Shamrock Foods Company

National Labor Relations Board - Board Decisions

Jun 22, 2018

366 NLRB No. 115 (N.L.R.B. 2018)

366 NLRB No. 115
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Shamrock Foods Company and Andres Contreras
and Bakery, Confectionery, Tobacco Workers'
and Grain Millers International Union, Local
Union No. 232, AFL-CIO-CLC. Cases 28–CA–
161831, 28–CA–162851, and 28–CA–165951
June 22, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
On June 10, 2016, Administrative Law Judge Keltner
W. Locke issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply brief. The Respondent filed limited
cross-exceptions with supporting argument, and the Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.

1 No party has excepted to the judge’s dismissal of the allegations
regarding the suspension and discharge of Kevin Owens or the promise
of benefits and impression of surveillance created by statements at-
tributed to David Cruz.
2 Both the General Counsel and the Respondent have implicitly ex-
cepted to some of the judge's credibility findings. The Board’s estab-
lished policy is not to overrule an administrative law judge’s credibility
resolutions unless the clear preponderance of all the relevant evidence
convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
We adopt the judge’s dismissal of the allegations that the Respond-
ent violated Sec. 8(a)(3) and (1) by removing employees Marvin
Woods and Benny Saenz from its modified duty program, and by plac-
ing Saenz on extended medical leave. In so doing, we find it unneces-
sary to rely on the judge’s finding that the General Counsel failed to
meet his initial burden under Wright Line, 251 NLRB 1083, 1089
(1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982). Even assuming that the General Counsel
met his initial burden, we would find that the Respondent met its rebut-
tal burden to show that it would have taken the same actions even ab-
sent Woods’ and Saenz’ union activity. Specifically, the record evi-
dence demonstrates that Woods and Saenz had been part of the modi-
fied duty program for extended periods, that both had reinjured them-
selves shortly before the Respondent removed them from the program,
and that both were physically unable to return to full duty. The Re-
spondent’s removal of Woods and Saenz was thus consistent with its
documented policy, which allowed employees 90 days of modified duty
during a 12-month period. See Europlast, Ltd., 309 NLRB 347, 362
(1992).
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. June 22, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Nestor M. ZarateMancella, Esq. and Sara Demirok, Esq.,for
the General Counsel.
Todd A. Dawson, Esq. and Nancy Inesta, Esq. (Baker & Hostetler
LLP), of Cleveland, Ohio, and Los Angeles, California, for the
Respondent.
Alan G. Crowley, Esq. and David A. Rosenfeld, Esq. (Weinberg,
Roger & Rosenfeld), of Alameda, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. Credited
evidence fails to establish either that the Respondent knew
about the union activities of the alleged discriminatees or the
existence of antiunion animus. Therefore, I recommend that
the complaint be dismissed in its entirety.
Procedural History
This case began on October 13, 2015, when Andres
Contreras, an individual, filed an unfair labor practice charge
against the Respondent, Shamrock Foods Company, with
Region 28 of the National Labor Relations Board, which
docketed the charge as Case 28–CA–161831.
On October 28, 2015, Bakery, Confectionery, Tobacco
Workers' and Grain Millers International Union, Local Union
No. 232, AFL–CIO–CLC (the Union) filed an unfair labor
practice charge against the Respondent. The Region docketed
this charge as Case 28–CA–162851.
On December 11, 2015, the Union filed a charge against

In adopting the judge’s dismissal of the allegation that the Respond-
ent changed its manner of enforcing its modified duty program, we rely
only on the judge's finding that the General Counsel produced insuffi-
cient evidence to support that claim.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Respondent which was docketed as Case 28–CA–165951. The
Union amended this charge on January 28, 2016.
On December 30, 2015, the Regional Director for Region 28,
acting for and pursuant to authority delegated by the Board's
General Counsel (the General Counsel), issued a complaint and
notice of hearing in Case 28–CA–161831. The Respondent
filed a timely answer.
On January 29, 2016, the Regional Director issued an order
consolidating complaint, consolidated complaint and notice of
hearing in Cases 28–CA–161831, 28–CA–162851, and 28–
CA–165951. (References below to the complaint or the
consolidated complaint pertain to this pleading.) The
Respondent filed a timely answer.
On March 8 and 11, 2016, the General Counsel filed notices
of intent to amend the complaint at hearing.
On March 15, 2016, a hearing opened before me in Phoenix,
Arizona. The General Counsel did not seek to amend the
complaint to conform to the March 8, 2016 notice of intent, but
did move to amend the complaint as specified in the March 11,
2016 notice of intent to amend. I granted that motion and the
General Counsel's motions later in the hearing to allege that
two additional individuals were Respondent's supervisors and
agents.
The parties presented evidence on March 15–18, 21–22,
2016, and, by videoconference, on April 27, 2016. After an
adjournment, the hearing resumed for oral argument by
telephone conference call on May 13, 2016. It then closed.
Admitted Allegations
In its answer and by stipulations at the hearing, the Respondent
has admitted a number of allegations raised by the complaint.
Based on those admissions, I make the findings discussed in this
section of the decision.
Respondent’s answer admits that it has received copies of the
unfair labor practice charges described in complaint paragraphs
1(a), (b), (c), and (d) but it has denied, for lack of knowledge, that
those charges were filed and served on the dates alleged.
However, the record includes a copy of each charge together with
an affidavit of service describing when and how the charge was
served. The Respondent has not challenged the accuracy of these
documents or offered any evidence to rebut the presumption of
zxdsaadministrative regularity. Therefore, I conclude that the
General Counsel has proven that the charges were filed and served
as alleged.
The Respondent has admitted that it is a corporation engaged in
the wholesale distribution of food products with an office and
place of business in Phoenix, Arizona, as alleged in complaint
paragraph 2(a). It also has admitted the commerce allegations
raised in complaint paragraphs 2(b) and (c). Based on these
admissions, I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act and that it meets the Board’s jurisdictional standards.
During the hearing, the Respondent stipulated that the Union
was a labor organization within the meaning of Section 2(5) of the
Act. I so find.
Complaint paragraph 4 alleges that certain named individuals
were, at all material times, the Respondent's supervisors within the
meaning of Section 2(11) of the Act and its agents within the
meaning of Section 2(13) of the Act. The Respondent has
admitted some but not all of these allegations. Based on the
Respondent's admissions, I find that the following individuals
were, as alleged, its supervisors and agents: Warehouse
Operations Manager Ivan Vaivao; Warehouse Manager Jeff
Vandawalker; Warehouse Supervisors Leland Scott and Anthony
Urias; and Operations Supervisor Frankie Valenzuela.
During the hearing, the General Counsel amended Complaint
paragraph 4 to allege that Leave Administrator Mary Fountain and
Human Resources Manager Heather Vines-Bright were
Respondent’s supervisors and agents. Respondent denied that
Fountain met the statutory definitions but admitted the supervisory
status of Vines-Bright. Based on Respondent’s admission, I find
that at all material times, Human Resources Manager Vines-
Bright was a supervisor of the Respondent within the meaning of
Section 2(11) of the Act and its agent within the meaning of
Section 2(13) of the Act.
The Respondent has admitted that on about October 22, 2015, it
removed its employee Benny Saenz from its modified duty
program, as alleged in paragraph 6(c) of the amended complaint.
I so find.1
Paragraph 6(d) of the complaint, as amended, alleges that about
November 30, 2015, Respondent suspended employee Kevin
Owens. Respondent has admitted suspending Owens on this date
and I so find. Additionally, based on Respondent’s further
admissions, I find that Respondent discharged Owens on about
December 4, 2015, as alleged in paragraph 6(e) of the amended
complaint.
The Respondent has admitted the allegations raised in
paragraphs 6(f) and (f)(2) of the complaint, as amended. Based on
these admissions, I find that on about January 18, 2016, the
Respondent placed employee Benny Saenz on extended medical
leave under the following conditions: (1) Saenz would not be
guaranteed a return to his former position and must apply to any
open position with Respondent for which Saenz qualifies; and (2)
Saenz’ group medical insurance would remain in effect for a 2-
month period, with the associate’s [employee’'s] share of the
monthly contribution being deducted from Saenz’ pay during that
period.2
Withdrawn Allegations
The General Counsel amended the complaint to withdraw

