Robert Orr/Sysco Food Services

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1183 (N.L.R.B. 2004)

ROBERT ORR/SYSCO FOOD SERVICES
343 NLRB No. 123
1183
Robert Orr/Sysco Food Services, LLC and Teamsters
Local Union, No. 480, affiliated with Interna-
tional Brotherhood of Teamsters and James D.
Garza. Cases 26–CA–20384, 26–CA–20460, 26–
CA–20622, 26–CA–20726, 26–CA–20746, and
26–CA–20752
December 16, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On May 9, 2003, Administrative Law Judge Jane Van-
deventer issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel 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,1 and conclusions2 as
modified below and to adopt the recommended Order as
modified.3
We adopt the judge’s finding that the Respondent
committed numerous violations of Section 8(a)(1), (3),
and (4) of the Act in the period before, during and after a
rerun representation campaign. Thus, the Respondent
interrogated employees about union activities;4 solicited
grievances and impliedly promised to remedy them; pro-

1 The Respondent has excepted to some of the judge’s credibility
findings. It is the Board’s established policy 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.
We also find no merit in the Respondent’s allegations of bias and
prejudice on the part of the judge. Thus, we perceive no evidence that
the judge prejudged the case and made prejudicial rulings, or demon-
strated bias against the Respondent in her analysis or discussion of the
evidence. Similarly, there is no basis for finding that bias and prejudice
exist merely because the judge resolved important factual conflicts in
favor of the General Counsel’s witnesses. NLRB v. Pittsburgh Steam-
ship Co., 337 U.S. 656, 659 (1949).
2 We correct the judge’s Conclusion of Law 1 to add “by equating
employees’ union support with disloyalty to the Respondent.”
3 We shall modify the judge’s recommended Order and notice to cor-
rect inadvertent omissions, and to conform with our decision in Indian
Hills Care Center, 321 NLRB 144 (1996).
4 Without necessarily agreeing with all the elements of Passavant
Memorial Hospital, 237 NLRB 138 (1978), Chairman Battista agrees
with the judge’s finding that the Respondent’s August 22, 2001 notice
to employees failed to cure the unlawful interrogation of the Respon-
dent’s Cash and Carry retail employees. Chairman Battista relies on
the fact that the notice did not mention the unlawful solicitation of
grievances and the implied promise to remedy them, violations that
occurred during the same conversation as the interrogation, which the
Respondent sought to cure.
hibited employees from talking among themselves in
retaliation for the Union’s winning the rerun election;5
changed employee break schedules; delayed an em-
ployee’s scheduled job change; threatened an employee
with layoff; requested employees to report back to it re-
garding other employees’ union sentiments; equated an
employee’s vote for the Union with disloyalty to the Re-
spondent; and more strictly enforced work rules follow-
ing the union election victory. All of this conduct was in
violation of Section 8(a)(1). We further agree with the
judge that the Respondent violated Section 8(a)(3) and
(1) of the Act by discharging employees Tommy Tho-
mas, James Garza, and Chris Shouse, and by issuing a
warning to and discharging employee James Utley.6 The
Respondent’s discharge of Shouse also violated Section
8(a)(4) and (1) of the Act.
In addition, we agree with the judge, for the reasons
she states and as further set forth below, that the Respon-
dent violated Section 8(a)(3) and (1) by discharging em-
ployees Ben Kelley and Greg Jaster because of their un-
ion activities. Contrary to our dissenting colleague, the
Respondent has not shown that it discharged Jaster and
Kelley because they engaged in workplace violence.
Facts
The Respondent operates a large wholesale food and
food service warehouse, as well as a retail store located
near the warehouse. On June 14, 2000, a representation
election was conducted among the Respondent’s ware-
house and retail store employees. The Union lost the
election and filed objections. In August 2001, the Board

5 The judge found that the Respondent prohibited its employees from
talking among themselves “about the third week in August,” i.e., prior
to the second election. However, the record is unclear as to whether the
prohibition came before or after the second election. In either case, we
agree with the judge that the prohibition on talking was unlawful as it
was clearly in response to the employees’ union support.
6 In cases like this one, involving 8(a)(3) violations that turn on the
employer’s motivation, we apply the analysis set forth in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983). Under that analysis, the General
Counsel must initially establish union or protected activity, knowledge,
animus and adverse action. Once the General Counsel makes this
initial showing, the burden of persuasion then shifts to the Respondent
to prove that the same action would have taken place even absent any
protected activity. Central Plumbing Specialties, 337 NLRB 973, 974
(2002). We agree with the judge that the General Counsel met his
burden of proof with respect to each of the discharges and that the
Respondent did not rebut the General Counsel’s evidence.
In adopting the judge’s conclusion that the Respondent violated Sec.
8(a)(3) by discharging employee James Garza, we do not rely on the
judge’s finding that Garza reported the accident to a supervisor. The
record does not contain such evidence. Instead, we rely on the judge’s
alternative finding that because of Garza’s union activities he was
treated more severely than other employees who failed to report acci-
dents and who were not discharged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1184
ordered a second election, which was held September 6,
2001. The Union won the second election and the Re-
spondent filed objections with the Board. The allega-
tions here occurred in the context of that second election,
and while the Respondent’s objections were pending
before the Board.
Kelley and Jaster were known union supporters. Kel-
ley was a member of the Union’s in-house organizing
committee and the Union had notified the Respondent in
writing of his role. Jaster became a union supporter after
the second election. In late 2001, Jaster openly discussed
his union support with other employees, including Night
Warehouse Manager Steve Owensby’s son, and regularly
took lunchbreaks with Kelley and other open union sup-
porters.
Kelley and Jaster were known to be good friends who
worked together as order selectors in the Respondent’s
freezer area. In May 2002, while operating the double
pallet jacks that they use to assemble orders, Kelley and
Jaster almost collided. They began to argue, each blam-
ing the other in a loud voice for the near accident. When
Jaster pointed his finger at Kelley, holding it close to
Kelley’s face, Kelley brushed it aside with his open
hand. A supervisor stepped between them, and the ar-
gument ended. Within a few hours, Kelley and Jaster
resumed their friendly ways, and ate lunch together. A
full 2 weeks later, the Respondent discharged both men,
asserting that they had violated its “zero tolerance” pol-
icy concerning workplace violence.
Analysis
Wright Line, supra, requires the General Counsel to
make an initial showing that protected conduct of union
supporters was a motivating factor in an employer’s de-
cision to take disciplinary action. Proof of such dis-
criminatory motivation can be based on direct evidence
of such union animus or can be inferred from circum-
stantial evidence based on the record as a whole. To
support an inference of unlawful motivation, the Board
looks to such factors as inconsistencies between the prof-
fered reasons for the discipline and other actions of the
employer, disparate treatment of certain employees com-
pared to other employees with similar work records or
offenses, deviations from past practice, and proximity in
time of the discipline to the union activity. Embassy
Vacation Resorts, 340 NLRB 846, 848 (2003).
Here, the Respondent’s union animus is evident
through its many violations of Section 8(a)(1), (3), and
(4) found to have occurred before and after the second
election campaign. The second election was conducted
in early September 2001. Just prior to and after that elec-
tion, the Respondent engaged in an antiunion campaign
described above. After the election, the Respondent
launched a related campaign of discharging union adher-
ents. Starting September 7, the day after that second
election, and continuing through late October and into
February and March 2002, the Respondent unlawfully
discharged four union activists other than Kelley and
Jaster. The final discharges—those of Kelley and
Jaster—occurred just 2 months later, in May 2002. Thus,
contrary to the Respondent’s contentions, the fact that
Kelley’s and Jaster’s discharges occurred some 8 months
after the election does not establish that those discharges
were not based on anti-union considerations.7 Cf. Globe
Security Systems, 301 NLRB 1219, 1224–1225 (1991)
(termination violated Act even though it occurred 6–7
months after employee petition opposing new pay sys-
tem).
Furthermore, it is clear that the Respondent was
unlawfully motivated in discharging the two. Contrary to
our colleague, we find that the Respondent has not
shown that it had a valid reason for the discharges. First,
we agree with the judge that the incident could not rea-
sonably have warranted discharge under the Respon-
dent’s own policies. The Respondent’s human resource
manager, Dorothy Merkle, testified that workplace vio-
lence consisted of conduct involving any touching.
