SHAMROCK CARTAGE, INC.

National Labor Relations Board - Administrative Judge Opinions

Dec 6, 2018

09-CA-219396 (N.L.R.B. Dec. 6, 2018)

JD–78–18
Columbus, OH
STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SHAMROCK CARTAGE, INC.
and Case 09–CA–219396
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL UNION NO. 413
Joseph F. Tansino, Esq.
for the General Counsel.
Karen Rose, Esq.
for the Respondent.
Clement L. Tsao, Esq.
for the Charging Party
DECISION
I. INTRODUCTION1
ANDREW S. GOLLIN, Administrative Law Judge. This case was tried on November 5-6,
2018, in Cincinnati, Ohio. The amended complaint alleges that between April 9-13, 2018
Shamrock Cartage, Inc. (Respondent) threatened, suspended, and later discharged Shane
Smith, in violation of Sections 8(a)(1), (3), (4), and (5) of the National Labor Relations Act. This
was the second time in eight months that Respondent discharged Smith. The first time
occurred in August 2017, immediately after Respondent learned Smith was the lead employee-
organizer of a campaign by the International Brotherhood of Teamsters, Local Union No. 413
(Union) to represent Respondent’s drivers/yard spotters working at two distribution centers near
Columbus, Ohio. The Union filed unfair labor practice charges and post-election objections, and,
in November 2017, the parties settled those allegations. As part of the settlement, Respondent
was required to reinstate Smith with backpay and recognize and bargain with the Union.
Following his reinstatement, the Union appointed Smith to be the steward and the only
employee-member of the Union’s bargaining committee. During an April 5, 2018 bargaining
session, Respondent proposed a memorandum of understanding regarding the handling of
discipline until the parties reached an overall collective-bargaining agreement. The Union
rejected the proposal and it was withdrawn. The General Counsel alleges that four days later,
on April 9, 2018, Smith’s supervisor, Brian Williamson, allegedly threatened Smith at the jobsite

1 Abbreviations in this decision are as follows: “Tr.” for transcript; “Jt. Exh.” for Joint Exhibit; “GC Exh.” for
General Counsel’s Exhibit; “R. Exh.” for Respondent’s Exhibit; “GC Br.” for General Counsel’s brief; and
“R. Br.” for Respondent’s brief.
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2
with the more onerous working condition of working with "bad workers" because the Union
rejected Respondent's disciplinary proposal, in violation of Section 8(a)(1) of the Act
Later that same day, Smith had issues with the equipment in his truck used to direct his
work. He requested and received permission to call the vendor’s technical support for
assistance. Smith initially asked the vendor about the issues with his truck, but later also asked 5
about another truck that had been out-of-service for several months because of system issues.
The vendor informed Smith it was aware of the issue with the other truck and was waiting to
hear back about who was going take responsibility for purchasing a replacement unit for that
truck. Smith suggested the vendor send an email to Respondent and the warehouse contractor
to verify that the vendor had the correct contact information for the entity responsible for making 10
that purchasing decision. Following the call, the vendor sent an email to that entity, the
warehouse contractor, and Respondent mentioning that Smith had inquired about the unit,
along with another copy of purchase order to replace the unit. After receiving the email,
Respondent suspended Smith pending termination for contacting the vendor and inquiring about
the unit in the other truck. There is no dispute Respondent did not notify the Union prior to 15
suspending Smith.
Respondent left a message informing the Union about the suspension. A few days later,
Respondent and the Union met to discuss the matter. Following their discussion, on April 13,
2018, Respondent discharged Smith.
The General Counsel alleges Respondent suspended and discharged Smith because he 20
engaged in union activities and filed charges or gave testimony under the Act, in violation of
Sections 8(a)(1), (3), and (4) of the Act. The General Counsel also alleges Respondent violated
Section 8(a)(5) of the Act when it failed to bargain before making its discretionary decision to
suspend Smith. Respondent denies each of the alleged violations. For the reasons stated
below, I find Respondent violated Sections 8(a)(4), (3), and (1) when it suspended and 25
discharged Smith, and violated Section 8(a)(5) when it failed to bargain before suspending
Smith. However, I find the evidence does not establish that Williamson threatened Smith with
more onerous working conditions because the Union rejected its proposed disciplinary policy,
and I recommend that allegation be dismissed.
30
II. STATEMENT OF THE CASE
On May 8, 2018, the Union filed an unfair labor practice charge against Respondent in
this case. The Union amended the charge on June 12, and again on June 20, 2018. On July
19, 2018, the Regional Director for Region 9 of the National Labor Relations Board (Board), on 35
behalf of the General Counsel, issued a complaint against Respondent over the allegations in
the charge. On September 3, Respondent filed its answer to the complaint. On September 12,
2018, the Regional Director issued an amended complaint. On September 25, Respondent filed
its answer to the amended complaint.
At the hearing, all parties were afforded the right to call, examine, and cross-examine 40
witnesses, present any relevant documentary evidence, and argue their respective legal
positions orally. Respondent and the General Counsel filed posthearing briefs, which I have
carefully considered. Accordingly, based upon the entire record, including the posthearing
briefs and my observations of the credibility of the witnesses, I make the following findings of
fact, conclusions of law, and recommendations:45
JD–78–18
3
III. FINDINGS OF FACT2
A. Jurisdiction and Labor Organization
Respondent admits it is a corporation with an office and place of business in Rockdale,
Illinois that is engaged in truck spotting and hostler services. During the 12-month period ending 5
June 30, 2018, Respondent admits it performed these services valued in excess of $50,000 in
states other than the State of Illinois. Respondent admits, and I find, that it has been an
employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.
Respondent further admits that the Union is a labor organization within the meaning of Section
2(5) of the Act.3 Based on the foregoing, I find this dispute affects commerce and the Board has 10
jurisdiction, pursuant to Section 10(a) of the Act.
B. Background
1. Operations and Organizational Hierarchy
Respondent is owned by Dan O’Brien and Matt Harper. Matt’s brother, Michael Harper, 15
is Respondent’s general manager. Jason Caccamo was Respondent’s site supervisor from
April 2017 through March 30, 2018. After Caccamo quit, Respondent promoted Brian
Williamson to replace him. Michael Holmes is Respondent’s labor relations specialist.
Respondent provides truck spotting and hostler services for Kraft Heinz Foods Company 20
(“Kraft”) at its distribution center in Groveport, Ohio, and for Pepsi Company (“Pepsi”) at its
distribution center in Obetz, Ohio. Both are near Columbus, Ohio. These centers are large
warehouses with multiple doors where products are received and shipped using refrigeration
trucks and tractor trailers. The products come in from other warehouses or production facilities
and then sent out to local grocery stores. Kraft contracts with DHL to manage the day-to-day 25
operations inside its Groveport distribution center. Pepsi contracts with Ryder to manage the
day-to-day operations inside its Obetz distribution center.
Respondent employs drivers/yard spotters at both locations. It operates two 12-hour
shifts: the first shift is from 7 a.m. to 7 p.m., and the second shift is from 7 p.m. to 7 a.m. There 30
are seven drivers at the Kraft/DHL distribution center (four first shift and three second shift) and,
depending on the season, there are two drivers at the Pepsi/Ryder distribution center (one first
shift and one second shift). The site supervisor covers both locations.
Respondent’s drivers/yard spotters manage and move the trailers to and from the 35
warehouse doors and around the surrounding yard using semi-tractor “yard” trucks. PINC
provides logistics equipment and software for the trucks at the Kraft/DHL distribution center.
The drivers/yard spotters rely on the tracking system for where to pick up, move, and drop off
trailers within the warehouse yard. The tracking system is run through the PINC terminal set up
in the cab of each yard truck. The PINC equipment is the property of Kraft, not Respondent. 40

2 Although I have included citations to the record to highlight particular testimony or exhibits, my findings
and conclusions are not based solely on those specific citations, but rather on my review and
consideration of the entire record. The findings of fact are a compilation of credible testimony and other
evidence, as well as logical inferences drawn therefrom. To the extent testimony contradicts with the
findings herein, such testimony has been discredited, either as having been in conflict with credited
testimony or other evidence, or because it was incredible and unworthy of belief.
3 Respondent amended its answer to admit the Union’s Section 2(5) labor organization status. (Tr. 18).
JD–78–18
4
Drivers/yard spotters also can download the PINC app onto their personal smartphone
to access the system. Respondent does not require drivers/yard spotters to have or use their
personal smartphones for this purpose.
2. Organizing Campaign, Prior Charges, and Settlement Agreement5
Shane Smith began working for Respondent in April 2017, as a first-shift driver/yard
spotter at the Kraft/DHL distribution center. In around May 2017, Smith contacted the Union
about organizing Respondent’s employees. Thereafter, Smith began speaking with employees
and circulating authorization cards. On August 7, 2017, the Union filed a petition in Case 09-10
RC-203855 seeking to represent Respondent’s yard spotter/hostler employees. (Jt. Exh. 1). The
following day Respondent discharged Smith for allegedly failing to properly set the thermostat
on one of the refrigeration trucks in the yard. On August 10, 2017, the Union filed an unfair
labor practice charge in Case 09-CA-204232, alleging, among others, that Respondent
discharged Smith because of his union activities. (Jt. Exh. 3). On August 15, 2017, the 15
Regional Director approved a stipulated election agreement providing for a mail-ballot election.
According to the Agreement, eligible voters could cast their ballots from August 25 through
September 8, 2017. (Jt. Exh. 2). On August 25, 2017, the Union filed another unfair labor
practice charge in Case 09-CA-205156, alleging that Respondent had granted certain benefits
and made payments in an attempt to discourage employees from voting for the Union. (Jt. Exh. 20
5). On September 11, the votes were counted, and the Union lost.
The Union filed post-election objections and new and amended unfair labor practice
charges (in Cases 09-CA-204232 and 09-CA-207419), alleging Respondent engaged in a
pattern of unlawful conduct to undermine support for the Union. (Jt. Exhs. 4 and 6). On 25
October 13, 2017, the Regional Director issued a complaint against Respondent in Case 09-CA-
204232. (Jt. Exh. 7). On October 25, 2017, Respondent filed its answer denying the alleged
violations. (Jt. Exh. 8). On November 8, 2017, Respondent, through Dan O’Brien, entered into
an informal settlement agreement to resolve the objections and all the unfair labor practice
charges. The Union, through its counsel, executed the informal settlement agreement on 30
November 9, 2017. The Regional Director approved the bilateral settlement on November 16,
2017. The agreement, which contained a non-admissions clause, required Respondent to
reinstate Smith with backpay, recognize and bargain with the Union as the representative of the
petitioned-for unit,4 and have a member of management read the notice to the employees
addressing the alleged violations.5 (Jt. Exh. 9).35