1 The Respondent denies the remaining allegation in complaint par.
6(c), that its removal of Saenz from the modified duty program caused
Saenz a loss of work.
2 The Respondent has denied the allegation, raised in par. 6(f)(3) of
the amended complaint, that Saenz’ extended medical leave was also
subject to a further condition. As described above, during the first 2
months of Saenz’ extended medical leave, he continued to be covered
under the group medical insurance plan and Saenz’ share of the month-
ly contribution would be deducted from his pay. Complaint par. 6(f)(3)
alleged that if Saenz were unable to return to work following the end of
this 2-month period, his group medical insurance would “remain in
effect for a period not to exceed a maximum of twelve months inclusive
of all leaves, with the entire cost of the monthly contribution being paid
by Saenz during that period.”
In addition to denying complaint par. 6(f)(3), the Respondent added
“by way of further response. . .that the associate can continue COBRA
coverage for longer than 12 months.”
SHAMROCK FOODS CO. 3
paragraph 5(a). Accordingly, I make no findings regarding the
allegations previously raised in this paragraph.
Disputed Unfair Labor Practice Allegations
The Respondent denies that it committed any unfair labor
practices and also, therefore, denies the legal conclusion set
forth in complaint paragraph 9, which states that the alleged
unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act. The unfair labor practice
allegations will be discussed below in the order they appear in
the complaint, as amended. Because the General Counsel has
withdrawn complaint paragraph 5(a), I begin with paragraph
5(b).
Complaint Paragraph 5(b)
The allegations in this paragraph concern the Respondent’s
distribution of orange “high visibility” shirts which bore the
words “We Are Shamrock.” Complaint paragraph 5(b) alleges
that, by distributing these shirts, the Respondent violated the
Act in three ways.3
More specifically, complaint paragraph 5(b) is divided into
subparagraphs alleging that the distribution of these shirts (1)
constituted an unlawful grant of benefits to employees during a
union organizing campaign to discourage them from supporting
or voting for the Union; (2) constituted an unlawful
interrogation of employees concerning their union membership,
activities and sympathies; and (3) created among employees an
impression that their union activities were under surveillance
by Respondent.
Paragraph 6(h) of the complaint, as amended, alleges that the
Respondent took these actions because its employees joined
and assisted the Union and engaged in concerted activities, and
to discourage employees from engaging in these activities.
Complaint paragraph 7 alleges that the Respondent thereby
violated Section 8(a)(1) of the Act. Respondent denies all of
these allegations.
Subparagraph 5(b)(1)
In considering the Government’s first theory of violation—
that Respondent unlawfully granted a benefit to employees
when it gave them the shirts—I will be guided by a well-
established principle: A grant of benefits made by an employer
during a union organizing campaign violates the Act unless the
employer can demonstrate that its action was governed by
factors other than the pending election.
The employer bears the burden of proving that it would have
conferred the same benefit in the absence of the union
organizing campaign. To meet this burden, the employer needs
to establish that the benefits conferred were part of a previously
established company policy and the employer did not deviate
from that policy on the advent of the union. Donaldson Bros.
Ready Mix, Inc., 341 NLRB 958 (2004).
Warehouse Manager Ivan Vaivao credibly testified that the
Respondent gave these shirts to employees to commemorate a
successful season. The shirts also furthered a policy which

3 The record establishes without contradiction that the Respondent
did distribute such shirts, so that fact is not in dispute. Controversy
arises concerning the lawfulness of this action.
Respondent had instituted earlier in the year which required
employees to wear high visibility clothing while in the
warehouse. Photographs of one such shirt are in evidence and
the bright orange color certainly would be conspicuous at a
distance.
The record includes both testimony that Respondent had
given employees shirts on many previous occasions and
photographs of such shirts. Based on this evidence, I conclude
that the Respondent did have a previously-established policy of
giving commemorative shirts to employees and that providing
them the “We Are Shamrock” shirts did not deviate from this
tradition.
Each time the Respondent issued a commemorative shirt, it
had a unique design. The only obvious differences between
those previous shirts and the “We Are Shamrock” shirts are
that, in keeping with the newlyBadopted high visibility policy,
the latter shirts invite att”" shirts are made of this different
material, that does not make them materially different from
shirts the Respondent gave employees in the past.
In sum, I conclude that Respondent's gift of the “We Are
Shamrock” shirts to employees does not deviate from its past
practice. Therefore, I conclude that the Respondent did not
unlawfully grant a benefit when it gave the shirts to employees.
Subparagraph 5(b)(2)
Complaint paragraph 5(b) further alleges that Respondent’s
distribution of the shirts to employees constituted a form of
interrogation. This theory might well be plausible in some
circumstances. For example, if the lettering on the shirt
proclaimed an antiunion message or if a supervisor told an
employee that wearing the shirt signaled opposition to the
Union, then the employee’s reaction indeed would reveal his or
her attitude about the Union. The gift would ask a question and
the employee’s acceptance or rejection of it would provide the
answer.
However, those circumstances are not present in this case.
The lettering on the shirt itself states “We Are Shamrock,” with
no reference to the Union. Moreover, credible evidence does
not establish that any supervisor ever made a statement to an
employee which identified the shirt as an antiunion symbol. In
the absence of evidence showing that employees understood, or
reasonably would understand, that the shirt signified opposition
to the Union, there is no basis to find that giving or offering to
give an employee the shirt amounted to a question in disguise.
The Government argues that “after the Union organizing
committee sprang into action in late April and early May of
2015, a group of employees began wearing orange T-shirts
around the Respondent’s Phoenix warehouse.” According to
the General Counsel, they did so to show their opposition to the
union organizing campaign. When the Respondent later gave
employees the orange “We Are Shamrock” shirts, the
Government reasons, the employees would have identified
those orange shirts with the ones worn earlier by the antiunion
employees.
To support this theory of violation, the Government must
make some showing that employees understood or reasonably
would understand that wearing an orange shirt constituted a
statement of opposition to the Union. During oral argument,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
the General Counsel cited testimony that normal attire in the
warehouse “included black or gray shirts with Respondent’s
logo.” Even if that assertion is true, it does not establish that
wearing an orange shirt carried an antiunion message. The
General Counsel further argued:
These [antiunion] employees continued wearing their own
shirts up through July. The orange T-shirts were intended to
stand out and send a message to warehouse employees that
not every employee was in favor of the organizing campaign.
This assertion constitutes argument, not evidence. The
argument’s premise—that employees who wore orange shirts
intended thereby to signal their opposition to the Union—must be
proven and not simply assumed. The General Counsel’s oral
argument continued:
Now, in an attempt to distance themselves from the
employees that used their own orange garments or orange
shirts, Respondent's supervisors testified incredibly that they
had no direct knowledge about the particular group of
employees who wore their own shirts during the night shift
that they supervised.
However, to argue that a witness “testified incredibly” is not
the same thing as offering a reason to disbelieve the testimony,
let alone evidence contradicting the testimony. The General
Counsel does argue that Supervisor Leland Scott “knew the
orange shirts worn by that group of employees were worn to
send a specific message that they were against the Union, and
they did not want to be approached.” Scott testified, in part, as
follows:
Q. When did you notice a group of loaders wearing-I
think they were like non-reflective orange shirts.
A. Right. I don't recall a specific time. You know, I
don’t know exactly when I noticed them. You know, it
was an orange shirt, so that was it.
Q. But that was before the company barbecue, right?
A. Again, I can't recall exactly when it was those guys
started wearing their orange shirts.
Q. But you know why they started wearing those
shirts, right?
A. I have my understanding, I guess. I don’t--you
know, I'm not sure. But--
Q. In fact, you talked to one of those loaders. Was it
Leo Baeza about that? Didn’t you?
A. Did I talk to Leo?
Q. Uh-huh.
A. I talked to—did I talk to Leo? I don't recall talking to
Leo.
Q. But you did talk to some of those employees about it,
right?
A. I talked to employees about wearing HiVis [high visi-
bility] shirts. That's what I talked to employees about.
The General Counsel called Leo Baeza as a witness
but did not ask him any questions about Leland Scott, and
Baeza did not testify about any conversation with Scott.
Therefore, there is no reason to doubt Scott's testimony
that he did not recall talking to Baeza.
Another person employed as a loader, Marvin Woods,
testified that he received an orange shirt from Scott, but
Woods' testimony does not suggest that Scott said any-
thing about the shirt being similar to that worn by employ-
ees who were against the Union or who did not wish to be
solicited to sign an authorization card.4 Additionally,
Woods’ testimony neither mentions any group of employ-
ees wearing orange shirts nor indicates that Woods associ-
ated wearing an orange shirt with antiunion sentiment.5
Woods’ testimony does not support the General Coun-
sel’s argument that employees understood that wearing an
orange shirt signaled that the wearer was not interested in
discussing the Union. However, Scott’s testimony does
indicate that Scott believed that to be the case. In the fol-
lowing testimony,6 Supervisor Scott refers to the orange
shirts which some employees had worn before the Re-
spondent gave out the “We Are Shamrock” shirts:
Q. BY MS. DEMIROK: They were wearing the shirts to
show that they did not support the Union, right?
A. My understanding was that they were wearing the
shirts not to be harassed. To be left alone. You know, “I
don't want to be questioned, or asked, or given anything.”
You know, “I just want to work and go home.”