However, this testimony conflicts with the very language
of the Respondent’s employee handbook which defines
workplace violence as “hostile physical contact.” Nei-
ther Jaster’s finger pointing nor Kelley’s brushing that
finger aside rises to the level of such “hostile physical
contact.” Merkle’s attempt to alter that standard to en-
compass Jaster’s and Kelley’s conduct is indicative of
the Respondent’s unlawful motivation. Further, the fact
that the Respondent allowed Jaster and Kelley to work
together in the warehouse for 2 additional weeks before
discharging them is inconsistent with a belief that their
conduct constituted hostile physical conduct within the
meaning of its handbook. See, e.g., Embassy Vacation
Resorts, supra at 849 (proffered reasons for discharge
inconsistent with action of letting discriminatee work on
three occasions with employee he had allegedly threat-
ened).8 Had the Respondent truly been worried about the
two employees’ capacity for violence it presumably
would have placed them on leave or suspension while
conducting an investigation.
Second, even were we to agree with our dissenting col-
league that the incident violated the Respondent’s “zero
tolerance” workplace violence policy, the record shows
that Jaster and Kelley were treated more severely than
other employees who engaged in more serious miscon-

7 Moreover, the Respondent’s objections to the second election were
still pending before the Board during this time period.
8 See 299 Lincoln Street, Inc., 292 NLRB 172, 202 (1988).
ROBERT ORR/SYSCO FOOD SERVICES 1185
duct. On two occasions, a supervisor had to step be-
tween Jimmy Kelly, an employee who had worn a “vote
no” T-shirt, and another employee, to break up heated
altercations. Twice, Kelly, who is 6’4” or 6’5” and
weighs 230–240 pounds, cursed and pounded his fist into
his other hand. Another time, Jimmy Kelly had to be
physically restrained by employee James Utley from
attacking employee Shawn Carruthers. Jimmy Kelly was
not discharged for any of these incidents, and was only
reprimanded for one of them. Finally, Ben Kelley testi-
fied that in 1997 an employee threatened him with a
shotgun that he had out in his truck. Kelley testified that
the employee was not disciplined even though a supervi-
sor was informed of the exchange. These incidents stand
in sharp contrast to the Respondent’s conduct toward
Kelley and Jaster.
We do not dispute our dissenting colleague’s observa-
tion that the Respondent has a legitimate concern about
workplace violence. It is the Board’s function, however,
to determine whether the Respondent’s actions were ac-
tually motivated by that concern. Under all these cir-
cumstances, we find that the Respondent has not estab-
lished that it would have discharged Jaster and Kelley
had they not supported the Union. Accordingly, we find
that their discharges violated Section 8(a)(3) and (1) of
the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Robert
Orr/Sysco Food Services, LLC, Nashville, Tennessee, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Interrogating employees regarding their union
sentiments and activities, interrogating employees about
the union activities and sentiments of other employees,
telling employees it had asked other employees about
their union sentiments, soliciting grievances and impli-
edly promising to remedy them, prohibiting employees
from talking because of the Union, changing employees’
break schedules because of the Union, delaying sched-
uled employee job changes because of the Union, threat-
ening employees with layoffs because of the Union, re-
questing employees to report back to it regarding the
union sentiments of other employees, more strictly en-
forcing its existing rules because of the Union, and
equating employee support for the Union with disloyalty
to the Respondent.”
2. Substitute the following for paragraph 2(b).
“(b) Make Tommy Thomas, Chris Shouse, James
Garza, James Utley, Greg Jaster, and Ben Kelley whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
CHAIRMAN BATTISTA, dissenting in part.
Contrary to my colleagues, I would not find that the
Respondent unlawfully discharged employees Greg
Jaster and Ben Kelley. They were discharged for violat-
ing the Respondent’s “zero tolerance” policy concerning
hostile physical contact. The decisive factor in the deci-
sion to discharge was that there was a physical touching
in the course of an argument between the two men.
Under the “zero tolerance” policy, the Respondent has
developed a bright line rule that any hostile physical con-
tact between employees results in automatic termination.
There has been no showing of any deviations from that
policy. The incident between Kelley and Jaster clearly
falls within the definition of the rule. By contrast, the
other incidents cited by my colleagues are distinguish-
able inasmuch as none of them involved physical con-
tact. It may well be that, subjectively speaking, some of
these other incidents (e.g., threat to use a shotgun) are
more severe than the physical touching here. However,
the essential point is that the Respondent has an objective
and specific rule, and the conduct of the two employees
was in breach of that rule.
My colleagues suggest that the touching here was not
hostile. I disagree. The two were arguing, Kelly put his
finger at Jasper’s face, and Kelly physically thrust it
aside. There was hostility between the two men, and the
physical touching was clearly in that context. This was
not a friendly gesture.
My colleagues argue that the delay of 2 weeks before
discharging the two men shows that the reason for the
discharge were unlawful. I disagree. A discharge is the
“capital punishment” of an employment relationship, and
an employer should not be condemned for taking the
time to consider the matter before imposing that punish-
ment. Concededly, as my colleagues suggest, the Re-
spondent could have suspended the employees pending a
decision on the matter. However, for the reasons set
forth above, the discharge would nonetheless have oc-
curred under the Respondent’s strict rule. The upshot
would have been that the two employees would have lost
additional pay. I would not penalize the Respondent for
allowing the two employees to work until a decision was
made.
Finally, the prevention of violence in the workplace is
a legitimate and serious concern, and an employer should
be free to establish what constitutes impermissible vio-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1186
lent behavior. The Board should not, as here, substitute
its judgment for that of the employer.
Accordingly, I would find that the discharges of Jaster
and Kelley did not violate Section 8(a)(3).
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 any 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 interrogate you about your union senti-
ments or activities or the union activities or sentiments of
other employees.
WE WILL NOT tell you that we have asked other em-
ployees about their union sentiments.
WE WILL NOT solicit grievances and impliedly promise
to remedy them.
WE WILL NOT prohibit you from talking because of the
Union.
WE WILL NOT change your break schedules because of
the Union.
WE WILL NOT delay scheduled employee job changes
because of the Union.
WE WILL NOT threaten you with layoffs because of the
Union.
WE WILL NOT request you to report back to us regard-
ing the union sentiments of other employees.
WE WILL NOT more strictly enforce our existing rules
because of the Union.
WE WILL NOT issue warnings to you because of your
union sympathies or activities.
WE WILL NOT equate your support for the Union with
disloyalty to us.
WE WILL NOT discharge you because of your union
sympathies or activities.
WE WILL NOT discharge you because of your testimony
in proceedings before the Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Tommy Thomas, Chris Shouse, James
Garza, James Utley, Greg Jaster, and Ben Kelley full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Tommy Thomas, Chris Shouse, James
Garza, James Utley, Greg Jaster, and Ben Kelley whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, less any net
interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warnings or discharges of the employees named in
the above paragraph, and WE WILL, within 3 days thereaf-
ter, notify them in writing that this has been done and
that the warnings or discharges will not be used against
them in any way.
ROBERT ORR/SYSCO FOOD SERVICES, LLC
Michael W. Jeannette, Esq. and Pedro Arguello, Esq., for the
General Counsel.
Clifford H. Nelson Jr., Esq. and Les A. Schneider, Esq., for the
Respondent.
James Stranch, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JANE VANDEVENTER, Administrative Law Judge. This is a
case involving allegations of 8(a)(1) conduct and allegations of
several unlawful discharges during and after a rerun election
campaign. It was tried on 7 days in August and September
2002, in Nashville, Tennessee. The complaint alleges Respon-
dent violated Section 8(a)(1) of the Act by interrogating em-
ployees regarding their union sentiments and activities, interro-
gating employees about the union activities and sentiments of
other employees, telling employees it had asked other employ-
ees about their union sentiments, soliciting grievances and im-
pliedly promising to remedy them, prohibiting employees from
talking because of the Union, changing employees’ break
schedules because of the Union, delaying scheduled employee
job changes because of the Union, threatening employees with
layoffs because of the Union, requesting employees to report
back to it regarding the union sentiments of other employees,
and, more strictly, enforcing its existing rules because of the
Union. The complaint also alleges Respondent violated Section
8(a)(3) of the Act by discharging six employees and by issuing
a warning to one of them.1 The Respondent filed an answer
denying the essential allegations in the complaint. After the

1 Several allegations in the complaint were withdrawn at the trial.
ROBERT ORR/SYSCO FOOD SERVICES 1187
conclusion of the hearing, the parties filed briefs, which I have
read.2
Based on the testimony of the witnesses, including particu-
larly my observation of their demeanor while testifying, the
documentary evidence, and the entire record, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of busi-
ness in Nashville, Tennessee, where it is engaged in the storage
and distribution of food and food service products. During a
representative 1-year period, Respondent sold and shipped from
its Nashville, Tennessee facility goods valued in excess of
$50,000 directly to points outside the State of Tennessee. Ac-
cordingly, I find, as Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The Charging Party, Teamsters Local Union No. 480, affili-
ated with International Brotherhood of Teamsters (the Union),
is a labor organization within the meaning of Section 2(5) of
the Act.
II. UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent operates a large wholesale food and food service
products warehouse and a retail store. It employs warehouse
employees who stock the shelves, assemble orders, and load
trucks. It also employs mechanics and other maintenance em-
ployees, as well as truckdrivers who deliver the orders to cus-
tomers.
On June 14, 2000, a representation election was conducted
among Respondent’s warehouse and cash and carry warehouse
employees in Case 26–RC–8160. In that election, the Union
failed to win a majority of the votes cast, but filed objections to
the conduct of the election. The Board ultimately held, in early
August 2001, that the election should be rerun. A second elec-
tion was held on September 6, 2001, and the Union received a
majority of the votes cast. Respondent filed objections to the
conduct of the election, and an objections hearing was held in
October 2001. On November 30, 2001, a hearing officer’s
report issued in which it was recommended to the Board that
the objections to the conduct of the election be overruled. Re-
spondent filed exceptions to the hearing officer’s report. Those
objections, at the time of the trial herein, were still pending
before the Board. After the hearing, the Board issued its Order,
Dattco, Inc.,3 and a third election was conducted on January 24,
2003.

2 On March 26, 2003, counsel for the General Counsel filed a motion
to consolidate this case with several additional allegations and with
objections to the third election held in the bargaining unit. This would
require reopening of the record herein. Respondent opposes the con-
solidation. I denied a similar motion at the trial in this matter. For the
reasons stated on the record on September 9, 2002, I deny the General
Counsel’s motion to consolidate.
3 338 NLRB 49 (2002).
2. Alleged violations of Section 8(a)(1)
(a) The Cash and Carry store
Respondent operates a retail outlet located a few miles from
its warehouse. In August 2001,4 employee Alva Clark had not
revealed her sentiments regarding the Union to management.
She testified that she was at the cash register in the Cash and
Carry store on a day in mid-August. Cash and Carry Store
Manager Willie Swafford, an admitted supervisor, telephoned
Clark and told her that he had conducted a poll about the Union
among the employees. He asked Clark what she thought about
it. He repeated, “Well, what do you think about the Union?”
and added, “Do you think we need one and how are you going
to vote?” Clark replied that she had not made up her mind.
Swafford then asked Clark if there were something he could do
or something that could be done to help her make up her mind.
Clark said no. Swafford did not testify.
Respondent was made aware that Swafford was questioning
employees at the Cash and Carry store, and sent Senior Vice
President Barr Ivey and Employee Relations Manager Karen
Catron to the store to talk with employees some days after
Swafford’s call to Clark. They spoke with Clark privately and
asked her if anyone had asked about her union sympathies.
Clark told Ivey and Catron about Swafford’s telephone call to
her. Ivey apologized and said that Swafford should not have
done that. The two managers told her not to feel intimidated
and that it was her decision how to vote.
Respondent also posted a notice to employees at the Cash
and Carry store on August 22 stating:
It has come to our attention that during the week of August
13th, Willie Swafford may have asked some of the employees
in the Cash and Carry department how they were going to
vote in the upcoming election. This conduct was not author-
ized by Robert Orr/SYSCO. Swafford was wrong to question
you about how you will vote. You have the right to make a
choice on whether or not you want a union, without being
questioned about your decision. I can assure you that this will
not happen again. Further, we at Robert Orr/SYSCO will not
interfere with the exercise of your Section 7 Rights guaran-
teed under the National Labor Relations Act.
The notice was signed by Nick Taras, Respondent’s president
and chief executive officer (CEO).
Clark testified without contradiction that employees at the
Cash and Carry store often talked together when there were no
customers present to be waited on, and that such conversations
had not been prohibited by Respondent. In about the third
week in August, Swafford instructed employees at the Cash and
Carry store not to discuss the Union. When he saw several
employees standing together talking, he told them to “get
busy,” and that to do so was “job security.”
According to Clark’s testimony, up until the September 6
election, employees at the Cash and Carry store took unsched-
uled breaks at moments when they were not busy. Their
breaks, whether taken as one break or taken as several shorter

4 All dates hereafter will be in 2001, unless specifically stated oth-
erwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1188
breaks, were to total no more than 15 minutes. There was no
evidence presented that this self-scheduling of breaks presented
any problems. After the election, Assistant Manager (admitted
supervisor) Jeremy Suffrage installed a timeclock at the store,
and posted a schedule for each employee’s breaktime. There
was no explanation given for the change from self-scheduling
to formally scheduled breaks. Neither Swafford nor Suffrage
testified at the trial, and thus Clark’s testimony was uncontra-
dicted.
Despite the fact that Clark’s testimony was uncontradicted,
Respondent argues that Clark’s testimony is not reliable be-
cause of bias, shown by her unfavorable opinion of Swafford’s
competence elicited on cross-examination. Whether or not this
witness believes the store manager to be competent at his job
has no bearing on her memory and truthfulness, both of which
impressed me as good. I fully credit the uncontradicted testi-
mony of this current employee witness.
(b) Allegations involving Nick Taras
According to the uncontradicted testimony of Tommy Tho-
mas, in August an order selector at Respondent’s warehouse, he
attended a company-called meeting in the breakroom near the
end of August, at which a supervisor spoke concerning his past
unfavorable experience with a union. Nick Taras, the president
and CEO of Respondent, also spoke at the meeting. During the
meeting, Thomas, who did not wear any union insignia during
the preelection campaign, had asked a question concerning
whether Respondent had laid-off employees in the past. After
the meeting, Taras approached Thomas as he was returning to
work and asked him what he thought of the meeting. Thomas
testified that he did not say much in response. Taras also asked
Thomas how he felt about the Company, whether he supported
the Company, and what did he want from the Company. Tho-
mas replied to the first two questions by saying that he showed
up and worked every day, and to the last question by saying
that he was taking it one day at a time. Taras did not address
this incident in his testimony.
Employee Tim Toler had worked about 5 years for Respon-
dent by the summer of 2001; he worked on the night shift. In
August, he bid on a day job in warehouse sanitation, was inter-
viewed, and was told by Day Sanitation Supervisor Bobby
Underwood that he would have the choice of which of two jobs
that were open he wanted, because he had the greatest seniority
of the successful applicants. Toler chose a job, and Underwood
instructed him that his job would begin on Monday, September
3. The next day, Night Warehouse Manager Steve Owensby
informed Toler that Taras had decided that no employee trans-
fers could occur for a week because of the union election on
September 6. Owensby told Toler that his move to the day-
shift job had been delayed until Monday, September 10. On
September 6, Toler was instructed to call Respondent about his
job transfer, and eventually learned that his transfer to the day
shift had been delayed indefinitely. Toler was ultimately trans-
ferred to a day-shift sanitation job in November.
Respondent agreed that Taras had decided to “put a hold” on
all employee transfers and promotions during the week of Sep-
tember 6, but gave no rationale for this decision, nor did Taras’
memorandum on the subject recite any reason. Despite the
hold, employee Charles Brooks Sr., the father of then Assistant
Night Warehouse Manager Charles Brooks did begin a day
shift sanitation job during the week of the rerun election.
About August 22, Respondent mailed to its employees T-
shirts bearing the legend, “Let me be Union Free,” along with a
letter from Taras urging them to vote no in the upcoming rerun
election. During the preceding week, several supervisors had
asked employees for their shirt sizes. Some of these conversa-
tions will be dealt with below. Some employees wore the com-
pany provided T-shirts to work in the 2 weeks before the elec-
tion.
(c) Allegations regarding Charles Brook Jr.
Tommy Thomas, an order selector on the night shift, testified
that he was approached in late August, a few weeks before the
election by Charles Brooks Jr., the assistant night warehouse
manager,5 and asked for his t-shirt size. Thomas told Brooks6
his size and asked why Brooks was asking. Brooks said that
Respondent was going to make some “support your company”
T-shirts. When Thomas laughed, Brooks asked why he was
laughing and added, “Do you support your company?” Thomas
replied by asking, “Does my company support me?” Brooks
continued that “we don’t need a union in here, all a union will
do is have you go on strike.” He went on to say that the em-
ployees won’t make any money if they go on strike, and that
they would be the first to be laid off.
James Garza, another employee, testified that about the same
time period, Brooks asked him for his shirt size. In response to
Garza’s question as to why Brooks was asking, Brooks merely
replied that Respondent was going to send employees T-shirts.