4 As a result of this settlement, Respondent has recognized the Union as the Section 9(a) representative
of the following unit of its employees:
All full-time and regular part-time yard spotter/hostler employees employed by [Respondent] at
the DHL facility located at 2842 Spiegel Drive, Groveport, Ohio and at the Ryder Logistics
facility located at 3880 Groveport Road, Obetz, Ohio, excluding all office clerical employees,
all professional employees, guards and supervisors as defined in the Act.
There is no dispute this unit is an appropriate unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
5 Based on representations made by Counsel for General Counsel, there is no contention before me that
this settlement agreement should be set aside, or that I make any findings or conclusions regarding the
allegations addressed therein. (Tr. 43). As such, my findings and conclusions are limited to the
allegations in the amended complaint in the present case, but I have considered the evidence from these
prior cases in deciding the present case.
JD–78–18
5
3. Pre and Post Settlement Conduct Relating to Smith
Respondent’s former site supervisor Jason Caccamo testified at length about
Respondent’s response to the union organizing campaign. According to Caccamo, after
Respondent’s owners, Dan O'Brien and Matt Harper, found out employees had signed union 5
authorization cards, they were “extremely angry” and felt that the employees had stabbed them
in the back by going through this union organizing process and they wanted to make sure that
the Union would not take hold. (Tr. 130-131). They also were concerned the Union could
spread to all of their locations across the country, as well as organize the employees working
inside the Kraft/DHL and Pepsi/Ryder distribution centers. (Tr. 135-136). O’Brien and Harper 10
instructed Caccamo to find out who was in charge of the organizing effort, why they were
organizing, and how much support there was for the Union among the employees. Caccamo
subsequently learned from then-driver/yard spotter Brian Williamson that Smith and another
employee (Trevor Hamilton) were the two lead employee organizers, and that Smith was the
main organizer. According to Williamson, Smith had pulled employees into small groups, along 15
with Hamilton, and talked them into signing authorization cards. Caccamo later relayed this
information to O’Brien and Harper, and they told Caccamo to terminate Smith. (Tr. 128-130).
About a week before Respondent learned of the organizing effort, Caccamo issued
Smith a written warning for failing to properly maintain the temperatures inside one of the20
refrigeration trailers properly. (Tr. 130-132) (G.C. Exhs. 3 and 4). Drivers/yard spotters are
instructed to override the door sensors on these refrigeration trailers to ensure that the cooling
unit does not shut off when the trailer doors are opened. On July 25, 2017, Caccamo noticed
that Smith had failed to override the door sensors on one of the refrigeration trailers at issue.
Smith was again instructed on how to override the sensors, and, on July 31, 2017, Smith was 25
verbally informed by the warehouse manager to make sure to override the sensors for those
trailers. The warning states that Smith thereafter parked a refrigeration trailer at the wrong door
and again failed to override the door sensors, and any further errors or refusals to follow
procedure will result in corrective action, including termination. Caccamo issued this to Smith
on August 1, 2017.30
Immediately after learning of Smith’s involvement in the union organizing effort, O’Brien
and Harper told Caccamo to convert the warning Caccamo had issued to Smith into a
termination. On August 8, 2017, Caccamo met and informed Smith that he was being
discharged for the failing override the sensors on a refrigeration trailer. (G.C Exh. 5).35
That same day, the owners told Caccamo to hold an employee meeting and explain that
Respondent had a zero-tolerance policy for incorrectly setting the temperatures on refrigeration
trailers. The owners told Caccamo this was to provide Respondent with cover if Smith attempted
to challenge his termination. (Tr. 140). Caccamo held the employee meeting as instructed, and 40
he informed all the employees about this zero-tolerance policy. He also said that the owners
were aware of the organizing effort, and that if the employees continued to move forward with
organizing, the owners would terminate their business at those sites. (Tr. 139-140).6

6 Following Smith’s termination, the owners informed Caccamo to continue monitoring the employees and
gauge their support for the Union. They also discussed Travis Hamilton, the other employee organizer,
and decided to move Hamilton from second shift to first shift so Caccamo could keep an eye on him. (Tr.
141-143) (G.C. Exh. 6). Caccamo spoke with Hamilton. In this conversation, Caccamo stated
Respondent was “cutting the head off the snake of the union organizing” effort and warned Hamilton “to
keep [himself] in check and not give any reasons to put a bigger target on his back.” (Tr. 106; 143).
JD–78–18
6
O’Brien and Harper also told Caccamo to continue talking with the staff to find out their
opinions about the Union, and they asked on a daily basis for a head count of who was a "yes"
vote and who was a "no" vote. They instructed Caccamo to threaten that if they vote "yes" and
the Union came in, tow trucks would come to the sites to pick the yard trucks up and the
company would pull out of Ohio. (Tr. 146).7 It is unclear from the record if Caccamo relayed 5
this threat to employees, as instructed.
Caccamo separately told employees they should take photographs of their marked mail
ballots, keep it, and then send the photos to him. (Tr. 173; 268).
10
As stated, the Union eventually lost the election and filed objections and new and
amended unfair labor practice charges.
4. Respondent’s Unsuccessful Efforts to Block Smith’s Reinstatement
15
Following Smith’s discharge, Respondent’s owners were concerned about the prospects
of him being reinstated. O’Brien and Harper told Caccamo that if the Union was successful in
getting Smith reinstated he would make sure that the Union did, indeed, go forward, and he
would spread the Union activity throughout the Kraft/DHL and Pepsi/Ryder warehouse facilities.
To avoid this, the three had conversations about how they could keep Smith from being able to 20
come back to work. (Tr. 147-148).
One idea to they came up with was to get DHL to state that it refused to allow Smith
back on its property because he had previously failed to override the door sensors. (Tr. 152).
Caccamo contacted DHL’s managers and asked for an email explaining what Smith did wrong 25
and that they did not want him back on the site. On October 1, 2017, DHL Manager Ron
Rhodes prepared and sent the requested email, stating:
To whom it concerns,
30
All drivers at this facility have been shown how to override the door sensor for
Prime trailers. When the doors are left open the refrigerated unit will not run
which has caused some loaded [sic.] to be rejected. We now ask that Shamrock
override [sic.] these trailers so they are pre cooled for our shipment’s [sic.]. If it is
an older Prime that will not override the driver is to contact the Tasker and find 35
out if the trailer doors should be left open or closed. Any driver refusing to follow
this request will not be permitted to work at our site. For any questions please
contact any form of leadership or myself.
(G.C. Exh. 7).40
Caccamo forwarded the email to Respondent’s owners. O’Brien later advised Caccamo
that Rhodes’ email was not strongly worded enough, and they needed a more specific letter.
O’Brien told Caccamo he would talk with legal counsel and find out what specific language was
needed to keep Smith from being reinstated. On October 9, 2017, O’Brien texted Caccamo with 45

7 Prior to the election, O’Brien visited the two Columbus sites and met individually with employees in his
truck. He talked to them, and gave them each a $100 bill for “being a good worker” or “doing a good job.”
(Tr. 111-112, 268). One employee was absent and Caccamo was tasked with going to the Pepsi/Ryder
site where that employee work to give him the $100, and to tell him “this is a bonus for doing a good job.
It has nothing to do with the [U]nion, but by the way, we would really appreciate a ‘no’ vote.” (Tr. 147).
JD–78–18
7
prepared language Respondent wanted Rhodes to use. (Tr. 153-156)(G.C. Exh. 8). Caccamo
showed Rhodes the language, and Rhodes copied it onto DHL letterhead and sent it to
Respondent. The letter states:
To Whom It May Concern: 5
It is come to our attention that a Mr. Shane Smith represents a dangerous liability
to not only the products we ship but more importantly to public safety. When
certain products are not stored in the correct manner it is incredibly dangerous to
ship the products. Mr. Smith improperly utilized equipment at the DHL site in [a]10
way that could have caused financial lose [sic.] to his employer and this facility,
or caused negative health affects [sic.] to the public. It has become clear that he
represents an unacceptable danger to both the product shipped, and potentially,
to public health.
15
Mr. Smith was taught and warned by both his own direct employer, and
employees of the DHL facility on the proper use and handling of the equipment
utilized for his employment. However, Mr. Smith remained an unacceptable
danger with his continued misuse of the equipment. For the foregoing reason, we
will not tolerate Mr. Smith to work on our site. He poses a danger to equipment, 20
and potentially to public health.
(G.C. Exh. 9).8
Another idea Respondent’s owners and Caccamo came up with to keep Smith from 25
coming back was for driver/yard spotter Lisa Clarkson to go to the police and file a complaint
against Smith regarding a confrontation between them on the day of Smith’s discharge. (Tr.
148-149). According to Clarkson, on August 8, Smith jumped up on the side of her truck and
told her he had gotten fired. She told Smith she didn't know what to tell him; she was not the
boss. Smith blamed Clarkson and called her a “fucking bitch” and a “fucking cunt” and said 30
whenever the Union got him his job back, he would be back and he would make sure that she
got “ripped out of her truck.” (Tr. 255-257). Clarkson raised issues with Caccamo and
Respondent’s owners about what Smith said to her and about him coming back. (Tr. 148-149).
Respondent took no action at the time. In early October, about two months after the alleged
altercation, Caccamo informed Respondent’s owners that he would take Clarkson to the 35
Groveport Police Department to file a complaint that could possibly result in the issuance of a
restraining order against Smith. On October 19, 2017, Caccamo took Clarkson to file the police
complaint against Smith. (Tr. 150-151)(R. Exh. 2). The complaint reads, in pertinent part:
Reporting party (Clarkson) states that on 8/8/17 at about 12:00 another 40
employee of Kraft, Shane Smith, did climb onto her semi power unit and begin to
yell and scream at her because he had recently been fired. He stated to her that
when he got his job back he was going to pull her out of her truck. Clarkson
states that Smith did not like her throughout his employment with the company.
45

