismissed, on the merits, by the Regional Direc-
tor and affirmed by the Office of Appeals. Both the Regional
Director and the Office of Appeals based their determination on
Respondent’s nondiscriminatory application of its policy re-
garding the deduction of monies paid to exiting employees for
used, but unearned leave from their final paycheck. Counsel
for the General Counsel stipulated at the hearing that the theory
underlying his argument in this case, that Respondent failed to
make Bickel whole, is the same theory that the General Counsel
found unmeritorious in the context of the ULP charge. I agree
7 Saturday, May 26, 2001, was the last payroll period that Bickel
worked prior to his termination. There were nine biweekly payroll
periods between January 1 and the end of April, the month in which
Bickel took his 40 hours vacation. Having accrued vacation time at the
rate of 3.08 hours every 2 weeks, the most Bickel could have accumu-
lated by the end of April was 27.7 hours. He may have had an even
lower balance, depending on when in the month of April he took the
vacation, and whether he had taken any vacation time prior to April.
NATIONS RENT, INC. 841
with the General Counsel’s previous determination and con-
clude Respondent did not violate the terms of the second set-
tlement agreement when it failed to reimburse Bickel for the
$223.60 deducted from his final paycheck.
3. The expungement issue
Green’s credible and uncontradicted testimony is that within
a week or two of Bickel’s reinstatement, he examined Bickel’s
file and removed all of the disciplinary notices contained in that
file. He also testified that he told Bickel that he had removed
everything from his file having to do with his union activity.
Bickel’s testimony denying that Green told him this presents
the only significant credibility issue in this case, and I resolve
that issue in favor of Green.
Although I found both witnesses to be generally believable, I
found Green more credible than Bickel. On the issue of his
vacation pay, Bickel insisted that the deduction from his pay-
check was improper. He admitted, however, that he did not
know how many vacation hours he had accrued, or whether he
had exceeded those hours when he took his April vacation.
When asked about Respondent’s policy about allowing em-
ployees to take unaccrued vacation time, Bickel claimed he was
confused. Bickel impressed me as an intelligent witness with
good recall. I do not think he was confused at all about his
vacation benefits, and I conclude he knew full well that he had
exceeded his accrued vacation hours when he took his vacation.
His insistence that the deduction from his final paycheck was
improper was therefore not credible. Green, on the other hand,
was credible and believable throughout his testimony. I there-
fore find, based on Green’s testimony, that Green removed all
disciplinary notices from Bickel’s file, and that he orally ad-
vised Bickel of this fact.
It is agreed that Respondent did not give Bickel written no-
tice that his file had been expunged or that the notices in the file
would not be used against him. I find this to be the only breach
of Respondent’s obligations under the second settlement
agreement. Although not to be lightly excused, Respondent did
in fact expunge his file and orally told Bickel that this had been
done. Moreover, in the notice that Respondent posted for 5
months, during which period of time Bickel was continuously
employed, Respondent committed to expunging Bickel’s file
and further committed that it would not use his previous disci-
pline or discharges against him. In view of Respondent’s com-
pliance with all of the other provisions of the agreement, its
failure to give Bickel written notice did not so undermine the
settlement agreement as to amount to noncompliance. I there-
fore find the agreement should be reinstated and the complaint
dismissed.
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. The Respondent did not fail to comply with the settlement
agreement approved on November 14, 2001.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The complaint is dismissed.

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.