4 Woods testified that in July 2015, when he returned to work after
having surgery, Scott gave him an orange shirt and said “You didn’t
make it to the meeting, so you should try—you should put this on. You
basically should wear this.”
5 Woods began work for the Respondent in August 2013. Presuma-
bly, he would have been aware of any widespread belief among em-
ployees that wearing an orange shirt carried an antiunion connotation.
Woods supported the Union and the complaint alleges that Respondent
discriminated against Woods in violation of Sec. 8(a)(3) of the Act.
Therefore, it would have been in his interest to give testimony suggest-
ing that the orange “We Are Shamrock” shirts manifested an antiunion
motive. Moreover, he testified on behalf of the GeneralCounsel, who
presumably would have tried to elicit such testimony if it were true.
The fact that Woods did not give such testimony must be considered in
deciding whether employees believed that wearing an orange shirt
signified an antiunion attitude.
6 In weighing the import of this testimony, it may be noted that here
I am considering the General Counsel’s theory that giving out the shirts
constituted interrogation, not the theory that they were a grant of bene-
fit, discussed above, and not the theory that this action created an im-
pression of surveillance, discussed below. To establish that giving an
orange shirt to an employee amounted to asking the employee about his
union sympathies, the Government necessarily must show that the
recipient believed, or reasonably would believed, that the shirt con-
veyed a message about the Union and that wearing the shirt would
manifest approval of that message.
More exactly, the General Counsel does not have to prove that any
particular employee receiving the shirt held such a belief, but only that
such a belief was common enough among employees that it would be
reasonable for a typical employee to associate an orange shirt with an
antiunion message which would be endorsed by wearing it. Supervisor
Scott did not explain how he came to believe that employees who had
worn orange shirts were thereby signaling that they did not wish to be
bothered about the Union. Therefore, his testimony sheds no light on
how employees regarded the shirts.
SHAMROCK FOODS CO. 5
Q. Harassed by Union’s organizers, right?
A. By anybody. You know, they’re —they just want
to do their job and go home. That's it.
Q. Well, there was a lot of talk about harassment in the
warehouse, but that was in terms of employees getting ap-
proach to sign union cards, right?
A. I don’t know specifically. All I know is that they
just wanted to say hey, I'm here to work and I don't want
to be bothered. So whether that was by either side, I don’t
know.
Q. But those employees didn't support the Union,
right?
A. Again, I don’t ask anybody. I don’t know.
This testimony does indicate that at least one supervisor,
Scott, believed that the employees who had come to work in
orange shirts were thereby announcing ”don't bother me.”
However, the Government must prove that employees believed
that the workers who had worn those orange shirts were
signaling their lack of interest in signing a union authorization
card or talking about the Union. The complaint alleged, the
Respondent has admitted and I have found that Scott is a
supervisor, not an employee. His testimony about his own
belief does not suffice. Moreover, his testimony does not
reveal the source of that belief.
Only if an employee had such a belief and only if he
believed that other employees shared it, would his eagerness or
reluctance to accept the gift of a shirt reveal anything about his
support or lack of support for the Union. Only then would the
presentation of a shirt put him “on the spot” and force him to
reveal how he felt about the Union.
To be precise, the General Counsel must show that
employees reasonably would believe that wearing a “We Are
Shamrock” shirt, one of the shirts given out by the Respondent,
signaled lack of support for the Union. Proving that employees
believed that the earlier orange shirts conveyed such a message
would not establish that employees held the same belief about
the “We Are Shamrock” shirts. Respondent had a long practice
of giving commemorative shirts to its employees and in each
instance the shirt bore a design and colors different from its
predecessors. Because of this tradition, employees would not
regard receiving a free shirt as unusual. Moreover, because the
lettering on the “We Are Shamrock” shirts said nothing about
the Union, it cannot simply be assumed that employees would
associate these shirts with the union organizing campaign.
The General Counsel disputes that the “We Are Shamrock”
shirts were “commemorative” shirts like those given in the past.
To distinguish the “We Are Shamrock” shirts, the Government
points to timing. At a barbecue for employees on June 4, 2015,
the Respondent had given employees hats with the lettering
“Shamrock Pride” but it did not give them the “We Are
Shamrock” shirts until a month later.
However, the record does not establish that the Respondent
had a practice of only giving out commemorative shirts at a
June barbecue. Employees reasonably would regard the shirts
as commemorative even though they received them a month
later.
The General Counsel also argues that the Respondent did not
have to give the employees orange shirts because, as
subpoenaed documents indicate, another color was available.
During oral argument, the Government inferred much from the
Respondent’s insistence onn the color orange.
Now, Respondent claims that the orange color was just a
coincidence and that it was the only color availablein the
HiVis and DriFit option from the supplier. Thius is in
transcript 969. Hoiwever, email messages between the
Respondent and the shirt supplier contradicts the
Respondent’s claim and demonstrates that orange was not the
only color available. And this is in Genral Counsel’s
Exhibits 18 and 19. Notably, Respondents specifically
requested organge shirts, and explained in an email that, we
want HiVis7 orange, not green.
General Counsel’s citation of transcript page 969 refers to part
of the testimony of Respondent’s warehouse operations manager,
Ivan Vaivao. The General Counsel attributes to Vaivao a
statement that orange was “the only color available in the HiVis
and DriFit option from the supplier.” (I have italicized “and” to
make clear that Respondent had two conditions, both of which had
to be satisfied: The shirt must be high visibility and it also must
be Dri-Fit.)
In other words, the General Counsel interprets Vaivao’s
testimony to say that Respondent purchased orange shirts
because the only shirts available which satisfied both
conditions—high visibility and Dri-Fit—were orange. Then,
the General Counsel cites two documents to disprove this
claim. According to the Government, these emails establish
that the vendor also had green shirts which were both high
visibility and Dri-Fit.
However, I do not understand Vaivao’s testimony to mean
what the General Counsel asserts. The cited transcript page
includes the following:
BY MR. DAWSON: Okay. And why was it, why did the
company buy orange?
A. We wanted, the reason why was [Operations Man-
ager] Jerry [Kropman] wanted a comfortable shirt and our
vendor didn't have the DriFit in the other colors so that's
the reason why we got the DriFit. The reason why it was
orange is because we wanted a shirt for what it was in-
tended for. Right? There's a date line, there's a time line
that we wanted the shirts for. That was the quickest that
we could get those shirts in that DriFit material.
One part of this confusing testimony—“our vendor didn't
have the DriFit in the other colors”—does seem to accord with
the General Counsel’s interpretation. It appears to be an
explanation for why the Respondent bought orange shirts. But
there is a problem.
After hearing Vaivao state that the vendor did not have the
DriFit shirts in other colors, one naturally would expect him to
complete the sentence with the words “therefore we bought