8 During the investigation into the unfair labor practices, Respondent submitted this letter to the Region.
The Region contacted Rhodes to verify the letter was accurately written by him, and Rhodes did not do
so. DHL management later found out Rhodes wrote the letter without their permission, and Caccamo
was called into DHL’s human resources office and asked why he was asking DHL’s staff to write emails
and letters regarding Smith. (Tr. 159-160).
JD–78–18
8
(R. Exh. 2).
According to Caccamo, the police took no action against Smith because “this happened
several months before and it was only a verbal confrontation.” (Tr. 151).
5
Pursuant to the terms of the bilateral settlement agreement, Smith returned to work in
November 2017. The day before his return, Respondent’s owners instructed Caccamo to follow
Smith around “like a puppy” to monitor him. Dan O’Brien also told Caccamo to have a recorder
with him in case Smith said anything to him. Clarkson also had a recorder with her. (G.C. Exh.
10). Management told Caccamo to find anything that Smith possibly did wrong, to make sure 10
that every refrigerated trailer he set was correct because of the previous issue, as well as look
for any insubordination or any level of rudeness either with the rest of the staff, internal
management, or with the DHL warehouse staff. (Tr. 164). For the first week, the owners called
Caccamo on a daily basis to get an update on Smith. After that, they continued to call
Caccamo, albeit less frequently, to check in about Smith. (Tr. 165).15
According to Caccamo, Smith “actually came back as a great employee.” He made a
couple of minor mistakes in terms of setting refrigerated trailers or putting trailers in the wrong
door, but, as Caccamo testified, such errors are commonplace and tolerated. Smith came to
work, didn't call off, respected Caccamo and did a good job. (Tr. 165). The Union advised 20
Smith to stay away from Clarkson, and he left her alone. Clarkson confirmed she had no further
issues with Smith. (Tr. 266).9
C. Alleged Unfair Labor Practices
25
1. April 5, 2018 Bargaining Session and Proposal
Following his reinstatement, the Union appointed Smith to be steward and the only
employee member of its bargaining committee. Smith participated in all bargaining sessions.10
He attended the session on April 5, 2018. Smith and Union business agent Theodore 30
Beardsley participated for the Union; Attorney Jim Allen and labor relations specialist Michael
Holmes participated for Respondent. During this session, Respondent proposed a
memorandum of understanding regarding discipline that occurred prior to the parties reaching
an overall agreement. The proposed memorandum stated:
35
1. SHAMROCK CARTAGE (SHAMROCK) and the TEAMSTERS LOCAL 413
(Union) agree that prior to suspending or terminating any bargaining unit
employee represented by the Union, SHAMROCK will notify the on-site

9 Williamson also confirmed that Smith’s work performance was good. (Tr. 280). He did claim, however,
to have learned from others about two issues involving Smith. First, Smith apparently told a new
employee on his first day of employment that he needed to get a smartphone to be able to access PINC
in case the unit in his truck goes down, otherwise he would get less desirable assignments because he
would have to rely on other drivers/spotters to relay assignments to him; that new employee quit later that
same day. Second, Smith told a slower driver/yard spotter that he could not take lunch one day because
he was working too slow. Williamson talked to Smith about both instances, informing him that
Respondent does not require its drivers/yard spotters to get smartphones, and employees cannot, by law,
be denied lunch. (Tr. 273-280). Respondent did not issue Smith any written discipline for these
incidents, and there is no contention that Respondent relied upon these incidents in making the later
decision to suspend and discharge him.
10 According to Beardsley, one of the issues the parties discussed during negotiations was the issues the
drivers/yard spotters were having with PINC, and resulting delays that those issues caused. (Tr. 70).
JD–78–18
9
steward, if he or she is available, and the Business Agent of the pending
disciplinary suspension or termination as soon as possible but no later than
seventy-two (72) hours after the company’s decision. SHAMROCK further
agrees that it may suspend disciplinary suspension or termination for
seventy-two (72) hours (excluding weekends), from the time and date of the 5
notice, so the [Union] may conduct its own review and communicate its
position to SHAMROCK. At the request of the [Union], SHAMRCOK
representatives will meet with the [Union] representatives to finalize or further
discuss termination/disciplinary action.
2. SHAMROCK and the Union agree that SHAMROCK shall have the right to 10
place an employee on investigatory leave, with or without pay. SHAMROCK
will notify the on-site steward, if he is available, and the Business Agent of the
investigatory leave. At the request of the Union, SHAMROCK representatives
will meet with the Union representatives to finalize or further discuss the
investigatory leave. If the investigatory leave was without pay and after the 15
investigation is concluded SHAMROCK determines that the employee’s
actions did not warrant discipline, the employee shall be reinstated with back
pay for the dates they were on investigatory leave. If the investigatory leave
was without pay and after the investigation is concluded, SHAMROCK
determines that the employee’s action did warrant discipline, the discipline 20
shall be immediately implemented and the employee shall not be eligible for
any pay or benefits for the dates they were on investigatory leave.
3. SHAMROCK in the Union agree that SHAMROCK shall have the right to
issue other forms of discipline when it deems warranted, such as an oral and
written warning, to any bargaining unit employee.25
4. The parties agree that this interim discipline policy shall serve as the
agreement of the parties regarding discipline pursuant to Total Security and
shall not serve to prejudice either party from introducing a different proposal
for discipline/grievance resolution during contract negotiations.
5. This Memorandum of Understanding is effective upon execution and shall 30
remain in effect until modified in writing by the parties or a collective
bargaining agreement is executed.
(G.C. Exh. 2).11
35
Beardsley and Smith briefly caucused, and Beardsley stated the Union would not agree
without a just cause requirement. Respondent thereafter withdrew the proposal. (Tr. 63-64).
2. April 9 Morning Exchange Between Smith and Williamson
40
On April 9, 2018, Smith was working at the Kraft/DHL distribution center. At around 9
a.m., Smith drove his truck over alongside Brian Williamson’s truck to speak with him.
Williamson had recently assumed the duties of site supervisor, replacing Jason Caccamo. As
stated, the Union had appointed Smith to be steward, and Smith asked Williamson about Shane
Soward, a new employee working night shift at the Pepsi/Ryder distribution center who was 45
involved in an incident on about March 26, 2018. Williamson and Smith both testified about
their exchange. There was no one else present.

11 Total Security is in reference to the Board’s decision in Total Security Management Illinois 1, LLC, 364
NLRB No. 106 (2016), which is discussed below.
JD–78–18
10
Smith testified he told Williamson he heard Soward “got mouthy” with the manager at the
Pepsi/Ryder center and asked about his status. Williamson responded they were going to fire
Soward. (Tr. 202-203). Smith testified as follows about what happened next:
Q: So what happened next in this conversation?5
A: Okay. Then -- then -- then -- basically -- okay. He -- basically, Brian said -
- he said after talking to the – talking to the manager, he -- okay. Brian said after
he talked to the manager, that all the good workers, he was going to bring --
bring back and all the bad workers, I was going to place on you. Then I asked --
then I said, "Why is that?" And then --10
Q: Go ahead.
A: Okay. I said, "Why is that?" He said, "Because you guys just met up the
week before in contract negotiations. You wouldn't give us a -- a temporary
discipline policy, and we're stuck with him. So I -- I just -- so I decided -- so I
decided that I'm going to go ahead and the good employees, put them back, and 15
then the bad employees, I'm going to go ahead and place with you, you big, bad
– your big bad union and your fellow first-shift workers, and you can deal with
them."
Q. And how did you respond when he said that to you?
A. Went back to work.20
(Tr. 203-204).
Williamson testified as follows about this exchange with Smith:
25
Q. You've never threatened anyone with putting all the bad workers on the
shame shift?
A. I didn't look at that as a threat. Can I answer? I didn't look at that as a
threat. I had an employee, Shawn Soward, and he worked at [ ] the Pepsi
location and he got into an altercation with the Pepsi manager, and he told the 30
Pepsi manager, "Fuck you, you little bitch." And then the Pepsi manager went
into the warehouse and calls me at 1:30 in the morning, "I want this driver
removed from the property and I need another spotter in here ASAP." And that's
exactly what I did. Within 30 minutes, got Mr. Soward removed, sent him over to
Kraft, brought another spotter, John Ross, over to the Pepsi facility to cover the 35
shift.
It was one of those situations where if you get into a fender bender, do
damage to the truck, mess up a mirror, I can cover for you, but as soon as you
start using profanity to our client or to our customer, my hands are tied.
….40
[W]hen I presented this to Mr. Smith, his attitude was like, oh, so he can't
go to Pepsi no more. Bring him over on the Kraft schedule. And, what, put him on
your schedule? Then he's going to mouth off to another warehouse? So I said it
like that, put him on with your schedule? 'Cause Mr. Smith is telling me, oh, you
have Pepsi. No problem. Put him on the Kraft schedule. So, yeah, I guess I did 45
say that. I didn't look at it like a threat, though. I looked at it like you're telling me
that it's no big deal that he mouthed off to Pepsi, bring him over to Kraft. Well, I'll
put him with you. You deal with him. I can't have employees mouthing off to our
customers.
50
(Tr. 281-282).
JD–78–18
11
3. Issues with PINC System and Calls to Customer Support
Later that same day, Smith was having issues with the PINC terminal in his yard truck.
As stated, PINC is the equipment and software system installed in the trucks to inform the
drivers/yard spotters of their assignments and what trailers they are to pick up/drop off and 5
where they need to go. Smith had been having issues with the PINC unit for more than a week,
and he was forced to use the PINC app on his smartphone to get his assignments. At around
12 or 12:30 p.m., Smith drove his truck up alongside Williamson’s truck and told him that the
PINC unit in his truck was “messing up.” Smith told Williamson that, in the past, former site
supervisor Jason Caccamo would call PINC to get the issue resolved, and Smith asked 10
Williamson whether as the new manager he was going to call PINC to take care of the problem.
Williamson responded back “no” and that Smith could go ahead and take care of it himself.
Smith asked Williamson to confirm that he was giving Smith permission to call PINC and take
care of the problem himself, and Williamson said “yes.” Smith then told Williamson that he did
not know how to handle the matter. Williamson answered that there was a 1-800 number on the 15
sticker on the PINC computer screen in the truck, and if it is not there, to go to look at the
screen in another truck to write down the number. Williamson told Smith to call the 1-800
number and there would be three prompts, and to select the IT department. Once he got the IT
department, the customer support person on the phone will ask Smith three or four questions
(i.e., name, truck number, location, etc.). Smith told Williamson he would call during his lunch 20
break, so that the truck was not down. That was the end of their conversation. (Tr. 205-208)
About an hour later, during his lunch break, Smith called the toll-free customer support
number for PINC in California. He went through the prompts and was connected to a customer
support technician named “Dave.” Smith gave his name, that he was a driver/yard spotter for 25
Respondent at the Kraft/DHL center, that he was having diagnostic problems with the unit in his
truck (truck 263), and that he had been instructed to call PINC to see if someone could help.
(Tr. 209-210). Dave attempted to remotely access the PINC terminal in truck 263 to run a
diagnostic check, which took several minutes to attempt.
30
While on the phone, Smith asked Dave about another truck in the yard, truck 261, which
had been out-of-service for over three months because of issues with its PINC unit. Dave called
over to the supply chain manager (“Jerry”) to relay Smith’s question about truck 261. Jerry got
on the phone and told Smith he was aware of the issue with truck 261, and PINC sent an email
or billing invoice to the DHL warehouse manager and to a Shamrock manager about replacing 35
the unit. Jerry informed Smith that DHL and Shamrock communicated back that neither was
responsible for paying for a replacement, and that Kraft would be responsible for paying for it.
Jerry said PINC was still waiting on billing approval from Kraft before replacing the unit. Smith
then asked whether PINC had sent out an email to DHL or Shamrock asking for updated
contact information for the people at Kraft, so PINC could contact Kraft directly. Jerry said he 40
could do that, and he asked Smith whether he could mention that the email was sent per a
discussion with a driver. Smith replied that he did not have a problem with that. (Tr. 213-215).
That was the end of the conversation. Smith then got off the phone and returned to work. PINC
was unable to fix the issue with Smith’s truck, so he had to use the PINC app on his smartphone
for the rest of his shift. (Tr. 216).45
4. Suspension of Smith
Later that afternoon, PINC sent an email to DHL and Kraft representatives, copying
Brian Williamson. The email was not introduced into evidence. According to Williamson, the 50
email from PINC stated that “driver Shane” was inquiring about a purchase order for the
JD–78–18
12
computer in truck 261. Attached to the email was an invoice for around $3,200. (Tr. 325-326).
Before Williamson could respond back, DHL’s manager (Joe Hunt) communicated with PINC
that they had discussed this matter in the past, and Shamrock and DHL are not responsible for
paying for the replacement unit, and that Kraft would be handling it. (Tr. 326-327). After
receiving the email, Williamson called labor relations specialist Michael Holmes. Holmes spoke 5
with owner Dan O’Brien. According to Holmes, O’Brien told him, “Look, we don’t know what
he’s doing right now. We don’t know who he’s contacting. We don’t know what is going on. He
needs to leave the property.” (Tr. 340). Holmes contacted Williamson and told him to have
Smith leave the property. Holmes also told Williamson he would listen in by phone when
Williamson spoke with Smith about the suspension.10
Smith continued to work until around 5 or 5:30 p.m., when he received a call from
Williamson. Williamson told Smith to come over and see him. Smith drove his truck over to
Williamson’s truck. Williamson informed Smith that he was being suspended pending
investigation leading to termination, and he instructed Smith to park his truck, gather his 15
belongings, and leave the site. Smith asked Williamson several times why he was being
suspended, but Williamson would not provide him with a reason. Smith then asked whether it
had anything to do with him calling PINC for the diagnostic and inquiring about truck 261 and
the email, and Williamson responded “yes.”12 On his way out, Smith told Williamson that he
would be contacting the Union; he would win his job back with backpay; and “when I get back 20
you are done.” (Tr. 290).13 Holmes was listening on the phone to this conversation between
Smith and Williamson.
5. Discussion with Union over Smith’s Suspension
25
Shortly after Williamson notified Smith of his suspension, Holmes called and left a
voicemail message with Union business agent Ted Beardsley, and later with the Union’s
attorney Clement Tsao, to advise that Respondent had suspended Smith. At the time,
Beardsley was involved in bargaining, and he retrieved Holmes’s message later. Beardsley
called Holmes back, and the two agreed to meet to discuss the matter. (Tr. 343-344)30
The meeting took place on around April 12, and it lasted about 45 minutes to an hour.
Smith, Beardsley, and Union business agent Dave Payne attended for the Union. Holmes was
present in person and Attorney Jim Allen was present by telephone for Respondent. Williamson
did not attend this meeting. Holmes stated that Smith had been suspended for contacting PINC 35
without permission. [Williamson denied giving Smith permission to call PINC.] Holmes also
stated that Smith represented himself as something more than he was when he inquired about
truck 261. Smith was given an opportunity to give his side of the story. At the end of it, Holmes
and Allen said the company was going to continue to investigate, and if there is no evidence
establishing that Smith had authority to contact PINC, the company intended to terminate Smith 40
at the end of the investigation. (Tr. 344). Holmes and Allen stated they would discuss the matter
with Respondent’s owners and get back them within a day or two.