James Garza further testified that Brooks called him into the
supervisory office after his shift was over one night in mid- to
late August. No one else was present. Brooks and Garza had a
friendly relationship. Brooks asked Garza what he thought
about the Union. Garza told Brooks that he didn’t think Re-
spondent had a lot to worry about, that Respondent was sure to
win. Brooks nevertheless went on to tell Garza why Respon-
dent did not need a union, and to ask Garza to talk with other
Spanish-speaking employees and communicate these views to
them.
Shortly before the rerun election in September, Garza began
to wear prounion T-shirts to work. On two occasions in Octo-
ber, Brooks observed Garza in conversation with another em-
ployee, and on each occasion, told only Garza, but not the other
employee, to stop talking. On both occasions, the other em-
ployee was wearing a “Union Free” T-shirt. On both occa-
sions, Garza responded that it took two to have a conversation.
(d) Allegations concerning Todd White
Todd White was an admitted supervisor in the perishable
area of the warehouse. Garza testified that on about August 29,
White approached Garza just before his lunchbreak and asked
him about the views of employee Fernando Mejia concerning
the Union. Garza said that he didn’t know. White told Garza

5 Charles Brooks was later promoted to night warehouse manager.
6 All references hereafter to “Brooks” or “Charles Brooks” are in-
tended to refer to this admitted supervisor, and not to his father, Charles
Brooks Sr., who is an employee.
ROBERT ORR/SYSCO FOOD SERVICES 1189
that he believed Mejia was telling other employees to support
the Union, while telling Respondent that he intended to vote no.
White urged Garza to talk with Mejia and persuade him to vote
no and also to find out whether Mejia was indeed urging other
employees to vote no. Garza’s testimony concerning this inci-
dent was not contradicted.
(e) Allegations concerning Steve Owensby
One of the allegations involving Owensby was canvassed
above. The second allegation concerns a conversation with
Chris Shouse, a night-shift order selector. Shouse testified that
on September 3 he had a conversation with fellow employee
Shane Owensby, who is the son of then Night Shift Manager
Steve Owensby. The conversation concerned whether wages
would go down or stay the same should the employees select
the Union to represent them. Some time later during the same
shift, Steve Owensby approached Shouse and told him that in
collective-bargaining employees can lose money and benefits.
Shouse replied that it would depend on what happened in con-
tract negotiations. Owensby then told Shouse if he voted for
the Union, he didn’t work for Respondent, he worked for the
Union.
(f) Allegation concerning Tony Terrell
Tony Terrell was an admitted supervisor in Respondent’s
warehouse. Employee Chris Shouse testified that Terrell ap-
proached him and another employee on the night of September
5, the night before the rerun election. The two employees were
talking together. Terrell told them that there was “no talking,
no talking, let’s go.” Shouse testified that he protested that
there was no rule against employees talking, but Terrell did not
respond. Shouse was wearing a union sticker on this date.
Shouse testified without contradiction that ordinarily Respon-
dent maintained no rule against employees talking while they
worked.
(g) Allegation of more strictly enforcing rules
Many witnesses testified concerning this allegation. From
all the testimony, it appears that on the evening of September 9,
at the start of the night shift at 5 o’clock in the afternoon, Todd
White and Charles Brooks made an announcement to the as-
sembled employees at the end of their preshift stretching rou-
tine. Brooks stated that there was to be no gum-chewing or
food in the warehouse, and employees were not to leave their
work early for breaks and lunch. This was the first time em-
ployees had been at work since the election on September 6,
which had resulted in a majority vote for the Union.
It emerged from the ample evidence concerning this issue
that Respondent had long had a rule prohibiting gum and food
in the warehouse, and reiterated it from time to time, particu-
larly when there was to be an inspection of the sanitary condi-
tions at the warehouse. It also emerged from the testimony that
except for inspection times, this rule was only sporadically
enforced. The laxity was indeed so great that certain employ-
ees regularly carried ice cream through the warehouse in order
to take it to the breakroom, and that even some supervisors,
including Todd White, habitually chewed gum.
3. Allegations of 8(a)(3) violations
(a) Discharge of Tommy Thomas
Respondent maintained a productivity quota for its order se-
lectors. The system required employees to attain a certain level
of proficiency and speed within a few months of being hired,
and generally to maintain that level in order to remain em-
ployed. There is a somewhat complicated progressive discipli-
nary system for assessing an employee’s performance. The
computer which generates employee assignments keeps track of
the number of items “pulled” by the employee per hour. If an
employee fell below minimum productivity rates (MPR) for
one week, he was given a verbal warning (step one). Accord-
ing to the system, if he maintained MPR for the next 90 days,
he would revert to a clean slate. On the other hand, if the em-
ployee again fell below the MPR, he would be given a written
warning (step two). The next step is a final warning (step
three), and the fourth failure to achieve MPR within the 90-day
period is supposed to result in discharge (step four). If an em-
ployee works a full 90 days without falling below MPR at all,
he is “rolled back” by one step. If an employee works a full 6
months without falling below MPR at all, he once again starts
with a clean slate.
If an employee took time away from his order selecting, such
as in order to write up a report on a broken piece of equipment,
or if his supervisor talked to him for a portion of his worktime,
the supervisor was supposed to subtract that time from the em-
ployee’s worktime in the computer. Only supervisors could
perform this function.
Employee Tommy Thomas, a less-than-1-year employee,
had reached step three of the system on March 14. This warn-
ing contained the comment that Thomas would be discharged if
he failed to achieve MPR for any week before April 29, “90
days after his first disciplinary action.” On May 28, instead of
giving Thomas a final warning as the system would seem to
call for, Respondent gave Thomas a (third) warning, and added
the comment that Thomas would receive a final warning if he
missed MPR anytime in the next 90 days. On June 11, Thomas
was given a final warning, and the comment was added that
Thomas would be terminated if he missed achieving MPR at
any time in the next 90 days. Within a couple of weeks, on
June 28, Thomas received another “final warning” with the
comment added that he would be discharged if he failed to meet
MPR for any week prior to August 29. Beginning in late Au-
gust, Thomas began to show his support for the Union by
handbilling, wearing union T-shirts, and talking openly at work
about his support for the Union.
Even though Thomas had reached the last step of the MPR
system on three separate occasions in May and June, and
should have been discharged under Respondent’s system, he
was instead given lesser penalties on all three occasions. Re-
spondent’s witnesses had no explanation for this discrepancy.
Two weeks later, however, immediately after the election, Tho-
mas was discharged for failing to meet his MPR during the
week of the election. The election was held on Thursday, Sep-
tember 6, and the next regularly scheduled shift began on Sun-
day evening, September 9. Thompson was discharged on Sep-
tember 9.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1190
During the week of the election, Thomas, along with numer-
ous other employees, was below production standards. There
was testimony from several witnesses concerning conversations
during work time among employees during the week of the
election. Charles Brooks talked with Thomas for a lengthy
period on at least 1 day, causing an obstruction in one of the
cold area’s aisles, and holding up the work of a number of em-
ployees. Thomas and Utley testified that Charles Brooks told
Thomas, Utley, Greg Jaster, and several other employees that
he would credit them with time in the computer because of the
delay in their work which he had caused. In the record evi-
dence are production figures for the election week showing that
indeed some employees’ time was changed by handwritten
notations, crediting them with “time out” from work. Thus, a
highly active procompany employee, Joe Hatley, was appar-
ently credited with time by Brooks, as shown by the handwrit-
ten notation and change of his production numbers, bringing his
MPR above the failure rate. The same document shows was no
such change to Thomas’ time and production number, nor to
James Utley’s production for the week, as had been promised
by Brooks.
(b) Discharge of Chris Shouse
Chris Shouse was an order selector on the Cold Dock, which
comprises the cold and frozen food areas. In early September,
immediately after his conversation with Steve Owensby de-
scribed above, he began wearing a union sticker on the outside
of his work jacket, and thereafter continued to support the Un-
ion openly. On October 17, just 2 weeks before his discharge,
Shouse appeared and testified in an objections proceeding at the
National Labor Relations Board.
On the night of October 31, about 7 weeks after the election,
Shouse took his dinner break at about 9 p.m. Employees have
45 minutes for a dinner break, and are permitted to leave the
premises for dinner if they wish. Shouse’s parents, who live
near the Respondent’s premises, have traditionally had a Hal-
loween chili supper. Shouse and a friend went to his parents’
house for chili at the dinner break. While at the house, he
learned that his two daughters, aged 6 and 13 years old, had
gone out trick-or-treating, and had not returned. Shouse be-
came concerned, drove around the neighborhood looking for
them, and attempted to contact the girls’ mother, who he
thought might have picked them up. Shouse then began an all-
out search for his daughters. After failing to find them in the
neighborhood of his parents’ house, he drove to the part of
town where the girls’ mother lives. There was no answer at the
house. Finally, after several calls to friends, he located the
girls’ mother, who told him where the girls were, and permitted
him to pick them up. Shouse took them back to his house and
put them to bed. Shouse lives about 45 minutes from Respon-
dent’s facility.