7 High visibility.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
orange shirts.” However, Vaivao did not finish the sentence in
that logical way but instead said “that's the reason why we got the
DriFit.” Whatever that sentence might mean, it does not say that
Respondent bought orange shirts because that was the only high
visibility color available in DriFit.
Could Vaivao simply have mispoken? Might he have
intended to say “that’s the reason why we got orange” but, due
to nervousness or some other reason, have substituted the word
“DriFit” instead? That seems unlikely because, in the next
sentence, he offers an explanation for purchasing orange shirts.
Presumably, he would not have given this explanation for the
color if he had already provided an explanation for the color.
In sum, I conclude that Vaivao did not say that Respondent
bought orange shirts because the only available high visibility
DriFit shirts were orange. Therefore, I do not find that the
emails contradicted or impeached his testimony.
The emails do establish that the vendor notified Respondent
that it could purchase high visibility shirts in either green or
orange and that Respondent replied that it wanted orange.
However, the emails fall short of demonstrating that both the
orange and green shirts were DriFit.
Moreover, I hesitate to read too much into the Respondent’s
desire to buy orange shirts rather than green. The Respondent
might have preferred the color orange for any number of
reasons unrelated to the union organizing drive and no evidence
establishes that this campaign affected the choice of color.
As noted above, credible evidence falls short of establishing
that some employees in the warehouse wore orange shirts to
signal that they did not want to be solicited on behalf of the
Union. However, even assuming for the sake of analysis that
some employees did wear orange shirts for this reason, no
evidence establishes that the managers who chose the “We Are
Shamrock” shirt color even knew about it.
The Government's theory involves a claim that warehouse
employees had worn orange shirts to signal that they did not
wish to be bothered about the Union and also the claim that
management chose orange for its “We Are Shamrock” shirts so
that employees would associate those shirts with the putatively
antiunion orange shirts. It has failed to carry its burden of
proving either claim.
The General Counsel's theory of violation—that giving
employees orange shirts constituted unlawful interrogation B
also involves another factual question: Would employees
reasonably believe that accepting and wearing a “We Are
Shamrock” shirt expressed a sentiment for or against the
Union?
Leland Scott’s testimony, quoted above, establishes that he
believed employees had worn orange shirts to signal “don’t
bother me” during the union organizing campaign. However,
Scott is a supervisor, not an employee, so his own views do not
resolve the issue of what employees thought.
One employee, Kevin Owens, referred to the “We Are
Shamrock” shirts as “shirts for people that are anti-Union.” He
testified, in part, as follows:
Q. Now, Mr. Owens, you stated that you overheard
other employees talking about shirts. Did you ever go to
anyone specifically to talk about these shirts?
A. It was a Monday, I was on the loading dock, I got
tired of hearing people's ideas of the shirt. So I went and
asked—I asked floor captain David Cruz, are these shirts
intended for people that are anti-Union. No one was
around. He said yeah. I asked where could I get some.
He sent me to Cory Pedroza's office on the loading dock.
I asked Cory if he had some. He said no. He walkie-
talkied Leland Scott on the walkie talkie and asked if he
had any more of these shirts. Leland Scott said yes, send
him up to the conference room where the supervisors of-
fices are. It's a—the dock—the loading dock is like where
all —where they load all the trucks and all that stuff.
Cruz denied telling any employee that the “We Are
Shamrock” shirts were for antiunion employees. Therefore, I
must resolve the conflict in the testimony by deciding which is
more reliable.
In assessing whether a particular witness has given
trustworthy testimony, it is appropriate to consider whether any
part of his entire testimony has been contradicted by other
evidence. Proof that one part of the testimony is inaccurate
raises questions about the remainder of the testimony.
Such a contradiction does appear in a portion of Owens’
testimony not related to that quoted above, but the inaccuracy
does cast doubt on the reliability of the quoted testimony. The
problematic, doubt-producing testimony concerns events on
October 11, 2015, which resulted in Owens receiving a
disciplinary warning 2 days later.
On direct examination, Owens testified that Cruz had
instructed him to go to a different department to perform work,
that he went there, saw that no work was being done and left.
However, on cross-examination, Respondent’s counsel showed
Owens the affidavit Owens had given during the unfair labor
practice investigation:
Q. No? Okay. Now let’s talk, too, about that disci-
pline that I think was General Counsel Exhibit 30, right?
And I think you testified that that—you were given that
because Cruz asked you to go to a different department,
right?
A. Yes.
Q. That's not what you told the Board, is it? Is that
true, you didn't tell the Board that, did you?
A. Yeah, it came from David Cruz.
Q. You did? Okay. Well, let me show you page 8,
paragraph 22 of your affidavit. It says, “In about Septem-
ber/October I was written up for insubordination after
Scott told me to go to a different area?” Did I read that
correctly?
A. Yes, you did.
Additionally, there is another inconsistency in Owens’
testimony. It concerns the reason why, at another time, he
threw away 71 shipping labels. This matter will be discussed
below in connection with the allegations raised in complaint
paragraphs 6(d) and (e) concerning Owens’ suspension and
discharge.
These specific inconsistencies buttress my overall
impression that Owens was somewhat partisan as a witness.
SHAMROCK FOODS CO. 7
However, I do not have similar reservations about Cruz’
testimony. Therefore, to the extent that Owens’ testimony
conflicts with that of Cruz, I credit Cruz. Accordingly, I find
that Cruz did not tell any employee that the “We Are
Shamrock” shirts were for employees who opposed the Union.8

8 Because the General Counsel has not proven that Cruz made the
statement which complaint par. 5(c) alleges that he made, it is not nec-
essary to reach the issue of whether Cruz is Respondent’s supervisor or
agent. However, in case the Board should disagree with my finding
that Cruz did not make the statement, and also because Cruz’ status is
relevant to other complaint allegations, I will address here the allega-
tion, denied by Respondent, that Cruz meets the statutory definition of
supervisor.
The Act defines “supervisor” to mean “any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature, but requires the
use of independent judgment.” See 29 U.S.C. § 152(11).
Thus, to warrant a conclusion that a particular person meets the statuto-
ry definition of supervisor, the evidence must establish three elements: (1)
That the individual had authority to perform one of the functions listed in
the statute; (2) that the individual exercised this authority in the interest of
the Employer, and (3) that the exercise of such authority is not of a merely
routine or clerical nature but requires the use of independent judgment.
In his work as a “crossBdock captain” (sometimes referred to simply as
“captain”), Cruz performs various tasks to assure that trucks are loaded
efficiently and quickly. He described them as follows:
Q. Could you describe for us what your duties are as a cross
dock captain?
A. Yes. To make sure the pickers don’t fall behind, the
throwers don't fall behind and make sure that I get the cases to a
truck before their departure time.
Q. Can you explain what you mean by to make sure that
throwers and pickers do not fall behind?
A. Yeah. If an area, if a certain area is falling behind and an-
other area is ahead, I have to move bodies from one area to the
other.
Q. Do you do this regularly during the course of your work-
day?
A. Yes.
Q. And about how many times do you do this every day?
A. I don’t recall.
. . . .
Q. And, Mr. Cruz, how do you go about ensuring that pickers and
throwers don’t fall behind?
A. I have to move pickers from one area to the other if they’re fall-
ing behind.
Q. And is this a decision that you need to make on the fly?
A. Yes.
However, Cruz also testified that he performs the same work as oth-
er employees, picking and throwing cases, and never worked without a
supervisor being present. Additionally, Cruz testified that he did not
have authority to hire, suspend, lay off, recall, promote, discharge,
discipline, reward, grant or approve time off, call someone in to work,
or send an employee home. The record also does not establish that
Cruz could effectively recommend such actions.
Sometimes, Cruz did direct employees in their work and presumably
he did so in the interest of Respondent. However, the General Counsel
also bears the burden of proving that Cruz’ direction of employees was
not of a merely routine or clerical nature but required the use of inde-
pendent judgment. The record does not establish that Cruz’ direction of
No credible evidence establishes that any of Respondent’s
supervisors or agents made a statement to employees that
reasonably would lead them to believe that the “We Are
Shamrock” shirts were “for people that are anti-Union.” I find
that they did not.
Based on the entire record and particularly the testimony of
Warehouse Operations Manager Vaivao, which I credit, I find
that the Respondent gave “We Are Shamrock” shirts to all
employees who wanted them, did not deny any employee’s
request for a shirt and did not prohibit any employee from
wearing a shirt. Applying an objective standard and
considering the totality of circumstances, and notwithstanding
Owens’ subjective impression that these shirts were “for people
who were anti-Union,” I find that an employee would not
reasonably believe that accepting or wearing a “We Are
Shamrock”would express an opinion about that employee’s
union sentiments.
Because an employee would not reasonably believe that
accepting or wearing a “We Are Shamrock” shirt would signify
opposition to the Union and similarly would not reasonably
believe that rejecting or failing to wear the shirt would signify
support for the Union, the employee’s decision to accept or
decline the shirt would not be based on his sentiments for or
against the Union. Therefore, his choice to accept or reject the
shirt would not reveal to anyone else how he felt about the
Union.
Since how the employee reacted to being given or offered the
shirt would not reveal his union sympathies or antipathies, giving
or offering to give him a shirt would not constitute asking the
question. Therefore, I conclude that no interrogation took place.
In view of my finding that there was no interrogation, it isn’t
necessary to consider whether the alleged interrogation was lawful
or unlawful. However, in case the Board should reject my finding
that no interrogation took place, I will analyze the facts using the
Board’s framework for determining whether questioning was or
was not coercive.
In deciding whether interrogation is unlawful, I am guided by
the Board’s decision in Rossmore House, 269 NLRB 1176 (1984).
In that case, the Board held that the lawfulness of questioning by
employer agents about union sympathies and activities turned on
the question of whether “under all circumstances, the interrogation
reasonably tends to restrain or interfere with the employees in the
exercise of rights guaranteed by the Act.” The Board in Rossmore
House noted that the test used by the court in Bourne Co. v.
NLRB, 332 F.2d 47 (2d Cir. 1964), was helpful. The Bourne
analysis examines the following factors:

other workers was other than routine and I cannot conclude that he
exercised independent judgment. Accordingly, were I to reach the
issue of Cruz’ supervisory status, I would find that he did not meet the
statutory definition.
Further, the record does not establish that the Respondent took any ac-
tion to make Cruz its agent or to create the appearance that Cruz was acting
as its agent. Considering that Cruz performed the same work as other
employees, in addition to the special duties assigned to a “captain,” I con-
clude that employees reasonably would not believe that Cruz was speaking
or acting for Respondent. Therefore, I further conclude that Cruz was not
an actual or apparent agent of Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
1. The background, i.e., is there a history of employer
hostility and discrimination?
2. The nature of the information sought, e.g., did the
interrogator appear to be seeking information on which to
base taking action against individual employees?
3. The identity of the questioner, i.e., how high was he
in the Company hierarchy?
4. Place and method of interrogation, e.g., was em-
ployee called from work to the boss's office? Was there an
atmosphere of ``unnatural formality''?
5. Truthfulness of the reply.
The first factor concerns whether there is a history of
employer hostility to unions or of discrimination against union
supporters. In Shamrock Foods Co., JD(SF)–05–16 (Feb. 11,
2016), the Hon. Jeffrey D. Wedekind, Administrative Law
Judge, found that the Respondent committed numerous
violations of Section 8(a)(3) and (1) of the Act. The General
Counsel has moved that I take judicial notice of this decision
but, for reasons discussed below, I decline to do so. See St.
Vincent Medical Center, 338 NLRB 888 (2003) (Board
declined to take judicial notice of administrative law judge’s
decision pending on review).
Although I do not take notice of Judge Wedekind’s decision,
pending before the Board, it clearly is appropriate to take notice of
the Board's published decisions. In Shamrock Foods Co., 337
NLRB 915 (2002), the Board found that the Respondent
unlawfully had discharged an employee and also had engaged in
unlawful interrogation of employees. Because this conduct took
place rather long ago, in 1998, I give it limited weight.
The second Rossmore House factor concerns the nature of the
information sought. Here, that would appear to be the employee’s
union or antiunion sentiments. However, the record does not
establish that the information was being sought so that disciplinary
action could be taken.
The third and fourth Rossmore House factors concern the
identity of the questioner and the place and method of
interrogation. The record indicates that most employees received
the shirts at a meeting but it is sketchy concerning the location of
the meeting and who spoke. Employee Marvin Woods testified as
follows:
Q. BY MS. DEMIROK: Were you ever given any other
kind of apparel that you were—you could wear at the
warehouse?
A. Yes, ma’am. I came back from my surgery as of
June— July 10, 2015.9 And when I was getting ready to
get all my apparel to where I can go back in the warehouse
and work around, Leland Scott was the one who issued me
an orange shirt. On the back of it, it said, “Shamrock. We
care.” And he— his exact words were, “You didn't make
it to the meeting, so you should try—you should put this
on. You basically should wear this.”
Q. Okay. And where were you when this happened?

9 Woods’ further testimony clarified that he actually underwent sur-
gery on July 10, 2015, and returned to work later that month.
A. I was actually upstairs, where the supervisors and
the inventory's office combine.
Leland Scott is a first-line supervisor rather than a
management official. The record does not indicate that Woods
was in the office of any management official. For Woods, I
conclude that the third and fourth Rossmore House factors
weigh against finding a violation.
Most other employees received their shirts at a meeting but
the record reveals little about it. The General Counsel bears the
burden of proving that an interrogation was unlawful. In the
absence of specific evidence concerning who conducted the
meeting at which the shirts were distributed, and where that
meeting took place, I conclude that the third and fourth factors
weigh against finding a violation.
The fifth Rossmore House factor, the truthfulness of the
reply, appears to be inapplicable. Under the Government’s
theory, an employee who wore the shirt would thereby reveal
opposition to the union organizing campaign and an employee
who declined the shirt would indicate by his conduct that he
supported the Union. Accepting this theory for the purpose of
analysis, an employee presumably could tell a nonverbal “lie”
by wearing the shirt even though he favored the Union. The
present record, however, does not reveal whether any employee
actually engaged in such prevarication by attire.
Weighing all these factors together, were I to apply a
Rossmore House analysis to the alleged interrogation, I would
conclude that it was not coercive and did not violate the Act.
However, for the reasons discussed above, I find that giving the
“We Are Shamrock” shirts to employees did not constitute
interrogation at all.
Subparagraph 5(b)(3)
Complaint paragraph 5(b) also alleges, in subparagraph 3
that giving the shirts to employees created the impression that
Respondent had placed their union activities under surveillance.
The General Counsel explained this theory during oral
argument:
Now, by distributing the orange shirts, orange high visibility
shirts with the message “We Are Shamrock” in large, black
letters, Respondents [sic] engaged in surveillance of
employees’ union activities by being able to find out or to see
who actually supported the company as opposed to the Union,
and created the impression that such activities were under
surveillance. Here, employees would [reasonably] believe
that by location of the shirts and the simple fact of wearing the
shirts was an obvious signal about who supported the Union,
the supervisors were taking note of who was engaging in
activity. Thus, employer’s conduct likely created the
impression of surveillance in violation of Section 8(a)(1) of
the Act, and we urge Your Honor to find so.
This argument rests on Owens’ testimony, which is quoted
above under the heading for complaint subparagraph 5(b)(2).
For reasons discussed above, I do not credit Owens’ testimony
SHAMROCK FOODS CO. 9
but rather credit Cruz’ denial that he made such statement.10
In other respects, the record does not support a finding that
the Respondent denied a shirt to any employee who requested
one. Likewise, the record provides no basis to conclude that
Respondent asked any employee about his or her union
sentiments before giving that person a shirt. I find that the
Respondent gave shirts to all employees who wanted them
without regard to the employee’s support or opposition to the
Union.
The central allegation in complaint paragraph 5(c) is that the
Respondent told employees that the shirts were only available
for employees who did not support the Union. Two
subparagraphs follow, each of which alleges that the
Respondent’s action—telling employees that shirts were only
available to employees who did not support the Union—
constituted a particular type of violative conduct.
Subparagraph 5(c)(1) alleges that this statement was a promise
of benefits and subparagraph 5(c)(2) alleges that it created an
impression of surveillance.
Clearly, the Government must prove that Respondent told
employees that shirts were only available to employees who did
not support the Union, as a necessary predicate to the allegations
in the two subparagraphs. However, the evidence fails to establish
that the Respondent made any such statement. Therefore, I
recommend that the Board dismiss complaint paragraph 5(c) in its
entirety.
Complaint Paragraph 6(a)
Paragraph 6(a) of the complaint, as amended, alleges that
about October 20, 2015, the Respondent changed the manner in
which it enforced its modified duty program. The Respondent
denies this allegation and the allegation, set forth in complaint
paragraph 6(g), that it took such action because its employees
had joined and assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in these
activities, as alleged in complaint paragraph 6(h). The
Respondent also denies the conclusion in complaint paragraph
8 that, by engaging in the alleged conduct, it violated Section
8(a)(3) and (1) of the Act.
During oral argument, the General Counsel grouped this
allegation with those raised in complaint paragraphs 6(b), (c),
and (f), stating that they “all relate to Respondent’s unlawful
conduct in removing Marvin Woods and Benny Saenz from
modified duty and placing Mr. Saenz on extended medical
leave.” In standard pleading practice, each complaint
paragraph will refer to specific conduct that is different from
the conduct described in other complaint paragraphs, or else, if
it refers to the same conduct as another paragraph, it will allege