12 Respondent’s employee handbook addresses discipline (Jt. Exh. 10, pp. 034-035), but it is not a
progressive disciplinary system, and there is no evidence Respondent regularly suspends employees for
certain offenses. Holmes confirmed Smith’s suspension was a discretionary decision. (Tr. 355-356).
13 After Smith left the property, he called PINC and talked again with both Dave and Jerry about their
earlier conversations. Smith informed them he had been suspended and wanted to go over word-for-
word to try to understand what he may have said that warranted being suspending. (Tr. 231-232).
JD–78–18
13
6. Discharge of Smith
On April 13, 2018, Holmes called Smith to inform him that after completing their
investigation the owners decided to discharge him.14 Respondent never issued anything to
Smith or the Union stating its asserted rationale for firing Smith. (Tr. 222).155
IV. ANALYSIS
A. Witness Credibility
10
This case presents certain matters that require an assessment of witness credibility. In
assessing credibility, I have relied primarily on witness demeanor. I also have considered
factors such as: the context of the witness's testimony, the quality of the witness’s recollection,
testimonial consistency, the presence or absence of corroboration, the weight of the respective
evidence, established or admitted facts, inherent probabilities, and reasonable inferences that 15
may be drawn from the record as a whole. See Double D Construction Group, 339 NLRB 303,
305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership

14 Smith testified he was paid for April 9, but not the other days he was suspended. (Tr. 223).
Respondent presented no evidence, testimony or documentation, that Smith was paid for those days.
15 Counsel for General Counsel introduced subpoenaed documents of discipline Respondent issued from
July 2016 to the present. (G.C. Exh. 11). Respondent provided no documentation of any employee
being disciplined for contacting PINC with or without authorization. The parties stipulated the only other
responsive discipline was that issued to Damien Kerney, Travis Hamilton, and Shane Soward.
Kerney worked at an unrelated location. He arrived half an hour late for work and was sent home
after he began “mouthing back” and being “disrespectful” to a customer. The customer asked
Respondent that Kerney not be returned to its facility. The documents do not specify what Kerney said
or did, or what, if any, other action Respondent took against him. (G.C. Exhs, 12(a) and 12(b)).
Hamilton received over 15 warnings based on his attendance. From mid-April through July 2018,
Hamilton called off work at least 13 times, including when he was a lead person. Several of these call-
offs occurred less than 2 hours prior to the start of his shift, making it difficult for the site supervisor to find
a replacement. In one of the warnings, Williamson noted that he had been covering for Hamilton by “not
reporting his absences to corporate.” (G.C. Exh. 12(i)). Hamilton’s absences often left the facility short-
handed, including over busy holiday weekends. On July 4, 2018, after Hamilton was a no-call/no-show,
Williamson changed Hamilton’s schedule and relocated him to another warehouse. (G.C. Exh. 12(p)). On
July 29, 2018, Hamilton called off again, and Williamson requested that ownership terminate him. (G.C.
Exh. 12(r)). Hamilton, however, continued working for Respondent until October 2018. (Tr. 94).
As discussed, Soward directed profanity at a manager at the Pepsi/Ryder distribution center on
March 26, 2018. (G.C. Exh. 12(c)). According to the incident report, the manager called Soward a
“dummy” and Soward responded by saying, “Fuck you, you little bitch.” The manager called Williamson
at about 1:30 a.m. and demanded that Soward be replaced. Williamson then called Soward and
reassigned him to the Kraft/DHL distribution center for the remainder of his shift, and that another
driver/yard spotter was coming in to relieve him. Williamson told Soward he could not speak to customers
that way. He also gave Soward suggestions on how to handle the situation better, and that Soward
should have let Williamson know so he could have spoken with the customer. Soward responded that
this was “bullshit.” Soward was not scheduled to work the next two days. On the third day, Williamson
called Soward. He reminded Soward that he had been working for Respondent for 3 days, was still in his
training stages, and that he cannot use profanity toward customers. Before Williamson could finish,
Soward cut him off by saying, “You know what. Your [sic] a dick and you can shove that job up your ass!”
Soward then hung up on Williamson. Respondent eventually discharged Soward. It is not clear what the
final reason was for Soward’s discharge. At the hearing, Williamson testified it was because of what
Soward said to the manager at Pepsi/Ryder, but the report reflects that two days after Soward directed
profanity at the manager, Williamson still was attempting to counsel him, and it was not until after Soward
called Williamson a “dick” and told him to shove the job up his ass that Soward was discharged.
JD–78–18
14
Group, 321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed. Appx. 516 (D.C. Cir. 2003).
Credibility findings need not be all-or-nothing propositions. Indeed, nothing is more common in
judicial decisions than to believe some, but not all, of a witness’s testimony. Daikichi Sushi,
supra at 622; Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008)(citing NLRB v. Universal
Camera Corp., 179 F.2d 749, 754 (2nd Cir. 1950), revd. on other grounds 340 U.S. 474 (1951)).5
The General Counsel called Union business agent Ted Beardsley, former employee
Trevor Hamilton, former site supervisor Jason Caccamo, and Shane Smith as witnesses.
Respondent called employee Lisa Clarkson, site supervisor Brian Williamson, and labor
relations specialist Michael Holmes as witnesses.
In general, I found Caccamo to be a highly credible witness. He testified fully and 10
honestly on both direct and cross-examination. His recollection was detailed, consistent, and
corroborated by documentary evidence, including contemporaneous emails and text messages.
He also did not demonstrate a bias for or against any side. He testified on behalf of the General
Counsel, but did not appear to favor Smith, acknowledging that his nicknames for Smith
included “asshole” and “crybaby.” He did not demonstrate any animosity toward Respondent, 15
stating he resigned his employment on good terms in order to accept other employment.
Caccamo fully acknowledged, in detail, his involvement in undermining the union organizing
campaign and getting rid of Smith, the efforts to fabricate reasons to keep Smith from being
reinstated, and, later, the monitoring of Smith to look for reasons to terminate him following his
reinstatement. Respondent made no effort to refute Caccamo’s very damaging testimony, other 20
than to attempt to undermine his credibility by introducing his prior criminal convictions for fraud.
(R. Exh. 1). I found this attempt unavailing considering his overall credible demeanor and the
corroboration of his testimony through contemporaneous documentation. Additionally,
Respondent’s owners hired and employed Caccamo with full knowledge of these prior
convictions. (Tr. 186-187).25
I found Beardsley and Hamilton to be credible witnesses. Each testified in an honest
and forthright manner, but their testimony largely related to peripheral matters not critical the
allegations at issue. I found Smith, Williamson, Clarkson, and Holmes to be partially credible
witnesses. At times, each provided inconsistent, implausible, or self-serving testimony that
favored his/her respective position(s). As discussed below, their failure to testify fully at times 30
has led me to only credit those portions of their testimony consistent with my findings of fact.
Respondent did not call owners Dan O’Brien or Matt Harper, or general manager
Michael Harper, to testify. Caccamo, Williamson, and Holmes each testified that O’Brien and
Matt Harper made the adverse employment decisions regarding Smith (in August 2017 and
April 2018). The Board recognizes that when a party fails to call a witness who may reasonably 35
be assumed to be favorably disposed to the party, an adverse inference may be drawn
regarding any factual question on which that witness is likely to have knowledge. International
Automated Machines, 285 NLRB 1122, 1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988). This is
particularly true where the witness is an agent of a party. Roosevelt Mem. Med. Ctr., 348 NLRB
1016, 1022 (2006). Specifically, the Board will infer that such a witness, if called, “would have 40
testified adversely to the party on that issue.” Id.; see also Flexsteel Industries, Inc., 316 NLRB
745, 758 (1995). In particular, the Board will not hesitate to draw an adverse inference from a
respondent's failure to present the testimony of a decision maker as to his/her motive in taking
the alleged discriminatory action. See Dorn's Transportation, 168 NLRB 457, 460 (1967), enfd.
in pert. part 405 F.2d 706, 713 (2nd Cir. 1969) (failure of the decision maker to testify “is 45
damaging beyond repair”); The Southern New England Telephone Co., 356 NLRB No. 118
JD–78–18
15
(2011) (failure to call decision maker warrants adverse inference); Government Employees
(IBPO), 327 NLRB 676, 699 (1999). See also Interstate Circuit v. United States, 306 U.S. 208
(1939) (“The production of weak evidence when strong is available can lead only to the
conclusion that the strong would have been adverse”). Respondent presented no explanation
for why these decision makers did not appear and testify at the hearing. Martin Luther King Sr. 5
Nursing Center, 231 NLRB 15, 15 fn. 1 (1977) (adverse inference appropriate where no
explanation as to why supervisors did not testify). I, therefore, draw an adverse inference based
on Respondent’s failure to call owners Dan O’Brien or Matt Harper to testify.
In addition to these general findings, there are specific conflicts in testimony that directly
or indirectly affect my findings and conclusions in this case. The first concerns the conversation 10
between Smith and Williamson on the morning of April 9, when Williamson allegedly threatened
Smith that he would assign the bad employees to Smith’s shift because the Union had rejected
Respondent’s proposed memorandum of understanding dealing with discipline. I credit
Williamson’s recollection and testimony regarding this exchange. It is more logical and
plausible. To begin with, the unrefuted testimony is that Williamson was not present for, had no 15
involvement in, or knowledge of the proposals exchanged during negotiations once he became
a supervisor in early April. Therefore, there is no basis from which to conclude that Williamson
knew the Union had rejected the Respondent’s proposed memorandum of understanding at the
time of this exchange with Smith. Also, while Smith testified fully, clearly, and in detail on all
other matters, he did not do so regarding this exchange. As the previously quoted portions of 20
the transcript demonstrate, Smith struggled mightily to recall and testify about the contents of
what was said. His testimony was, at best, disjointed, particularly over how their conversation
transitioned from Soward to assigning “bad employees” to work on Smith’s shift at Kraft.
In contrast, Williamson’s recollection and testimony about this exchange was more
logical and plausible. I find that Smith, as the Union steward, likely was looking for ways to help 25
Soward keep his job; hence, he suggested that Respondent reassign Soward to work first shift
at the Kraft location. I credit that Williamson’s reaction was one of disbelief. He could not
believe Smith would suggest Respondent keep and reassign a new employee that had directed
profanity at a manager of one of Respondent’s customers to another facility and run the risk that
employee would engage in similar conduct at that new location. To which Williamson 30
sarcastically responded, “Well, I'll put him with you. You deal with him.” I credit there was no
mention of the Union or its rejection of Respondent’s proposed memorandum of understanding
addressing discipline prior to the parties reaching an agreement.
The second conflict concerns whether later that day Smith requested and obtained
Williamson’s permission to contact PINC about truck 263. Williamson denied giving Smith 35
permission during his testimony. (Tr. 308-309). I do not credit Williamson’s denial. Based on
the testimony of Smith, Clarkson, and Caccamo, the practice had been that employees would
go to Caccamo when they had issues with the PINC terminals, and he typically would call PINC
to obtain assistance in addressing the issue. (Tr. 258). That practice changed later when PINC
informed Caccamo that it wanted to speak to the drivers in the truck to more directly help 40
troubleshoot their issues. (Tr. 371-372). However, the drivers were still to notify Caccamo when
there was an issue and they were going to contact PINC. Williamson was the new site
supervisor, and it is logical that Smith would ask to determine if Williamson was going to follow
the same procedure, or was he going to require a different procedure. Additionally, I credit that
Smith never contacted PINC before this, so it is logical that he would ask Williamson what 45
number to call and the procedure to follow once he was talking with customer support. Finally,
after Smith was terminated for the second time, Williamson called Caccamo with unrelated
JD–78–18
16
questions. In that conversation, Williamson informed Caccamo that Smith had been terminated,
and he explained what happened. In his explanation to Caccamo, Williamson acknowledged
that he had given Smith permission to contact PINC to resolve the issue with his truck. (Tr. 369-
370). Based on this evidence, I credit Smith requested and received permission to contact
PINC on April 9 regarding the issues with the unit in his truck.165
The third conflict concerns why Clarkson went to the police to file a complaint against
Smith on October 19, 2017, more than two months after their confrontation. Clarkson testified
she filed the complaint after she “found out that Shane was coming back” and she wanted a
paper trail in case it happened again. (Tr. 262). Clarkson also testified that no one told her to file
the complaint. (Tr. 262). I do not credit her testimony. Caccamo credibly testified that he10
spoke with Clarkson about filing the complaint, and that he accompanied her to the police
department. Furthermore, Clarkson damaged her credibility on whether she went to the police
station alone. Clarkson initially testified she went to file the complaint alone. Then when
specifically asked if Caccamo accompanied her, Clarkson initially said no. She then changed
her answer to confirm he did. (Tr. 265). I find her initial responses were not a genuine failure to 15
recall but rather a deliberate effort to conceal. More importantly, I do not credit that Clarkson
filed the complaint because she “found out that Shane was coming back.” There is no evidence
Smith was coming back to work as of October 19. Six days before Clarkson went to the police,
the Regional Director issued the complaint alleging that Respondent unlawfully discharged
Smith because of his protected union activities. It was not until November 9--three weeks after 20
Clarkson went to the police--that the parties signed off on the informal settlement providing of
Smith’s reinstatement. The only evidence of discussions occurring at or around this same time
were Caccamo’s conversations with Respondent’s owners about coming up with reasons to
block Smith from being reinstated, including having DHL fabricate a letter and taking Clarkson
down to file a police complaint to possibly get a restraining order. In light of the foregoing, I find25
Clarkson did not file the police report in case Smith threatened her following his reinstatement,
but rather to provide a seemingly legitimate reason to block Smith from returning at all.
B. Alleged Violations
1. Threat of more onerous working conditions
The amended complaint alleges that on April 9, 2018, Williamson threatened Smith with 30
the more onerous working condition of working with "bad workers" because the Union rejected
Respondent's proposal on discipline during contract negotiations, in violation of Section 8(a)(1)
of the Act. Section 8(a)(1) provides that “[i]t shall be an unfair labor practice for an employer to
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7
[of the Act].” In assessing whether a remark constitutes a threat, the appropriate test is whether 35
the remark can reasonably be interpreted by the employee as a threat. Smithers Tire, 308

16 Williamson offered testimony on other matters that undermine his overall credibility. For example,
when Williamson was asked whether O’Brien came to the job site to distribute $100 bills to employees
prior to the Union election, he testified O’Brien came to the site four times prior to the instance at issue to
give employees $100 for their good work. However, in his pre-hearing Board affidavit, Williamson
testified that the last time he had seen O’Brien prior the visit at issue was in April when the employees
were hired and first began learning the job. (Tr. 315-316). Also, Caccamo credibly testified he and
Williamson had nicknames for Smith, such as “crybaby,” “asshole,” and “superstar.” The last was a
favorable reference to Smith’s strong work performance, while the others related to his personality.
Williamson denied referring to Smith as a “crybaby” but admitted to calling him a “superstar.” (Tr. 303). I
find he denied using these other nicknames so as not to present as having hostility toward Smith.
JD–78–18
17
NLRB 72 (1992). The intent of the speaker or the effect on the listener is immaterial. Id.; see
also Wyman-Gordon Co. v. NLRB, 654 F.2d 134, 145 (1st Cir. 1981) (inquiry under Sec. 8(a)(1)
is an objective one which examines whether the employer's actions would tend to coerce a
reasonable employee). The Board considers the totality of the circumstances in assessing the
reasonable tendency of an ambiguous statement or a veiled threat to interfere with, restrain, or 5
coerce. KSM Industries, 336 NLRB 133, 133 (2001).
The General Counsel asserts this threat occurred when Smith inquired about whether
Respondent was going to terminate Shawn Soward for mouthing off to a manager at the
Pepsi/Ryder distribution center. As stated, there was a conflict in testimony between Smith and
Williamson over what was said, and I have credited Williamson. I find Williamson made no 10
mention of the Union or its rejection of Respondent’s proposed memorandum of understanding
on interim discipline. I, therefore, do not find that Williamson threatened Smith with the more
onerous working condition of working with "bad workers" because, as alleged, the Union
rejected Respondent's proposal on discipline during contract negotiations, and would therefore
recommend dismissal of this independent 8(a)(1) allegation.15
2. Unlawful Suspension and Discharge of Smith
The amended complaint alleges Respondent suspended Smith on April 9, 2018, and
later discharged him on April 13, 2018, because of his protected union activities, in violation of
Section 8(a)(3) and (1) of the Act. Under Section 8(a)(3) of the Act, an employer may not
discriminate with regard to hire, tenure, or any term or condition of employment in order to 20
encourage or discourage membership in a labor organization. The amended complaint also
alleges Respondent suspended and later discharged Smith in April 2018, because he gave
testimony to the Board in the form of an affidavit, was named in a charge in Cases 09-CA-
204232 and 09-CA-207419, and cooperated in a Board investigation in Cases 09-CA-204232,
09-CA-205156 and 09-RC-203855, in violation of Section 8(a)(4) and (1) of the Act. Under 25
Section 8(a)(4), an employer may not discharge or otherwise discriminate against an employee
because he/she has filed charges or given testimony under this Act.
In cases where the employer's motivation for the adverse action(s) is at issue, the Board
applies the analytical framework set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 30
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). See also American Gardens Mgmt. Co., 338 NLRB
644, 644-645 (2002)(applying Wright Line to Section 8(a)(4) allegations). To establish a
violation under Wright Line, the General Counsel first must prove, by a preponderance of the
evidence, that the employee’s protected activity was a motivating factor (i.e., whole or in part) in 35
the employer's decision to take the adverse action(s) at issue. Manno Electric, Inc., 321 NLRB
278, 280 (1996). The General Counsel satisfies this burden by showing: (1) the individual's
protected activity; (2) employer knowledge of such activity; and (3) animus.17 Animus can be
established through direct evidence or inferred from circumstantial evidence. See Kajima
Engineering & Construction, 331 NLRB 1604, 1604 (2000); Montgomery Ward & Co., 316 NLRB 40
1248, 1253 (1995), enfd. mem. 97 F.3d 1448 (4th Cir. 1996). See also Medic One, Inc., 331
NLRB 464, 475 (2000) (noting that “[e]vidence of suspicious timing, false reasons given in
defense, failure to adequately investigate alleged misconduct, departures from past practices,