Shouse testified that twice during the 3 or 4 hours during
which he searched for his daughters, he stopped at a pay phone,
at about 9 and 11:20 p.m., and called the supervisors’ office at
Respondent’s premises, but there was no answer. There was
conflicting testimony about the various telephones at Respon-
dent’s facility, but the facts emerged that although there is
voice mail on most of Respondent’s lines, there is no voice
mail on the telephone in the supervisors’ office. As supervisors
are frequently out in the warehouse during a shift, there is not
always someone present in the office to answer the telephone.
Shouse testified that this is the phone number he normally
called to try to reach supervisors. During the night shift, of
course, the main office telephones of Respondent are not an-
swered.
Not long after the end of the evening meal break, Night
Warehouse Manager Steve Owensby learned that Shouse had
not returned to work. He called Respondent’s president at
home at about 11 p.m. Taras told Owensby to discharge
Shouse.
Shouse eventually reached Owensby by telephone at about 2
a.m., and informed Owensby that he had had a family emer-
gency. Shouse explained that his children had been missing
after trick-or-treating. Owensby told him to go to the office on
the following day. Shouse was discharged on the following day
by Nick Taras. Shouse testified that he tried to tell Taras the
circumstances of his emergency, that his daughters had been
missing, but Taras interrupted Shouse’s attempted explanation
and told Shouse that he had personal time for that. Shouse
asked why another employee, McCallum, had gotten only a
“writeup” for similar conduct, but received no answer. The
document recording Shouse’s discharge had been prepared
prior to the meeting.
It was undisputed that on another occasion, employee
McCallum had neither called nor shown up for a scheduled
night shift until 2 a.m. Another employee, Daren Ogeer, testi-
fied without contradiction that on at least two occasions, he
failed to return to work after the meal break, that this was
known to his supervisor, and that he received no discipline for
his failure to return to work. His supervisor at the time, Nelson
Dawson, also testified, and recalled that on one of these occa-
sions he had told Ogeer that he needed to call his supervisor.
Dawson characterized this as a verbal warning.
(c) Discharge of James Garza
James Garza was an 8-year employee. He worked as an or-
der selector on nights. In 2000, he played a leading role in the
union campaign. In the second union campaign, he did not at
first support the Union openly. It was during that time that he
was asked to talk with other Spanish-speaking employees about
voting against the Union. About 2-1/2 weeks before the Sep-
tember 6 rerun election, Garza decided to support the Union
and began wearing a union button and T-shirt to work.
On February 12, 2002, Garza’s supervisor assigned him to
work which involved taking late-selected items to complete
orders that are already loaded on the truck trailers. To do this
work, Garza stood on a small motorized “tugger.” The tugger
Garza used had a light affixed to it, so that it was visible at
night in the truck yard. The light was suspended from an over-
head bar. Garza testified that the light bar was partly broken on
the left side (the bar is welded to the tugger on both sides). On
his way out to the yard in the course of his work, Garza pro-
ceeded slowly out the door before the overhead door was com-
pletely raised, and the top of the tugger’s light bar hit the bot-
tom of the door. Garza looked at the door, but was of the opin-
ion that the door, which had previously been hit on several
ROBERT ORR/SYSCO FOOD SERVICES 1191
occasions, showed no new damage as a result of his tugger’s hit
to it. However, the light bar, previously loose at the left weld,
was now completely detached there. He therefore removed it
from the tugger and took it to the appropriate repair shop. As
he did so, he encountered a supervisor named Roger “Snuffy”
Brown, and told him that the light bar had come off when he hit
the door on the way out of the warehouse. Brown did not tes-
tify at the hearing. Garza did not tell any other supervisor
about having hit the door.
When asked about the incident by his supervisor a day later,
Garza freely admitted that he had hit the door “just a little bit,”
but that he did not think there was any damage, and therefore
did not report it to his supervisor, although he had told Supervi-
sor Brown about the accident.
A day or two later, according to Respondent’s witnesses, it
was determined that Garza had hit the door, had not reported it,
and was terminated for not reporting an accident, and for hav-
ing a number of safety “incidents” on his past record. A rec-
ommendation to this effect had been made by Safety Director
Keith McIntyre without any conversation with Garza. Respon-
dent’s human resources manager, Merkle, testified that em-
ployees are always terminated for failing to report any accident
which involves damage to plant or equipment.
Several employees testified that it is fairly commonplace for
employees to hit the door which Garza hit, and that it always
has dents and scrapes visible on it because of this. Former
employee Mark Maraschiello testified that in March 1999, he
had hit a warehouse rack while driving a double pallet jack in
the freezer area. The collision was hard enough to bend the leg
of the rack up off the ground. Maraschiello did not report the
accident. Later that day, he was approached by his supervisor
about the damaged rack, and after first denying that he had hit
it, admitted that he had hit it, and was suspended for one night.
Another employee is called “Crash” as a nickname because of
his propensity to hit racks.
(d) Discharge of James Utley
James Utley had worked for 5 years for Respondent at the
time of his discharge in March 2002. During the second elec-
tion campaign, he had openly distributed union literature, and
had been seen by Charles Brooks doing so. Shortly before the
election, he was confronted by Brooks at work, who talked with
him about the Union and mocked him for supporting it. Utley
also customarily ate lunch with five or six other employees who
were well known to Respondent as union supporters.
Utley had occasionally failed to meet MPR in 2001. On
February 4, he received a verbal warning, but as 90 days
elapsed before his next warning, Utley received another verbal
warning on June 18. On July 10, he received a written warning
(step two). On September 9, he received a final warning (step
three) for failing to achieve production during the week of the
election. As set forth above in the factual summary concerning
employee Thomas, Utley had been told by Charles Brooks that
he would credit Utley with time for that week because of
Brooks’ delay of employees by blocking the aisle, but no credit
to Utley was shown on the printout for that week. After 3
months of steadily meeting production quotas, however, he
rolled back to a step-two status in December. During February
2002, Utley had knee problems and was absent on family and
medical leave through March 10, 2002. On that date, Utley
was abruptly discharged for failing to meet production for 2
weeks in February 2002. His supervisor handed him both a
final warning for the week of February 3–8, 2002 (dated Febru-
ary 14, 2002), and a discharge based on failure to achieve pro-
duction during February 17–22, 2002. In that week, immediately
before his knee surgery, Utley worked only 3 days. Normally,
warnings for the week of February 3–8, 2002, would have been
given on February 11, 2002. Respondent offered no credible
explanation for the delay from February 11 to March 10, 2002, in
giving Utley his final warning. The record reflects that Utley
worked at least 4 days during February after the warning is dated.
(e) Discharges of Greg Jaster and Ben Kelley
Greg Jaster and Ben Kelley, both order selectors in the freezer
area, had worked for Respondent for 18 months and nearly 8
years, respectively, by May 2002. Kelley was revealed to Re-
spondent by the Union as a member of its in-plant organizing
committee in August. Jaster had not been a union supporter until
after the rerun election, but after his change of heart in late 2001,
Jaster openly discussed his union support with other employees,
including Steve Owensby’s son Shane.
Greg Jaster and Ben Kelley, both riding the double pallet jacks
they used to assemble their orders, had a near collision in the
aisle. Jaster was talking to his supervisor over his shoulder and
not looking where he was going. Kelley came out of the door to
the freezer without sounding his horn. The two employees, who
are normally good friends, began to argue about the near colli-
sion, each citing the fault of the other. Both raised their voices.
Jaster pointed his finger at Kelley, holding it close to Kelley‘s
face. Kelley moved Jaster’s finger aside with a brushing motion
of his open hand. At about this time, their supervisor, Bob Suter,
came up to the two employees, stepped between them, and told
them to stop it. Within a few hours, Jaster and Keley had re-
newed their usual friendship.
Both Jaster and Kelley were called into Charles Brooks’ of-
fice, and interviewed about the incident. Two weeks later, both
employees were discharged for the incident.