10 Even were I to credit Owens’ version, which I do not, it would es-
tablish only that Owens asked “are these shirts intended for people that
are anti-Union” and Cruz said, “yeah.” That one-word answer hardly
amounts to the message described in complaint paragraph 5(c). That
complaint paragraph alleges that Cruz told employees that the shirts
were only for employees who did not support the Union. However,
Owens merely asked Cruz if the shirts were for employees who were
antiunion, not if the shirts were only for such employees. The answer
Owens attributed to Cruz, “yeah,” does not amount to a statement that
the shirts were exclusively for employees who opposed the Union.
some alternate theory of violation. So, it would be reasonable
to assume that complaint paragraph 6(a) pertains to some action
which is not the subject of complaint paragraphs 6(b), (c), or
(f). However, the General Counsel’s argument has not
identified any such alleged conduct.
It also would be reasonable to read the language of
complaint paragraph 6(a), which alleges a change in the manner
of enforcing the extended medical leave policy, as meaning
some across-the-board change affecting all employees or at
least all employees in a particular group. This sort of change
would be proven with evidence showing how the policy had
been enforced in the past and other evidence showing some
deviation from that practice. However, the Government has not
presented this kind of evidence.
A judge should be very careful before concluding that a
complaint paragraph merely duplicates other allegations and
neither refers to different facts nor to a different legal theory.
Yet, that appears to be the case with respect to complaint
paragraph 6(a). Therefore, I recommend that the Board dismiss
this allegation.
Complaint Paragraph 6(b)
Paragraph 6(b) of the complaint, as amended, alleges that
about October 20, 2015, Respondent removed its employee
Marvin Woods from its modified duty program, thereby
causing a loss of work for Woods. Respondent admits that it
removed Woods from the modified duty program but denies
that this action caused Woods to lose work.
The Respondent denies that it removed Woods from the
modified duty program because he had joined and assisted the
Union and engaged in concerted activities, and to discourage
employees from engaging in these activities, as alleged in
complaint paragraph 6(g). The Respondent also denies that the
removal of Woods from the modified duty program violated
Section 8(a)(3) and (1) of the Act, as alleged in complaint
paragraph 8.
Marvin Woods began working for Respondent on August 10,
2013. After working in the inventory department for about a year,
he became a loader in the warehouse. After Woods suffered an
ankle injury, Respondent placed him on modified duty status as of
March 8, 2015. Respondent's employee handbook describes the
modified duty program in part as follows:
Modified Duty Program
Shamrock values our associates and will make reasonable
efforts to accommodate physician-imposed work restriction(s)
for associates who are temporarily unable to perform the
essential functions of their regular duties, due to a work or
nonwork related injury or Illness. Remaining active and
feeling productive, through an effective modified duty
program, has been proven to reduce the recovery period
following accidents, enabling the injured person to resume all
of their normal activities more quickly.
Modified duty is a limited term assignment, designed to
accommodate an associate recovering from an injury or
Illness. The availability and duration of modified duty
assignments will be governed by the needs of the business
and decisions regarding specific assignments will be made on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
a case-by-case basis.
After listing criteria for determining who qualifies, the
handbook continues with this description of the duration of
modified duty:
Typically, a modified duty assignment will not exceed an
aggregate of 90 days, accumulated over a 12-month period
from the date of the injury or illness. Should additional
modified duty be recommended by a treating physician, a
decision on whether to continue to offer such an
accommodation will be made after consideration of
Shamrock's business needs, the projected, continued duration
of the medical restrictions, the overall performance of the
individual (e.g. attendance, quality of work, productivity,
etc.), the potential impact on the department, and other related
issues. Any extension beyond the ninety (90) day period must
be approved by Human Resources.
Although the employee handbook specified that typically, a
modified duty assignment would not exceed 90 days in a 12-
month period, Woods actually remained on modified duty for
more than twice that long. He began the modified duty on
March 8, 2015, but did not return to regular duty until October
12, 2015, after his physician lifted the work restrictions.
However, Woods reinjured his ankle on October 15, 2015.
The Respondent allowed him to work 3 days on modified duty.
Then, a human resources manager notified him that he should
not return to work until his status was changed to full duty.
This action, not allowing Woods to remain on modified duty,
constitutes the alleged violation.
Worker Compensation Claims Manager Jamie Keith made
the decision that Woods no longer would be assigned modified
duty. Based on my observations as she testified, I conclude that
Keith was forthright. Moreover, Keith no longer worked for
the Respondent at the time she testified and therefore had little
interest in the outcome of this proceeding. Therefore, I credit
and rely on her testimony.
The complaint alleged that, during the material time period,
Keith was the Respondent’s supervisor within the meaning of
Section 2(11) of the Act. The Respondent has denied this
allegation. However, it is not necessary to resolve the
supervisory issue. Keith credibly testified that she made the
final decision to remove Woods from modified duty status and
no evidence contradicts that testimony. I find that when she
made this decision, she was acting as the Respondent’s agent.
Keith testified that she decided to remove Woods and
another employee, Benny Saenz, from modified duty because
“medically, they were not getting better.” With respect to
Woods, she noted that he had been on modified duty for more
than 90 days and then, shortly after returning to full duty, had
“reinjured himself.” She further explained:
Q. Okay. But you did say that going back to full duty
was an indication that he was progressing?
A. Yeah.
Q. In the positive way, right?
A. So that was great to get that fullBduty release. But
then when he was back a day, got reinjured and back to
sedentary work only, again, his recovery went backwards
instead of forward.
The General Counsel argues that the Respondent refused to
allow Woods to stay on modified duty because of Woods’
union activities. Woods testified that at times during
September and October 2015, he handed out union flyers in the
break rooms at work. He also collected union authorization
cards.
However, Keith, who made the decision to end Woods’
modified duty, testified that she was unaware that he had engaged
in any union activity. For the reasons discussed above, I believe
that Keith is a reliable witness. Additionally, no other evidence
contradicts her testimony that she did not know about Woods’
union activity. Therefore, I credit her testimony.
It is appropriate to analyze these facts using the framework
which the Board established in Wright Line, 251 NLRB 1083,
1089 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Under the Wright Line test, the
General Counsel has the initial burden of establishing that
employees’ union activity was a motivating factor in the
Respondent’s taking action against them. The General Counsel
meets that burden by proving union activity on the part of
employees, employer knowledge of that activity, and antiunion
animus on the part of the employer. See Willamette Industries,
341 NLRB 560, 562 (2004) (citations omitted). If the General
Counsel makes this initial showing, the burden then shifts to the
Respondent to prove as an affirmative defense that it would have
taken the same action even if the employees had not engaged in
protected activity. Id. at 563; Manno Electric, 321 NLRB 278,
280 fn. 12 (1996). See El Paso Electric Co., 350 NLRB 151
(2007).
The General Counsel has established the first element. Woods
credibly testified that he passed out union flyers and collected
signed union authorization cards.
However, the Government has not proven the second
element. The record does not establish that the Respondent
knew about Woods’ union activity. During oral argument, the
General Counsel stated:
Now, Respondent will argue, as it did, it brought up all their
low-level supervisors. They all denied knowing about any of
the Union activity, any of the individual Union activity in the
warehouse. But, Your Honor, it's just not believable. Mr.
Vaivao, he's the head of the warehouse, he testified pretty
directly on this. When he was asked what he knew about the
organizing campaign at the warehouse, he said he knew about
it. What did he know about that? He said that he knows that
there’s guys on the floor that talk about the Union to be
unionized. And when asked whether or not he knew who the
organizers are, he admitted it. He said he knew this because
it's out now, quote and, quote, it's public knowledge now.
Warehouse Operations Manager Vaivao did admit that, at
one point, he had received reports about the union organizers.
He testified, in part, as follows:
Q. And you know who the organizers are, don't you?
A. Yes.
SHAMROCK FOODS CO. 11
Q. And you know this because associates, they've told
you who's organizing, right?
A. Correct. And it's out now. It's public knowledge
now.
However, Vaivao did not name the individuals he believed to
be union organizers and there is no reason to assume that he
considered Woods to be an organizer. Here, the General
Counsel bears the burden of proving that the Respondent knew
about Woods’ union activities, not merely that it knew that
some unnamed employees were involved in an organizing
campaign. Vaivao’s testimony does not establish that he knew
about Wood’s union activities and the record does not establish
that any other supervisor knew about Woods’ involvement.
Moreover, Vaivao did not make the decision to remove Woods
from modified duty. Keith made that decision. She credibly
testified that she did not know about Woods’ union activities.
Therefore, I conclude that the General Counsel has not established
the second Wright Line element.
The Government also has not established the third Wright Line
factor, the existence of antiunion animus. In seeking to prove
animus, the General Counsel argues that I should take notice of
Judge Wedekind’s decision in another case. As discussed above,
Judge Wedekind’s decision now is pending before the Board.
Because the Board has not yet ruled on it, I do not believe that
taking judicial notice of it would be warranted.
During oral argument, the General Counsel advanced another
reason to take notice of Judge Wedekind’s decision. This
argument relates to the Government’s initial showing under
Wright Line and, more specifically, what proof of animus suffices.
The General Counsel noted that the “General Counsel’s burden is
not to show that there was particularized animus towards the
individual, the employees who are at issue, their union activity or
their other protected activity. We need only show that there is a
generalized animus.” Up to this point, the argument simply
describes Board precedent and raises no eyebrows, but the
General Counsel continued as follows: “And, again, that's one of
the major factors in why administrative notice should be taken to
the prior decision.”
The government appears to be saying that a “major factor” in
favor of noticing Judge Wedekind’s decision is the relatively light
burden of proof the General Counsel must carry to satisfy the
proof-of-animus requirement. The logic of that proposition is not
self-evident. It would have been helpful for the Government to
have explained why it would be appropriate to consider the
General Counsel’s Wright Line burden in deciding the judicial
notice issue.
Additionally, if the fire of animus found in a past case
continued to burn, there would be at least a flicker of it in the
present record. However, in the record before me, I find no
manifestation of animus, not even a cinder too spent and cold to
ignite discrimination.
Yet, the dispositive reason for declining to take notice of Judge
Wedekind’s decision is that it remains pending before the Board.
Taking notice of the prior decision is different from taking notice
of a fact, for example, taking notice that the Board has its
headquarters in the District of Columbia. People generally agree
on such a fact and it is independently verifiable. By comparison,
taking notice of another judge’s decision is to notice his findings
of fact, which are based in part on the judge’s credibility
decisions. While I certainly would have no reason to doubt those
findings, I believe that taking notice of them before the Board has
ruled would be both premature and presumptuous. Therefore, I
will not.
The General Counsel also argues that I should infer animus
from the timing. Woods handed out union flyers in September
and early October 2015 and was removed from modified duty
around October 20, 2015. However, if anything, the timing of
events would support a conclusion that animus did not play a part
in the decision.
Woods returned from modified duty to full duty on October 15,
2015, and almost immediately reinjured his ankle. Keith took this
reinjury into account when, 4 days later, she decided not to allow
Woods to remain on modified duty. Moreover, this decision was
fully consistent with the Respondent’s established policy of
allowing employees 90 days of modified duty in a 12-month
period. In 2015, Woods actually had been on modified duty for
more than twice as much time.
Because the government has not proven either employer
knowledge or animus, I recommend that the Board dismiss the
allegations related to complaint paragraph 6(b).
Complaint Paragraph 6(c)
Paragraph 6(c) of the complaint, as amended, alleges that
about October 22, 2015, Respondent removed its employee
Benny Saenz from its modified duty program, thereby causing
a loss of work for Saenz. The Respondent admits that it
removed Saenz from the modified work program but denies
that it caused Saenz to lose work.
The Respondent denies that it removed Saenz from the
modified duty program because he had joined and assisted the
Union and engaged in concerted activities, and to discourage
employees from engaging in these activities, as alleged in
complaint paragraph 6(g). Additionally, the Respondent denies
that its removal of Saenz from the modified work program
violated Section 8(a)(3) and (1) of the Act, as alleged in
complaint paragraph 8.
Saenz began working for Respondent, as a warehouse
employee, in about July 2010. At some point, he suffered an
injury and, as a result, the Respondent placed him on modified
duty. However, his testimony concerning when he began
modified duty is not entirely clear:
Q. Okay. Now, I want to talk to you a little bit more
about working on modified duty. Could you remind us
again, when did you first start working on modified duty?
A. I had worked on modified duty as I believe August
20th, 2014.
Q. Okay. And that was in 2014. If it turned out that
wasn't the date, would you be surprised?
A. Yeah.
From Saenz’ testimony, it is not clear how long this modified
duty lasted but examination reports from Saenz’ physician11