17 The General Counsel, however, is not required to “demonstrate some additional, undefined ‘nexus'
between the employee's protected activity and the adverse action.” Libertyville Toyota, 360 NLRB 1298,
1301, fn. 10 (2014), enfd. sub nom. AutoNation v. NLRB, 801 F.3d 767 (7th Cir. 2015).
JD–78–18
18
tolerance of behavior for which the employee was allegedly fired, and disparate treatment of the
discharged employees all support inferences of animus and discriminatory motivation”).
As part of this initial showing, the General Counsel may offer proof that the employer's
stated reasons for the adverse actions are pretextual. Con-Way Freight, Inc., 366 NLRB No. 5
183, slip op. at 3 (2018) (citing to Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003); and Laro
Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995)). A finding of pretext defeats
any attempt by the employer to show that it would have taken the adverse action absent the
employee’s statutorily protected activities. Id. This is so because where the reasons given for
the employer’s action are pretextual (i.e., either false or not in fact relied upon), the employer 10
fails by definition to show that it would have taken the same action for those reasons, absent the
protected conduct, and thus there is no need to perform the second part of the Wright Line
analysis. Id. (internal citations omitted).
Pretext may be demonstrated by various factors, including disparate treatment, shifting 15
explanations, or an inadequate investigation into a discriminatee's alleged misconduct. See,
e.g., Shamrock Foods, 366 NLRB No. 117, slip op. at 27-28 (2018) (employer's shifting, false, or
exaggerated reasons for an adverse action); Airgas USA, LLC, 366 NLRB No. 104 (2018)
(disparate treatment in discipline); St. Paul Park Refining Co., 366 NLRB No. 83 (2018)(failure
to conduct complete and objective investigation); Lucky Cab Co., 360 NLRB 271, 277 20
(2014)(providing additional reasons for discharge at a hearing); Air Flow Equipment, Inc., 340
NLRB 415, 418 (2003)(reliance on stale incidents and conduct previously tolerated and
accorded no discipline); Martech MDI, 331NLRB 487, 505-506 (2000), enfd. 6 Fed. Appx. 14
(D.C. Cir. 2001) (inconsistent explanation and false and shifting reasons for adverse action);
Baptist Hospital, Orange, 328 NLRB 628, 635 (1999) (failure to comply with established 25
disciplinary procedure); and Stoody Co., 312 NLRB 1175, 1182-1183 (1993) (failure to timely
document or follow established disciplinary policies).
If the General Counsel fails to establish pretext, but establishes the Wright Line factors,
the burden shifts to the employer to show that it would have taken the same action in the 30
absence of the employee's protected activity. Wright Line, 251 NLRB at 1089. See also
Libertyville Toyota, 360 NLRB 1298, 1301 (2014); enfd. 801 F.3d 767 (7th Cir. 2015); Bally's
Atlantic City, 355 NLRB 1319, 1321 (2010) (if General Counsel makes a strong initial showing of
discriminatory motivation, the respondent's rebuttal burden is substantial), enfd. 646 F.3d 929
(D.C. Cir. 2011). The employer cannot meet its burden merely by showing it had a legitimate 35
reason for its action; rather, it must show it would have taken the same action in the absence of
the protected conduct. See Bruce Packing Co., 357 NLRB 1084, 1086-1087 (2011), enfd. in
pertinent part 795 F.3d 18 (D.C. Cir. 2015); Carpenter Technology Corp., 346 NLRB 766, 773
(2006) (The issue is not simply whether the employer could have disciplined the employee, but
whether it would have done so, regardless of his/her protected activity).40
The General Counsel has established that Smith’s statutorily protected union and Board
activities were a motivating factor in Respondent’s decisions to suspend and discharge him in
April 2018. Smith was the Union’s lead union organizer, responsible for soliciting authorization
cards that led to the filing of the RC petition. The day after that petition was filed, Respondent 45
discharged Smith, and the Union filed a charge specifically alleging he was discharged in
retaliation for his protected union activities. Smith provided an affidavit in support of that charge,
as well as the Union’s other charges and the post-election objections. Respondent eventually
entered into a settlement to resolve these matters. The settlement required Respondent to
reinstate Smith with backpay and, among other steps, have a member of management read the 50
notice to employees at a future date. Upon his reinstatement, the Union selected Smith to be
JD–78–18
19
the steward and the sole employee member of its bargaining committee. Smith participated in
all contract negotiations. Aside from the affidavit, I find Respondent had direct knowledge of
Smith’s alleged protected activities.
Respondent has demonstrated substantial and pervasive anti-union animus. According 5
to Caccamo, from August through the end of his employment on March 30, 2018, Respondent’s
owners were committed to ending the organizing effort and ensuring that it did not spread to the
warehouse(s) or any of Respondent’s other facilities. In August, Respondent committed a
series of hallmark violations after the petition was filed, including polling employees about their
union support, threatening closure if the employees continued to support the Union, discharging 10
the lead union organizer (Smith), warning the other organizer (Hamilton) not to do anything to
make himself more of a target, and later reassigning him to allow management to monitor his
activities. As Caccamo testified, Respondent’s decision to discharge Smith was based on
exaggeration and cover-ups. Respondent discharged Smith for failing to properly set the
temperature in the refrigeration trailers—the exact conduct for which he had already been 15
disciplined with a written warning a week earlier. The only intervening event between when
Caccamo issued Smith the warning and discharging him is Respondent’s owners learning Smith
was the lead union organizer. As a post hoc justification, Respondent’s owners instructed
Caccamo to hold an employee meeting and announce a zero-tolerance policy for employees
who fail to set the temperature in the trailers properly.18 Thereafter, Respondent engaged in 20
exaggeration and fabrication to keep Smith from being reinstated, including manufacturing
evidence that Smith could not return because he posed an unacceptable risk and taking
Clarkson to file a complaint to possibly get a restraining order against Smith. Once Smith was
reinstated, Caccamo was instructed to continue monitoring him and find anything that he
possibly did wrong. In other words, just as it had after learning that Smith was responsible for 25
the union organizing effort, Respondent adopted the practice of “watchfully waiting” for a reason
or pretext that it could seize upon as a means of getting rid of Smith, again. See San Benito
Health Foundation, 318 NLRB 299 (1995); Kut Rate Kid and Shop Kwik, 246 NLRB 106 (1979)
(and cases cited therein); and NLRB v. Lipman Bros., Inc., 355 F.2d 15, 21 (1st Cir. 1966). This
monitoring continued, albeit less frequently, through the end of Caccamo’s employment. Smith’s 30
suspension and (second) discharge occurred about a week after Caccamo resigned, and
Williamson took over as site supervisor.
The General Counsel contends that Respondent’s stated reason(s) for suspending and
discharging Smith in April 2018 are pretext for its unlawful motivations. I agree. As stated, I find35
that Smith requested and received permission from Williamson to call PINC to ask about his
truck (truck 263). He, however, did not have permission to inquire about truck 261. That being
said, I find Respondent seized upon and exaggerated Smith’s inquiry about truck 261 as a
pretextual reason for suspending and discharging him to mask its true unlawful motivations.
This finding is based on several factors.40