Evidence was introduced of three or four incidents prior to the
election campaign in which employees engaged in screaming at
other employees, cursing, making threatening gestures such as
pounding a fist into the other hand, and running after another
employee apparently in order to attack him, all of these incidents
known to Respondent. None of the employees involved was
discharged, and only one was given a warning. One employee
(Jimmy Kelly) who was described by several employee witnesses
as particularly short-tempered and aggressive, was physically
restrained by James Utley from attacking another employee. A
supervisor witnessed this incident and informed Utley that Jimmy
Kelly had been “talked to” by the supervisor.
Merkle testified that Respondent always discharges employees
for “violence” in the workplace. This is defined, according to
Merkle, as conduct which includes any “touching.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1192
B. Discussion and Analysis
1. 8(a)(1) Allegations
(a) Cash and Carry Store allegations
Respondent argues that the only violation established at the
Cash and Carry store was the interrogation of Clark (and other
employees) concerning their union sentiments, and that this con-
duct was effectively remedied by Respondent’s August 22 notice.
Respondent cites Broyhill Co., 260 NLRB 1366, (1982), and
Passavant Memorial Area Hospital, 237 NLRB 138 (1978),
among other cases, in support of its position. General Counsel
argues that there was no effective remedy within the meaning of
these cases, since Respondent did not admit its interrogation, that
there were other unfair labor practices, both by Swafford and
others, which were not mentioned in the notice or which occurred
after the date of the notice. The General Counsel cites Ark Las
Vegas Restaurant Corp., 335 NLRB 1284, 1289 (2001), and
United Refrigerated Services, 325 NLRB 258, 259 (1998).
First, it is clear that Swafford’s questioning of Clark, an em-
ployee who had not previously, and did not then reveal her sen-
timents regarding the union, as to her feelings concerning the
union was coercive interrogation, and violated Section 8(a)(1) of
the Act. Rossmore House, 269 NLRB 1176 (1984), affd. 760
F.2d 1006 (9th Cir. 1985). Likewise, it is uncontradicted that
Swafford not only informed Clark that he was asking all the em-
ployees about their union sentiments, in itself a violation of Sec-
tion 8(a)(1) of the Act, but continued the conversation by asking
her what he could do to help her make up her mind. This last
question, the General Counsel argues, should be understood as a
solicitation of grievances, and implied promise to remedy them,
citing Yoshi’s Japanese Restaurant & Jazz House, 330 NLRB
1339, 1343 (2000). Respondent did not specifically address this
issue in its brief. I find, in agreement with the General Counsel,
that Swafford’s last question to Clark, especially in the context of
the rest of the conversation, is objectively understood as a solici-
tation of grievances, and an implied promise to remedy them.
Swafford’s question was far clearer than the one found to be a
violation of the Act in the cited case. 330 NLRB at 1343.
Clark also testified without contradiction that in late August
and early September, Swafford, who had formerly permitted
employees to talk together when no customers were present to be
waited on, and indeed had often stood and talked with them,
began to instruct employees not to talk, to disperse and to “get
busy.” He added that it was “job security.” The timing of the
sudden prohibition on employees’ conversations, occurring soon
after the announcement of the rerun election, and the addition of
the phrase, “job security,” are facts which connect the change in
rules with the union campaign, and tend to show that it was in-
tended, or intended to be understood, as a prohibition on talking
about the Union or the election campaign. I find that Swafford’s
sudden prohibition on employees’ talking together violated Sec-
tion 8(a)(1) of the Act.
Finally, I find that Respondent’s change in employee break
practice shortly after the September 6 election, from self-
regulated breaks to a formal break schedule, was done in retalia-
tion for employees’ support of the Union, and violated Section
8(a)(1) of the Act. Respondent gave no explanation for the
change in break schedule that would rebut this interpretation.
Finally, I find that Respondent’s August 22 notice attempting
to disavow Swafford’s interrogation of employees concerning
their union sentiments did not meet the requirements of Broyhill
and Passavant. Under the Board’s decisions in this area, a repu-
diation of unlawful conduct must meet certain requirements. A
respondent’s notice repudiating the unlawful conduct must be
timely, unambiguous, specific in identifying the unlawful con-
duct, and provide adequate notice to the affected employees.
Such a notice must also contain assurances that no interference
with employees’ Section 7 rights will occur in future, and that
undertaking must be fulfilled.
Here, publication to the Cash and Carry store employees was
inadequate. Respondent did identify one piece of unlawful con-
duct, Swafford’s interrogation of employees, but did not mention
any other conduct, such as his solicitation of grievances and im-
plied promise of remedy. Not only was the notice equivocal in
its “admission” of interrogation, stating that Swafford “may
have” asked employees questions, but the notice itself blames
Swafford, and stresses that he, not Respondent, was wrong. Fur-
thermore, while Respondent assured employees that their rights
would be observed by Respondent, it did engage in further unfair
labor practices, both at the Cash and Carry store location
(Swafford’s refusal to allow employees to talk together as they
had in the past, and Respondent’s change in employees’ break
schedules) as well as at the larger warehouse (see below), and
therefore, fails to meet the final requirement of these cases: that it
keep its promise not to engage in further unfair labor practices.
(b) Nick Taras
With regard to the first incident involving Taras, the question-
ing of employee Thomas, the record shows that Respondent’s
highest official questioned an employee about his “support” for
the Company immediately after an antiunion meeting. Thomas
did not wear items which indicated his support or lack of support
for the Union, and Taras’ questions about “support” for the
Company occurring when they did can fairly be construed as
intended to elicit the employee’s feelings about the union. There-
fore, I find that Taras’ questioning of Thomas was coercive inter-
rogation under Board law. Rossmore House, above.
Taras’ decision to delay employee transfers and promotions
was not specifically identified to be for the purpose of avoiding
the appearance of interference with the election, either in his
memorandum, nor in Owensby’s communication of the delay to
Toler. General Counsel argues that this omission means that this
gave the delay the appearance of a penalty for the election, and
that the delay violated Section 8(a)(1), as did Owensby’s an-
nouncement of the delay to Toler. I find, in agreement with the
General Counsel’s argument, that the decision to delay job
changes without stating any reason therefor, its announcement to
Toler by Owensby, and its application to Toler violated Section
8(a)(1) of the Act. A.M.F.M. of Summers County, 315 NLRB
727, 732 (1994), enfd. 89 F.3d 829 (4th Cir. 1996).
Regarding Respondent’s mailing of antiunion T-shirts to its
employees, the General Counsel does not allege that Taras’ letter
contains any unlawful material, but simply that provision of the
T-shirts with the expectation that some employees would wear
them to work constituted indirect interrogation of employees
concerning their sentiments regarding the Union. Except in the
ROBERT ORR/SYSCO FOOD SERVICES 1193
incidents detailed below, Respondent’s actual questioning of
employees was limited to asking for the employee’s shirt size.
The General Counsel cites A. O. Smith Automotive Products Co.,
315 NLRB 994 (1994), in support of its position. In my view, to
find Respondent’s conduct a violation under that case would be
an expansion of Board law. I find that Respondent merely dis-
tributed T-shirts to employees, without more. It did so by mail,
so that no supervisor would be present to assess the employee’s
reaction to the receipt of the T-shirt. The only way in which any
assessment could be made was by seeing who wore the T-shirts.
To hold this a violation of Section 8(a)(1) would be to prohibit
any company involved in a representation election from making
available to employees any buttons, flyers, hats, or other objects
which express sentiments calculated to announce an intention to
vote against the union or to persuade other employees to do so. I
decline to find Respondent’s distribution of antiunion T-shirts a
violation of Section 8(a)(1) and I will recommend that this allega-
tion be dismissed.
(c) Allegations regarding Charles Brooks
Brooks’ questioning of employees concerning their shirt size,
standing alone, or even coupled with the addition of the informa-
tion that Respondent would be sending them t-shirts does not,
standing alone, constitute coercive interrogation, as discussed in
the foregoing analysis. Therefore, Brooks’ inquiry of James
Garza about his shirt size does not violate Section 8(a)(1) of the
Act. However, Brooks’ questioning of Thomas went further,
asking him outright if he supported Respondent, coupled with
unfavorable comments regarding the Union and possible conse-
quences of union representation. These possible consequences
included the threat that striking employees would be the first
selected for layoff. I find Brooks’ questioning of Thomas was
coercive interrogation, and that both this questioning and the
threat of layoff of employees if they selected the Union violated
Section 8(a)(1) of the Act.
Brooks’ questioning of Garza about his opinion of the Union,
and his solicitation to transmit Respondent’s position to other
employees, taking place, as it did in a private office, included
certain coercive elements. Although the two were friendly, the
fact that Garza answered by talking about Respondent’s chances
in the election rather than his own sentiments shows that he was
reluctant to reveal them to Brooks. Taken as a whole, I find that
the circumstances of Brooks’ discussion with Garza stamped the
questioning as coercive, and I find that it violated Section 8(a)(1)
of the Act.