11 These records include physician reports on January 28, 2015,
March 31, 2015, May 15, 2015, June 1, and 3, 2015, and July 17, 2015.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
indicate that the restrictions continued until October 8, 2015.
Additional injuries may have caused the recovery period to be
so long. Saenz was in an automobile accident in September
2014.
On July 30, 2015, Saenz remained under medical
restrictions12 when another problem occurred. He testified “I
was walking to the restroom and I heard a pop, like a real bad
pop, and my knee swelled up. It was like a greenish, purple
color.” According to Saenz, he went to the doctor the next day.
The physician did not change the existing restrictions.
The physician lifted all restrictions and authorized Saenz to
return to full duty effective October 8, 2015. However, while
at work 12 days later, Saenz suffered another accident, which
he described as follows:
I was sitting down like this. There was boxes in front of me.
So only way I could move really was moving my feet. So
when I moved my feet, my leg had locked. And when it
locked, I kind of like fell backwards. It was kind of like—I
don't know how to explain it. It was just the chair that I had
just slipped underneath me and I fell backwards and hit the
floor. The knee hit—the knee hit—my knee had hit the floor
and it swelled up.
Saenz reported the accident to a supervisor and then went
home. Two days later, he received a telephone call from
Respondent’s human resources manager, Heather Vines-Bright,
who said that he could not return to work on modified duty.
Saenz testified:
She told me I would have to stay at home until my restrictions
were—they no longer needed my services. And they would
have to wait for me to—my restrictions be lifted, and then
they would evaluate me. And then they would determine if
they had a position for me.
Complaint paragraph 6(c) alleges, and Respondent admits,
that it removed Saenz from its modified duty program on
October 22, 2015.
On October 21, 2015, Human Resources Manager Daniel
Santamaria, Warehouse Manager Jeff Vandawalker, Branch
Safety Supervisor Melanie Petrola, and Worker Compensation
Claims Manager Jamie Keith met to discuss whether Saenz and
Woods should be allowed to continue on modified duty.
However, I do not find that they made a decision at this
meeting. Rather, crediting Keith, I find that she made the
decision to remove Saenz from that program.
In making this decision, Keith focused on Saenz’ medical
records and concluded that he was not a “good fit” for the
modified duty program because he was not getting any better.
Saenz’ own testimony, when asked about the medical reports