18 Respondent contends that the General Counsel spent much of its case re-litigating the union animus
from the prior case, and relied upon “[r]umor or innuendo concerning behavior already remedied through
settlement, in which Shamrock voluntarily confessed and entered into, does not meet the requirement of
demonstrating animus.” (R. Br. 14). Respondent entered into an informal settlement agreement with a
non-admissions clause; therefore, it did not voluntarily confess to the prior allegations. (Jt. Exh. 9).
JD–78–18
20
First, as explained above, Respondent has history of exaggerating (and fabricating)
Smith’s missteps and doling out excessive penalties in order get rid of Smith.19 See Materials
Processing, Inc., 324 NLRB 719 (1997)(employer's exaggeration of an offense and issuance of
a harsh penalty is evidence of pretext); Radisson Muehlebach Hotel, 273 NLRB 1464, 1475-
1476 (1985); Harrison Steel Castings Co., 262 NLRB 450, 479 (1982) enfd. in relevant part 728 5
F.2d 831 (7th Cir. 1984); and Electri-Flex Co., 238 NLRB 713, 725 (1978). Respondent makes
reference to an email from PINC establishing that Smith’s inquiry was improper, but this
document was not introduced into evidence. The only evidence of Smith’s conversations with
PINC is his testimony, which I have credited. He inquired about the status of the PINC unit in
truck 261. When the PINC representative informed him that they were waiting to hear back 10
from Kraft about whether they were going to move forward with purchasing a replacement,
Smith asked whether PINC had sent out an email to DHL or Respondent asking for updated
contact information for Kraft, so PINC could contact Kraft directly. Respondent argues Smith’s
inquiry could have either resulted in it, or its clients, incurring any expenses, thus jeopardizing
the continuation of its relationship with those clients. (R. Br. 13). Respondent, however, failed 15
to support this argument with evidence. Smith did not misrepresent himself, his position, or his
authority. He did not request or suggest that PINC (re)send the purchase order. He did not
commit or suggest that Kraft, DHL, or Respondent would pay for the replacement unit, and no
one incurred any costs or expenses as a result of his inquiry. Finally, there is no evidence DHL
or Kraft reacted negatively, or threatened to terminate the contract with Respondent, as a result 20
of Smith’s inquiry. Respondent’s claims, therefore, are unfounded.
Second, Respondent made the decision to suspend and discharge Smith based on a
perfunctory investigation. See Andronaco Industries, 364 NLRB No. 142, slip op. at 14
(2016)(citing Ozburn-Hessey Logistics, LLC v. NLRB, 609 Fed. Appx. 656, 658 (D.C. Cir. 2015)25
enfg. 357 NLRB 1632 (2011))(failure to conduct a thorough pre-discharge investigation can be
evidence of pretext); Socied Espaiiola de Auxillio, 342 NLRB 458 (2004), and K&M Electronics,
283 NLRB 279, 291 fn. 45 (1987). After Williamson received the PINC email, he contacted
Michael Holmes to report what had occurred and recommended that Smith be discharged.
Holmes knew that Respondent could not discharge Smith before notifying and meeting with the 30
Union, so Holmes contacted the Union to schedule a meeting. Holmes advised Williamson to
tell Smith that he was being suspended pending investigation leading to termination. Three
days later, Holmes and Respondent’s attorney Jim Allen met with the Union to get Smith’s
statement. There is no evidence Respondent did anything else, before or after that meeting, to
“investigate” the matter. Nor is there any evidence that Respondent contacted PINC, or the two 35
PINC representatives Smith spoke to, about their conversations.
Third, Respondent has offered shifting or inconsistent explanations for its decision to
suspend and discharge Smith. See Lucky Cab Co., 360 NLRB at 275; City Stationery, Inc., 340
NLRB 523, 524 (2003); and GATX Logistics, Inc., 323 NLRB 328, 335 (1997). Holmes initially 40
testified Smith was suspended and later discharged because he was “not authorized to request
information about a purchase order or attempt to create some kind of issue between these
companies or push Shamrock to buy something when they don't even have the ability to do
that.” (Tr. 342). Holmes later was asked if Smith was discharged because of his union
activities, and he responded, “Absolutely not. Shane Smith was fired because he contacted 45
PINC about something he had no authorization to contact PINC about.” (Tr. 349). On cross-
examination, Holmes testified Smith was discharged because of his unauthorized contact with

19 I am mindful the Board does not second-guess an employer's business decisions, but it is charged with
determining whether business decisions are motivated by union animus and whether stated rationales are
pretext. See Real Foods Co., 350 NLRB 307, 312 (2007).
JD–78–18
21
PINC “and his threats.” (Tr. 359). The alleged “threats” were Smith’s statement to Williamson
when he was suspended that, "I'll be back with or without pay and you're done." (Tr. 359). The
“you’re done” portion being the alleged threat.
Respondent argues in its post-hearing brief it was concerned about these statements 5
“because Smith has a documented history of workplace harassment and violent behavior.” (R.
Br. 5, 13, and 16). This “documented history” relates solely to the exchange between Smith and
Clarkson after he was first discharged. (Tr. 255-257). As previously stated, Respondent took
no action against Smith at the time, and Clarkson acknowledged that after Smith was reinstated,
and he was told by the Union to leave her alone, there were no further issues. Of significance is 10
that in both Clarkson exchange and Williamson exchange, Smith is accused of reacting
improperly immediately after being unlawfully discriminated and retaliated against because of
his statutorily protected activities.
In its post-hearing brief, Respondent raises two new post hoc arguments to justify its 15
decision to discharge. See Inter-Disciplinary Advantage, Inc., 349 NLRB 480, 509 (2007)(post
hoc attempts to rationalize adverse actions are suggestive of a pretext); Aljoma Lumber, Inc.,
345 NLRB 261, 287 (2005); Yukon Manufacturing Co., 310 NLRB 324, 340 (1993); and Bay
Metal Cabinets, Inc., 302 NLRB 152, 173 (1991). First, Respondent argues that Smith’s inquiry
violated Section 6.13 of the employee handbook. (R. Br. 13). Section 6.13 states: “Only 20
authorized persons may purchase supplies in the name of Shamrock Cartage Inc. No
employee whose regular duties do not include purchasing shall incur any expense on behalf of
Shamrock Cartage Inc. or bind Shamrock Cartage Inc. by any promise or representation without
express written approval.” (Jt. Exh. 10, pg. 041). However, as stated, Smith did not purchase or
incur any expenses on behalf of Respondent, nor did he attempt to do so, when he contacted 25
PINC regarding truck 261. Second, Respondent accuses Smith of insubordination following his
suspension. Specifically, Respondent contends Smith was insubordinate when he called PINC
back and spoke to the two representatives after being suspended for calling PINC in the first
place. However, there is no evidence this rationale was ever considered or relied upon when
Respondent discharged Smith. As such, I find these shifting and post hoc justifications further 30
bolster a finding of pretext.
Finally, Respondent’s decision to suspend and discharge Smith was disproportionate
compared to the discipline (not) issued to others. See Airgas USA, LLC, supra (disparate
treatment or disproportionate discipline can be evidence of pretext). As stated, the General 35
Counsel introduced evidence of how Respondent disciplined other employees for misconduct,
including Travis Hamilton and Shane Soward. Respondent was far more tolerant with Hamilton
and Soward than with Smith. Hamilton was not suspended or discharged, despite calling off 13
times in a four-month period and being a no-call/no-show during a busy holiday shift, and even
though his supervisor was effectively begging for Hamilton’s termination. Soward was not 40
immediately suspended or discharged for directing profanity at a customer on his 3rd day of
employment. Smith made mistakes, but, according to Caccamo, he did not call off work,
respected his supervisor, and did a good job. Yet, Respondent immediately suspended and
later discharged him following a perfunctory investigation because of the potential
consequences associated with his unauthorized inquiry and suggestion that PINC send an 45
email to get updated contact information in the event they wanted to contact Kraft directly. I find
this evidence, along with the exaggeration of Smith’s missteps, the perfunctory investigation,
and shifting and post hoc defenses, conclusively establish pretext and that Respondent simply
was waiting for a seemingly legitimate reason to finally get rid of Smith because of his statutorily
protected activities.50
JD–78–18
22
In short, I find the General Counsel has proven that Smith’s union and Board activity was
a motivating factor for his April 2018 suspension and discharge.20 As stated, a finding of pretext
defeats any attempt by the employer to show that it would have taken the adverse employment
actions absent the employee’s statutorily protected activities. However, even if I did not find
pretext, I would conclude that Respondent has failed to meet its burden under Wright Line5
because it has presented no comparators or other evidence establishing that it would have
taken the same actions against Smith in the absence of his statutorily protected activities.
Based on the foregoing, I find that Respondent discriminatorily suspended Smith on April
9 and later discharged him on April 13 because he engaged in protected union activities, and to 10
discourage others from engaging in those activities, and because he filed charges or gave
testimony under the Act, in violation of Sections 8(a)(4), (3) and (1) of the Act.
3. Refusal to Provide Union Notice and Bargain Prior to Suspending Smith
15
The amended complaint alleges Respondent violated Section 8(a)(5) of the Act when it
failed to provide the Union with prior notice and an opportunity to bargain before it made the
discretionary decision to suspend Smith on April 9. In Total Security Management Illinois 1,
LLC, 364 NLRB No. 106 (2016), the Board held an employer has a statutory obligation to
bargain before imposing discretionary discipline on unit employees when a union has been 20
certified or lawfully recognized but has not yet entered into a collective-bargaining agreement
with the employer.21 The Board held an employer may not impose discretionary discipline of a
serious nature, which it defined as actions such as suspension, demotion, and discharge that
plainly have an inevitable and immediate impact on employee’s tenure, status, or earnings. Id.
slip op. at 4. The Board later explained the actions at issue “would typically result in loss of pay 25
or employment status, necessitating backpay and reinstatement to make affected employees
whole.” Id. slip op. at 15. One exception is that an employer may impose discipline without
providing the union with notice and an opportunity to bargain “in any situation that presents
exigent circumstances: that is, where an employer has a reasonable, good-faith belief that an
employee's continued presence on the job presents a serious, imminent danger to the 30
employer's business or personnel.” Id. at slip op. 11. This encompasses situations where “the
employer reasonably and in good faith believes that an employee has engaged in unlawful
conduct that poses a significant risk of exposing the employer to legal liability for the employee's
conduct, or threatens safety, health, or security in or outside the workplace.” Id.
35
Respondent first contends there was no obligation to bargain because Smith suffered no
loss of pay or status as a result of the suspension since he was paid for his suspension. (R. Br.
8 and 17). But Smith’s unrefuted testimony was he was only paid for April 9. (Tr. 222-223).
Therefore, Respondent’s decision to suspend Smith constitutes discipline of a serious nature

20 Respondent argues there is no evidence of “contemporaneous animus.” I reject this argument. As
stated, Respondent’s owners told Caccamo to continue monitoring Smith following his reinstatement to
find anything that he did wrong, and they continued to check in with Caccamo about Smith through the
end of Caccamo’s employment on March 30, 2018. Furthermore, even if the direct evidence of animus
demonstrated by Respondent in August, October and November 2017 was considered too remote,
evidence of animus exists from the pretextual reasons for Smith’s April 2018 suspension and discharge.
See Foothill Sierra Pest Control, Inc., 350 NLRB 26, 29 (2007) and cases cited therein.
21 There is no dispute Smith’s suspension was a discretionary decision. Respondent’s handbook
addresses discipline but does not set forth a progressive disciplinary system, there is no evidence or
contention of an established practice of suspending employees for the alleged offense(s) at issue, and
Holmes acknowledged that it was discretionary.
JD–78–18
23
under Total Security Management because it resulted in the loss of earnings for the remaining
days of his suspension.
Respondent next contends its failure to provide the Union with notice prior to suspending
Smith was justified by exigent circumstances. Setting aside Respondent’s true motivation for5
suspending Smith, which I have found to be discriminatory and retaliatory, I find there were no
exigent circumstances requiring Smith’s immediate suspension. Respondent contends that
Smith’s unauthorized contact with PINC posed “a serious imminent danger” to its business. (R.
Br. 17). Respondent failed to present evidence or argue how this was so. Williamson testified
that before he could respond to the email from PINC, DHL’s manager Joe Hunt responded to 10
PINC and communicated (again) that Kraft would be responsible for paying for the replacement
unit in truck 261, not DHL or Respondent. As such, any potentially damaging confusion
allegedly caused by Smith’s inquiry was quickly corrected, and there was no serious imminent
danger to its business.22 Furthermore, Respondent’s claim that it had to immediately suspend
Smith because of the “serious imminent danger” posed to its business and customer relations 15
rings hollow when Respondent did not immediately suspend Shane Soward after he said “Fuck
you, you little bitch” to the manager at the Pepsi/Ryder center. Instead, Williamson reassigned
Soward to finish his shift at the Kraft/DHL center and then continued to counsel him about his
conduct two days later.
20
Based on the foregoing, I find that Respondent violated Section 8(a)(5) and (1) of the Act
when it failed to bargain with the Union before it made the discretionary decision to suspend
Smith on April 9.
CONCLUSIONS OF LAW25
1. Respondent, Shamrock Cartage, Inc., 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.30
3. Respondent has engaged in unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act by suspending and later discharging employee Shane Smith, because of his
protected union activities and/or to discourage others from engaging in those activities.
35
4. Respondent has engaged in unfair labor practices in violation of Section 8(a)(4)
and (1) of the Act by suspending and later discharging employee Shane Smith, because he filed
charges or gave testimony under the Act.
5. The Union is the recognized Section 9(a) collective-bargaining representative of 40
the following unit of Respondent’s employees:

22 Respondent unilaterally suspended Smith pending an investigation. This appears to be a unilateral
implementation of the “investigatory leave” procedure contained in Respondent’s proposed memorandum
of understanding, which Respondent withdrew after the Union rejected it. Such a unilateral
implementation prior to the parties reaching an agreement or a good-faith impasse would constitute a
violation of Section 8(a)(5) of the Act, separate from a violation under Total Security Management.
However, as there is no allegation or argument, I make no findings regarding such conduct.
JD–78–18
24
All full-time and regular part-time yard spotter/hostler employees employed by
[Respondent] at the DHL facility located at 2842 Spiegel Drive, Groveport, Ohio
and at the Ryder Logistics facility located at 3880 Groveport Road, Obetz, Ohio,
excluding all office clerical employees, all professional employees, guards and
supervisors as defined in the Act.5
6. Respondent engaged in unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act when it issued a discretionary suspension to Shane Smith without providing the
Union with prior notice or an opportunity to bargain over that suspension.
10
7. The above unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
8. Respondent has not violated the Act except as set forth above.
15
9. I recommend dismissing the allegation that Respondent violated Section 8(a)(1)
of the Act by threatening Smith with the more onerous working condition of working with "bad
workers" because the Union rejected Respondent's proposal on discipline during contract
negotiations.
20
REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I shall order
it to cease and desist therefrom and to take certain affirmative action designed to effectuate the
policies of the Act.25
Respondent, having discriminatorily discharged Shane Smith because he engaged in
protected union activities and filed charges or gave testimony under the Act, shall be ordered to
offer him reinstatement to his former position, or if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any other rights or privileges previously 30
enjoyed, and to make him whole for any loss of earnings and other benefits they may have
suffered as a result of the discrimination against them. As the discharge involves a cessation of
employment, the make whole remedy shall be computed on a quarterly basis, less any interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in 35
Kentucky River Medical Center, 356 NLRB 6 (2010)
Respondent, having discriminatorily suspended Shane Smith because he engaged in
protected union activities and filed charges or gave testimony under the Act, as well as
suspended him without first bargaining with the Union, shall be ordered to offer him 40
reinstatement to his former position, or if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed,
and the make whole remedy for any loss of earnings and other benefits caused by the
suspension shall be computed in accordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Horizons, 45
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014), the Respondent shall compensate Smith for the adverse tax consequences, if any, of 50
receiving a lump-sum backpay award. In addition, in accordance with AdvoServ of New Jersey,
JD–78–18
25
Inc., 363 NLRB No. 143 (2016), the Respondent shall, within 21 days of the date the amount of
backpay is fixed either by agreement or Board order, submit and file with the Regional Director
for Region 9 a report allocating the backpay award to the appropriate calendar year for Smith.
The Regional Director will then assume responsibility for transmission of the report to the Social
Security Administration at the appropriate time and in the appropriate manner.5
In accordance with King Soopers, Inc., 364 NLRB No. 93 (2016), the Respondent shall
also compensate Smith for any search-for-work and interim employment expenses regardless of
whether those expenses exceed their interim earnings. Search-for-work and interim
employment expenses shall be calculated separately from taxable net backpay, with interest at 10
the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River
Medical Center, supra. The Respondent shall also be ordered to expunge from its files any and
all references to the discharge of Shane Smith, and notify him in writing that this has been done
and that evidence of the unlawful action will not be used against him in any way.
15
The General Counsel requests that I order a responsible management official read the
notice to the assembled employees, or to have a Board agent read the notice in the presence of
a responsible management official. I note that the Board has held that in determining whether
additional remedies are necessary to fully dissipate the coercive effect of unfair labor practices,
it has broad discretion to fashion a remedy to fit the circumstances of each case. Casino San 20
Pablo, 361 NLRB 1350, 1355-1356 (2014); Excel Case Ready, 334 NLRB 4, 4-5 (2001). This
remedy is atypical and generally ordered in situations when there is a showing that the Board's
traditional notice remedies are insufficient, such as when a respondent is a recidivist violator of
the Act, when unfair labor practices are multiple and pervasive, or when circumstances exist
that suggest employees will not understand or will not be appropriately informed by a notice 25
posting. Here, the violations are both serious and repeated, and I find the circumstances
warrant a notice reading remedy. Respondent previously entered into an informal settlement
agreement with the Board just four months before the violations at issue to resolve the
allegations arising out of the 2017 organizing effort, which specifically addressed some of the
same type of violations at issue in this case, namely continuing to discriminate against an the 30
same employee for engaging in statutorily protected activity. Additionally, I find Respondent
continued to harbor animosity toward Smith, in part, because of the prior informal settlement.
As a result, I find the traditional remedy of posting the notice to employees alone is inadequate.
On these findings of fact and conclusions of law, and on the entire record, I issue the 35
following recommended:23
ORDER24
1. Cease and desist from40
(a) Suspending, discharging, or otherwise discriminating against employees
because of their union activities and/or to discourage others from engaging in those activities;

23 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 purposes.
24 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–78–18
26
(b) Suspending, discharging, or otherwise discriminating against employees
because they filed charges or have given testimony under the Act;
(c) Issuing discretionary suspensions or discipline to unit employees that result in
the loss of pay or employment status, without bargaining with the Union;5
(d) In any like or related manner, restraining or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
10
(a) Within 14 days from the date of this Order, offer Shane Smith full reinstatement
to his former job, or if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
(b) Make whole Shane Smith for any loss of earnings and other benefits suffered as 15
a result of his unlawful suspension and discharge, including any search-for-work and interim
employment expenses, in the manner set forth in the remedy section of this Decision.
(c) Compensate Shane Smith for the adverse tax consequences, if any, of receiving
a lump-sum backpay award, and file with the Regional Director for Region 9, within 21 days of 20
the date the amount of backpay is fixed, either by agreement or Board order, a report allocating
the backpay award to the appropriate calendar years.
(d) Within 14 days from the date of this Order, remove from its files any reference to
the unlawful suspension and discharge of Shane Smith, and within 3 days thereafter, notify said 25
employee in writing that this has been done and that the discharge will not be used against him
in any way.
(e) Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated 30
by the Board or its agents, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records, including electronic copies of such records
if stored in electronic form, necessary to analyze the amount of backpay due under the terms of
this Order.
35
(f) Within 14 days after service by the Region, post at its facilities copies of the
attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional
Director for Region 9, after being signed by the Respondent's authorized representative, shall
be posted by the Respondent and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily posted. In addition to physical 40
posting of paper notices, notices shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or closed the facility involved in these 45
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
April 9, 2018.
JD–78–18
27
(g) Within 14 days after service by the Region, hold a meeting or meetings,
scheduled to ensure the widest possible attendance, at which the “Notice to Employees” will be
read to unit employees by owners Dan O’Brien and Matt Harper, or by a Board agent in the
presence of Dan O’Brien and Matt Harper. If O’Brien or Harper is no longer an owner, then
Respondent shall designate another owner or officer to conduct or be present for the reading.5
(h) Within 21 days after service by the Region, file with the Regional Director for
Region 9 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.
10
Dated, Washington, D.C., December 6, 2018.
_____________________________________15
ANDREW S. GOLLIN
ADMINISTRATIVE LAW JUDGE
01mLkVo-l-
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose a representative to bargain with us on your behalf;
• Act together with other employees for your benefit and protection;
• Choose not to engage in any of these protected activities.
WE WILL NOT discharge or otherwise discriminate against employees because of employees’
union activities and/or to discourage others from engaging in those activities.
WE WILL NOT discharge or otherwise discriminate against employees because they filed
charges or have given testimony under the Act.
WE WILL NOT issue discretionary suspensions or discipline to unit employees that results in
the loss of pay or employment status, without bargaining with the Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
WE WILL bargain with the Union regarding discretionary suspensions or discipline to unit
employees that result in the loss of pay or employment status.
WE WILL offer Shane Smith full reinstatement to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make Shane Smith whole for any loss of earnings and other benefits resulting from
his unlawful April 9, 2018 suspension and April 13, 2018 discharge, less any net interim
earnings, plus interest, plus reasonable search-for-work and interim employment expenses.
WE WILL compensate Shane Smith for the adverse tax consequences, if any, of receiving a
lump sum backpay award, and WE WILL file a report with the Social Security Administration
allocating the backpay award to the appropriate calendar quarters.
WE WILL remove from our files any reference to our unlawful April 9, 2018 suspension and
April 13, 2018 discharge of Shane Smith, and we will notify him in writing that this has been
done and that the discharge will not be used against him in any way.
WE WILL within 14 days after service by the Region, hold a meeting or meetings, scheduled to
ensure the widest possible attendance, at which the “Notice to Employees” will be read to unit
employees by owners Dan O’Brien and Matt Harper, or by a Board agent in the presence of
Dan O’Brien and Matt Harper. If O’Brien or Harper is no longer an owner, then we shall
designate another owner or officer to conduct or be present for the reading.
SHAMROCK CARTAGE, INC.
(Employer)
DATED: _____________________________ BY__________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov
John Weld Peck Federal Building, 550 Main Street, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/09-CA-219396 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (513) 684-3733.