Likewise, Brooks’ postelection directions to Garza to stop
talking were patently one-sided, directed at Garza, but not at the
employee with whom he was talking. Given the fact that Garza
had demonstrated his support for the Union immediately before
the rerun election and the other employees involved were wear-
ing Respondent’s “Union Free” T-shirts, there is objective evi-
dence from which to conclude that Brooks’ admonitions were
directed at Garza because of his support for the Union, and were
disparate. Furthermore, the record evidence establishes that Re-
spondent had no rule against employees talking. I find that
Brooks’ oral admonitions to Garza to stop talking violated Sec-
tion 8(a)(1) of the Act.
(d) Allegations concerning Todd White
White’s questioning of Garza about the union views of another
employee, Mejia, was a bald request to Garza to ascertain the
union views of Mejia. The request to talk to Mejia and find out
where he really stood implicitly conveyed to Garza a request to
report back to White with any information he found out. Both
the question about Mejia’s union views, and the request to find
out Mejia’s views are blatant violations of Section 8(a)(1). While
questions about an employee’s own views concerning a union
may sometimes not be coercive, questions about the union views
of other employees are nearly always coercive. See, e.g., Sun-
dance Construction Management, 325 NLRB 1013 (1998); State
Equipment, Inc., 322 NLRB 631, 642–644 (1996).
(e) Allegations concerning Steve Owensby
The General Counsel argues that Owensby’s remark to the ef-
fect that if Shouse supported the Union, then he worked for the
Union, rather than Respondent, implied a threat that Shouse
would lose his job if he voted for the Union. I find that it does
not imply a loss of job, but is rather an accusation of disloyalty to
Respondent, that an employee who supports the Union has higher
loyalties to the Union than to Respondent. Whether this kind of
statement is violative of the Act is a different issue. I find that
Owensby’s statement to Shouse violates Section 8(a)(1) of the
Act because it equates support for the Union to disloyalty to Re-
spondent. See, e.g., HarperCollins Publishers, 317 NLRB 168,
180 (1995).
(f) Allegation concerning Tony Terrell
Tony Terrell’s September 5 admonition to Chris Shouse to
stop talking is subject to the same analysis as Brooks’ remarks to
James Garza. There was no rule against talking, and Shouse was
wearing a prounion button at the time. I find that Terrell’s warn-
ing to Shouse violated Section 8(a)(1) of the Act.
(g) Allegation of more strictly enforcing rules
Charles Brooks reiterated Respondent’s rules regarding food
and gum-chewing in the warehouse and leaving early for breaks
at the very first opportunity after employees had voted in favor of
the Union. While there is no dispute that these rules existed, it is
also clear that they were rarely reiterated and not strictly en-
forced, except when an inspection was taking place. The timing
of this emphasis on strict obedience to the rules gives the appear-
ance of being done in retaliation for the employees’ vote for the
Union, taking into consideration the backdrop of numerous unfair
labor practices outlined above. I find that the unusual reiteration
of these rules at the first opportunity after the representation elec-
tion gave employees the impression that Respondent intended to
be stricter because of their vote in favor of the Union, and there-
fore it violated Section 8(a)(1) of the Act.
2. The 8(a)(3) allegations
It is well established that in order to demonstrate a prima facie
case of unlawful discharge, the General Counsel must show that
an employee engaged in union or protected concerted activities,
that the employer knew of those activities, that the employer had
some animus against the activities in question, that the employer
discharged the employee, and that there was a connection be-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1194
tween the employer’s animus and its taking action against the
employee. In order successfully to rebut a prima facie case, an
employer must show that it would have taken the same action
against the employee in the absence of any protected activities on
the part of the employee.
(a) Discharge of Tommy Thomas
Thomas was an open and outspoken proponent of the Union
beginning in late August. He was subject to coercive conduct by
Nick Taras and later by Charles Brooks. Brooks’ conduct to-
wards Thomas shows that Respondent knew of his union sympa-
thies, and further was hostile towards those ideas. Thomas’ dis-
charge occurred on the first workday following the September 6
election. This, as well as the coercive conduct directed at Tho-
mas demonstrate a nexus between his union activities and the
discharge.
Respondent has advanced as its reason for discharging Tho-
mas its normal progressive discipline system for productivity. As
described above, the complex system results in discharge at the
fourth weekly productivity failure without an employee having
had any 90-day period free of failures. Thomas, however, had a
fourth productivity failure on May 28 (without having “rolled
back” any of his previous warnings by having a “clean” 90-day
period). Respondent did not discharge him on May 28, but only
warned him. It appears that this was putting Thomas back to step
two of the system. On June 11, Thomas had another low produc-
tion week, and was given a final warning. Little more than 2
weeks later, Thomas again had low production, but was inexpli-
cably given another “final” warning. It is obvious from this evi-
dence that Respondent did not consistently or strictly enforce its
productivity progressive discipline system. Before Thomas
showed that he was a union supporter, Respondent refrained
from discharging him three separate times. After Thomas
showed his support for the Union, he was discharged the next
time his productivity fell below requirements. Board law is re-
plete with cases in which a respondent’s previous laxity to pro-
ductivity failures shows that it was the employee’s support for the
Union which caused it suddenly to become a strict enforcer of its
productivity rules. See, e.g., Gravure Packaging, 321 NLRB
1296, 1304–06 (1996); Florida Title Co., 300 NLRB 739 (1990).
Furthermore, Respondent’s own documentary evidence, the
time records for the week of September 3–6, the week for which
Thomas was discharged, reveal a glaring disparity in the applica-
tion of supervisory adjustments. Three witnesses testified credi-
bly that Charles Brooks told Thomas, Utley, and several other
employees that he would adjust their times in the productivity
calculation, because they had been delayed by his own blocking
of the aisle while conversing with employees. The time records
reveal that while Joe Hatley, an outspoken opponent of the Un-
ion, had in fact had his time adjusted in order to bring his produc-
tivity up above the failure rate, no adjustment was made to the
time of Thomas or Utley. The issuance of production discipline
to Thomas was patently discriminatory. For this reason, too,
Respondent’s defense fails. See, e.g., Lampi, 327 NLRB 222
(1998); Employee Management Services, 324 NLRB 1051
(1997). I find that Thomas’ discharge violated Section 8(a)(3) of
the Act.
(b) Discharge of Chris Shouse
Chris Shouse demonstrated his support for the Union by wear-
ing a union button on his jacket each day at work during the elec-
tion week. There were two instances found above of coercive
conduct by Respondent directed specifically at Shouse. This
shows both knowledge and animus on the part of Respondent.
Shouse was discharged for one attendance incident. His dis-
charge was decided upon in the middle of the night, by the chief
officer of Respondent, and without any investigation of the cir-
cumstances of Shouse’s absence. The discharge took place
within about 7 weeks of the September 6 election. All these
factors show a nexus between the discharge and the pointed ani-
mus of Respondent towards Shouse’s union support. Likewise,
the timing of the discharge just 2 weeks after Shouse’s testimony
in a Board proceeding indicates a connection between Shouse’s
Board testimony and the discharge.
Respondent has advanced “job abandonment” as the reason for
Shouse’s discharge. Normally Respondent called a failure to
return to work after the lunchbreak leaving early without permis-
sion, as former supervisor Nelson Dawson did when discussing
employee Daren Ogeer’s identical behavior on another occasion.
The record shows that employee McCallum was given an oral
warning for failing to show up for his night shift at all, and not
calling in until 2 a.m. The record is uncontradicted that em-
ployee Daren Ogeer was given, at most, an oral warning for do-
ing exactly what Shouse did. Ogeer testified without contradic-
tion that he failed to return to work after the lunch break on two
occasions without notifying anyone. Still, he was only told to let
a supervisor know if he was not going to be back from lunch.
This glaring disparity in the treatment of the identical conduct
shows clearly that Respondent would most definitely not have
discharged Shouse in the absence of his union support. See, e.g.,
Hospital San Pablo, 327 NLRB 300 (1998); American Crane
Corp., 326 NLRB 1401, 1413 (1998); and Weather Shield of
Connecticut, 300 NLRB 93, 96 (1990). I find that Respondent’s
discharge of Shouse violated Section 8(a)(3) of the Act.
(c) Discharge of James Garza
James Garza was singled out by Respondent for questioning
not only about his own views regarding the Union, but was
treated as a source of information concerning, and perhaps influ-
ence over, the Union views of Spanish-speaking employees. The
specific coercive conduct directed at Garza is described above.
Clearly, Respondent knew that Garza supported the Union, and
just as clearly, Respondent was hostile to Garza’s support. Garza
was ostensibly discharged for conduct for which other employees
had been given only a warning or a 1-day suspension. This dis-
parity, in addition to the coercive conduct specifically directed at
him show a connection between the discharge and Respondent’s
hostility towards his union support.
According to Respondent, Garza was discharged for an acci-
dent in the warehouse, and for not reporting that accident. In
addition, Respondent attempted to shore up its discharge of
Garza by citing every safety violation in his 5-year employment
history as additional grounds for his discharge. This was clearly
“make-weight,” since Respondent did not terminate other em-
ployees with greater numbers of safety violations. Garza testified
without contradiction that he told a supervisor, Roger Smith,
ROBERT ORR/SYSCO FOOD SERVICES 1195
about the accident soon after the accident occurred. Respon-
dent’s position ignores this uncontroverted fact. In addition,
there is evidence of disparate treatment of Garza. Former em-
ployee Maraschiello had a similar minor accident to Garza’s, and
also did not report it until challenged about it by his supervisor.
Maraschiello engaged in arguably worse conduct than Garza,
since he initially denied having hit the rack. Garza, on the other
hand, freely admitted having hit the door. Respondent has not
shown that it “always” discharges employees who fail to report
an accident, as claimed. Instead, the evidence shows that at most,
Garza would have been given a one-day suspension for failing to
report hitting the door, had it not been for his Union support.
See, e.g., Ready Mix Concrete Co., 317 NLRB 1140 (1995);
Waste Management of Utah, 310 NLRB 883, 902 (1993). I find
that Respondent’s discharge of Garza violated Section 8(a)(3) of
the Act.
(d) Discharge of James Utley
James Utley was a union supporter who openly handbilled and
customarily ate lunch with other union supporters. That Respon-
dent knew of his union support is shown by Charles Brooks’
mocking conversation with him about the Union in early Sep-
tember. Respondent’s animus has been shown by the numerous
instances of coercive conduct found above. Utley was dis-
charged on the basis of productivity. In unprecedented fashion,
he was given two disciplinary actions, a final warning and a dis-
charge, at the same time. Also, this discharge would not have
been issued under the system but for a discriminatory warning
given him on September 9. As described above concerning
Thomas’ discharge, Brooks had promised to adjust several em-
ployees’ time because of the delay in their work which he occa-
sioned them by talking with them and by blocking the aisle so
that their work was held up. Brooks accordingly adjusted the
time of antiunion employee Hatley, but did not do so for Utley,
who he had held up for at least 40 minutes, according to Utley’s
uncontradicted testimony. Had Utley’s time for the election
week been adjusted in a non-discriminatory fashion, he would
not have received the September 9 warning. His productivity
disciplinary slate would have been wiped clean by more than 6
months of making his production rate every week. Therefore, the
two instances of failure to meet productivity in February 2002
should have resulted in only an oral discussion and a written
warning: steps one and two of the progressive system. Respon-
dent’s misapplication of its productivity discipline to Utley
shows that it acted on its hostility towards Utley’s union support
in order to discharge him. See cases cited above in section
B,2,(a). I find that Respondent’s discharge of Utley violated
Section 8(a)(3) of the Act.
(e) Discharges of Greg Jaster and Ben Kelley
Kelley was one of the Union’s in-plant organizing committee,
and Respondent had been notified in writing of his role. Jaster
had become openly supportive of the Union and talked with other
employees, including the son of Supervisor Steve Owensby. An
inference that Respondent knew of Jaster’s union support through
Owensby is justified, as is the inference that Respondent believed
Jaster supported the Union because of Jaster’s habit of eating
lunch with Kelley and other strong union supporters. It was well
known that Jaster and Kelley were good friends, and it was un-
doubtedly obvious that their friendship was quickly reestablished
after the shouting match they engaged in, as they resumed eating
lunch together almost immediately.
Respondent asserts that it discharged Jaster and Kelley in May
2002 because of workplace “violence” engaged in by the two
employees. Respondent’s witness Merkle’s testimony that any
touching during a confrontation between employees brings it
within the definition of “violence” is inconsistent with Respon-
dent’s employee handbook, as well as being inconsistent with
common sense. “Hostile physical contact” is the handbook’s
definition of workplace violence. Pointing a finger (as Jaster did)
does not come within this definition, nor does pushing aside the
pointing finger (as Kelley did). Respondent clearly exaggerated
the incident, attempting to make it into “workplace violence” by
labeling it as such. Respondent could not really have believed
that Jaster and Kelley were about to engage in any violence, since
it permitted them to work for an additional 2 weeks in its ware-
house. It did not, for example, place them on leave or suspen-
sion. A Respondent’s exaggeration of the seriousness of an inci-
dent is one factor which has been relied upon by the Board to
show that the incident is not the real reason for the discharge of
an employee. See, e.g., 299 Lincoln Street, Inc., 292 NLRB 172,
202 (1988). In that case, as in this one, the respondent not only
exaggerated the seriousness of the incident between two employ-
ees, it also acted inconsistently with a belief that any immediate
threat of harm existed, and it engaged in a pervasive antiunion
campaign. All these factors are present in the instant case. From
all the evidence, I am persuaded that Respondent would not have
discharged Jaster and Kelley for engaging in an argument, but for
their union support. I find that Respondent’s discharge of Jaster
and Kelley violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. By interrogating employees regarding their union senti-
ments and activities, by interrogating employees about the union
activities and sentiments of other employees, by telling employ-
ees it had asked other employees about their union sentiments, by
soliciting grievances and impliedly promising to remedy them,
by prohibiting employees from talking because of the Union, by
changing employees’ break schedules because of the Union, by
delaying scheduled employee job changes because of the Union,
by threatening employees with layoffs because of the Union, by
requesting employees to report back to it regarding the union
sentiments of other employees, and by more strictly enforcing its
existing rules because of the Union, Respondent has violated
Section 8(a)(1) of the Act.
2. By discharging Tommy Thomas, Chris Shouse, James
Garza, James Utley, Greg Jaster, and Ben Kelley, and issuing
warnings to James Utley, because of their union sympathies and
activities, Respondent has violated Section 8(a)(3) and (1) of the
Act.
3. By discharging Chris Shouse, because of his testimony in
Board proceedings, Respondent has violated Section 8(a)(4) of
the Act.
4. The violations set forth above are unfair labor practices af-
fecting commerce within the meaning of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1196
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I shall recommend that it be required to cease and
desist therefrom and to take certain affirmative action necessary
to effectuate the policies of the Act.
I shall also recommend that Respondent be ordered to remove
from the employment records of Tommy Thomas, Chris Shouse,
James Garza, James Utley, Greg Jaster, and Ben Kelley, any
notations relating to the unlawful actions taken against them and
to make them whole for any loss of earnings or benefits they may
have suffered due to the unlawful action taken against them, in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest as computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended7
ORDER
The Respondent, Robert Orr/Sysco Food Services, LLC,
Nashville, Tennessee, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees regarding their union sentiments
and activities, interrogating employees about the union activities
and sentiments of other employees, telling employees it had
asked other employees about their union sentiments, soliciting
grievances and impliedly promising to remedy them, prohibiting
employees from talking because of the Union, changing employ-
ees’ break schedules because of the Union, delaying scheduled
employee job changes because of the Union, threatening employ-
ees with layoffs because of the Union, requesting employees to
report back to it regarding the union sentiments of other employ-
ees, and more strictly enforcing its existing rules because of the
Union.
(b) Discharging employees and issuing warnings to employ-
ees, because of their union sympathies and activities or because
of their testimony in Board proceedings.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Tommy
Thomas, Chris Shouse, James Garza, James Utley, Greg Jaster,
and Ben Kelley full reinstatement to their former jobs or, if those

7 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.
jobs no longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Tommy Thomas, Chris Shouse, James Utley, Greg
Jaster, and Ben Kelley whole for any loss of earnings and other
benefits suffered as a result of the discrimination against them, in
the manner set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove from its
files any reference to the unlawful warnings and discharges of
Tommy Thomas, Chris Shouse, James Garza, James Utley, Greg
Jaster, and Ben Kelley, and within 3 days thereafter notify the
employees in writing that this has been done and that the warn-
ings and discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its
Nashville, Tennessee locations copies of the attached notice
marked “Appendix8.” Copies of the notice, on forms provided by
the Regional Director for Region 26, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out of busi-
ness 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 em-
ployed by the Respondent at any time since August 2001.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

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.”