12 Saemz’ description of these restrictions differs from those on the
July 17, 2015 Work Status Exam form signed by the physician. Saenz
testified his restrictions in effect on July 30, 2015, included no stand-
ing, kneeling, bending, walking upstairs, or walking more than 25
yards. However, the doctor’s Work Status Exam form does not show
any limitation on standing, bending, or walking. The form does prohib-
it squatting, kneeling and climbing.
during cross examination, supports this conclusion. On
crossBexamination, Saenz acknowledged that he remained in
pain at the time he testified:
Q. Okay. And, as you sit here today, you still are not
ready to return to full duty?
A. Correct.
Q. Okay. But you want to be returned to light duty?
A. Only to show that I'm still able to work.
Q. Okay. When you said you wanted to be back to
Shamrock, you mean you want to go book to light duty at
Shamrock?
A. Some type of work, yes.
Q. Okay. And how long do you think you should stay
on light duty?
A. Until they get me fixed.
The Government alleges that the Respondent removed Saenz
from the modified duty program because of his union activity.
Saenz testified that he signed a union card and that he was
“vocal” in supporting the Union. However, Saenz’ testimony
about being “vocal” was not entirely clear:
Q. Got it. Okay. And—and you were vocal about
your support from the beginning, correct?
A. No.
Q. You were not vocal from the beginning. When—
when you were vocal?
A. Well, I was always vocal, we just had to keep really
quiet in the beginning.
Q. Okay. So you were—you were always vocal—you
were all vocal about supporting the Union?
A. Correct.
A literal reading of Saenz’ testimony suggests a con-
tradiction, that he was “vocal” while having to keep quiet.
However, by “vocal” he may have meant adamant or em-
phatic, so I do not view this testimony as reflecting on his
credibility.
Another part of Saenz’ testimony, concerning how he
sustained a particular injury, does raise some concern. On
cross-examination, he first testified that the injury occurred
when he jumped over a conveyor belt:
Q. Okay. And now you hurt your knee jumping over
the belt?
A. Working.
Q. But you jumped over a belt.
A. No, I didn't jump over.
Respondent’s counsel then showed Saenz an “Industrial
Injury Investigation Report” on which Saenz had drawn a stick
figure diagram depicting how he had been injured. Saenz then
testified:
Q. You jumped over the belt?
A. Correct. Like we're supposed to.
Thus, when his own drawing forced him to admit that he had
SHAMROCK FOODS CO. 13
jumped over the belt, Saenz took a kind of fallback position
that jumping over the belt was accepted procedure. He then
repeated this pattern, at first denying that jumping over the belt
was a safety violation and then, when pressed, maintaining he
had done nothing wrong:
Q. Okay. Got you, got you. You jumped over the belt.
A. Yes.
Q. Okay. Isn't that a safety violation?
A. No, it's not.
Q. There's no policy that says you're not supposed to
jump over the belt?
A. They did an investigation, and I was found not guilty.
Q. Okay. That's not my question. There's no policy that
says you shouldn't jump over the belt?
A. Is there a policy?
Q. I'm asking you. Isn't there a policy that you're not
supposed to jump over the belt?
A. Yes.
This pattern raises some doubts about Saenz’ testimony
concerning his protected activity. Saenz might well have
exaggerated the extent to which he talked about the Union with
other employees. However, even signing a union card
constitutes protected activity sufficient to satisfy the first
element which the General Counsel must prove under Wright
Line.
For the same reasons discussed above in connection with
complaint paragraph 6(b), I conclude that the General Counsel has
not proven the second element, employer knowledge. The record
does not establish that the decision-maker, Keith, knew about the
protected activity.
Additionally, for the same reasons discussed above with respect
to complaint paragraph 6(b), I conclude that the Government has
failed to prove the existence of antiunion animus. The General
Counsel must prove all three of the initial Wright Line elements
before any presumption arises that antiunion animus is a
substantial motivating factor in the decision. Therefore, I
recommend that the Board dismiss the allegations raised by
complaint paragraph 6(c).
Complaint Paragraphs 6(d) and (e)
The allegations in complaint paragraphs 6(d) and (e) are closely
related, involving the suspension and subsequent discharge of the
same employee.
Paragraph 6(d) of the complaint, as amended, alleges that about
November 30, 2015, the Respondent suspended employee Kevin
Owens. The Respondent admits this allegation, further stating
“that Mr. Owens was suspended pending investigation.”
However, the Respondent denies that it suspended Owens because
he had joined and assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in these
activities, as alleged in complaint paragraph 6(g). The
Respondent also denies that its suspension of Owens violated
Section 8(a)(3) and (1) of the Act, as alleged in complaint
paragraph 8.
Complaint paragraph 6(e) alleges that the Respondent
discharged employee Kevin Owens on about December 4, 2015.
The Respondent admits discharging Owens but denies that it did
so because Owens had joined and assisted the Union and engaged
in concerted activities, and to discourage employees from
engaging in these activities, as alleged in complaint paragraph
6(g). The Respondent further denies that discharging Owens
violated Section 8(a)(3) and (1) of the Act, as alleged in complaint
paragraph 8.
In February 2015, the Respondent hired Kevin Owens to work
as an order selecter in its warehouse. Owens’ duties included
finding specific items being stored in the warehouse to ship and
affixing a barcode to each box.
The Respondent's warehouse depends on a complicated system
using 13 miles of conveyor belts under computer control. After a
box is placed on a conveyor belt, a barcode reader scans its label
to obtain information about the box’s intended destination. Then,
the computer instructs a switching system to route the box to the
proper place.
Serious problems result when a box fails to arrive at its
intended loading dock on time. The truck being loaded will make
deliveries at a number of stores, so the goods to be taken off at the
last stop are loaded on the truck first and the goods to be unloaded
at the first stop are placed on the truck last. Loading boxes in this
order minimizes the work the truckdriver must do and the time
spent at each stop.
Problems can arise which prevent loading the truck in the
proper order. For example, if some specified goods cannot be
found in time, they will arrive at the dock after the truck is
partially loaded. When there is such a delay in finding the
merchandise to be shipped, the lateBarriving boxes are considered
“emergency picks” or “e-picks.”
Management tries to minimize the number of e-picks for two
reasons. Because the e-picks are loaded on the truck last, the
driver must remove them to reach the merchandise to be unloaded
and then put them back on the truck before it goes to the next stop.
E-picks therefore cost time and increase the driver’s work.
By mistake, e-picks may be delivered to the wrong location.
About 20 percent of e-picks become “lost” enroute. Therefore, e-
picks constitute a costly alternative to loading trucks in the proper
order.
On about November 22, 2015, Owens suffered a hand cut
which required stitches. Three days later, while he was working,
one of those stitches ruptured and his hand began to bleed.
Owens’notified management and went to the warehouse health
unit, called MedCor, where a nurse examined his hand. Owens
testified that the nurse then recommended to Warehouse Manager
Vandawalker that Owens be sent home. Vandawalker agreed.
At this point, Owens had 71 barcode labels which he was to
place on boxes before loading them on the conveyor belt. Instead
of turning the labels in to supervision so that another employee
could use them, Owens threw the labels away. After Owens left,
Operations Supervisor Frankie Valenzuela sent him a text
message asking what Owens had done with the labels. Owens
replied that he had thrown them away.
Valenzuela then sent Owens a text message asking where he
had thrown the labels. However, Owens did not answer this
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
message.13 As a result, new labels had to be generated for the 71
boxes, which became e-picks.
At one point during his testimony, Owens claimed that he
had thrown away the labels, rather than turn them in to a
captain, because he did not want to walk the distance from the
MedCor infirmary to where the captain was standing.
However, Owens’ further testimony made clear that this was
not his true reason.14
When the computer generates labels, it records the name of
the employee to whom the labels are issued. Owens feared that
if another employee used his labels, and made mistakes, the
mistakes would be attributed to him. This concern caused him
to discard the labels and to ignore the text mesage asking where
he had put them. Owens explained, “I figured he would assign
those labels to another person . . . So I wadded them up, threw
them away, went home.”
Owens gave the following explanation for why he did not
answer the supervisor’s text message asking where he had
discarded the labels:
Q. And why didn't you respond at the end of those text
messages?
A. If I would have responded to this, they would have
went and got my labels and picked with my labels.
Discarding the labels, and failing to disclose their location
when the supervisor asked, resulted in the 71 boxes being
treated as e-picks. However, Owens’ testimony reveals that he
wanted the boxes to bear e-pick labels: “Once they print that e-
pick label, the label that is under my name is canceled. It won't
scan, it won't do anything.”
On November 30, 2015, Owens met with Warehouse
Operations Manager Vaivao. During this meeting, Vaivao asked
Owens more than once about why he threw the labels away. At
one point, Owens replied that his hand was bleeding and he didn’t
want to make a 5 to 7-minute walk back to the dock to give the
labels to a captain. However, Owens testified, he also told Vaivao
“if I had given these labels to another employee, I would have had
mis-picks.” In other words, he believed that employee using the
labels would have made mistakes for which he would have been
blamed.
According to Owens, Vaivao told him that when “I threw the
labels away, basically I was abandoning my job.” Vaivao
suspended Owens. Later, Owens received word that his

13 Owens testified as follows regarding the exchange of text mes-
sages with Supervisor Frankie Valenzuela:
Q. So what was your response to Frankie when he sent you a text
message asking about the 71 labels?
A. “They're on the way after I grab what was there.” He texted me
back, “Why would you throw them away? Why didn't you turn them
in?” “Boss, if I handed them in, they were still under my name. Me
giving my forks”—that's what we call the stuff that's not there when
we go to the location and it's not there —“to people could also be how
I’m getting all these mis-picks. I know I'm taking my time and
shouldn’t have all those. This could be another way I'm getting them.
My bad.” He text me back, “Where did you throw them? I need to
get them so we can pick them.” After that, I didn't respond.
14 This shifting explanation adds to my concerns, discussed above,
about Owens’ credibility.
employment was terminated.
The Government argues that the Respondent discharged Owens
because he had engaged in union activities. Owens initially had
negative or at best neutral feelings about unionization, but signed
a union card given to him by another employee. According to
Owens, as he signed the card he saw a supervisor, Leland Scott,
walking towards him.
Owens did not specifically testify that Scott saw him sign the
card but only that he saw Scott walking up at the time he signed
the card. Scott denied seeing Owens sign a union card. For
reasons discussed above, I have doubts about the reliability of
Owens’ testimony. Therefore, I credit Scott’s denial.
Owens also testified that he stopped wearing “We Are
Shamrock” shirts. However, I have concluded that wearing such a
shirt did not communicate an antiunion message, so I further
conclude that failing to wear the shirt would not communicate a
prounion message.
Owens further testified that at one point he had a conversation
with Cruz, the floor captain, and that during this conversation he
told Cruz “the Union gets in here, your captain title will be
irrelevant. You'll be just like me.”
For reasons noted above, I have concluded that Cruz was not
Respondent’s supervisor within the meaning of Section 2(11) of
the Act. Therefore, even if Cruz knew that Owens had changed
his mind and now supported the Union, that knowledge would not
be imputable to the Respondent.
However, Cruz testified that he did not know that Owens
engaged in any union activity. In view of my doubts about
Owens’ testimony, to the extent it conflicts with that of Cruz, I
credit Cruz. Therefore, I conclude that Cruz did not know about
Owens’ support for the Union.
The General Counsel has proven that Owens engaged in
protected activity, the first of the three elements which the
Government initially must prove under Wright Line. However,
the credited evidence does not establish the second element that
the Respondent knew about Owens' protected activity. To the
contrary, I conclude that it did not.
For reasons discussed above, I further conclude that the
government also has not proven the third element, the existence of
antiunion animus.
Therefore, I recommend that the Board dismiss the allegations
raised by complaint paragraphs 6(d) and (e).
Complaint Paragraph 6(f)
Paragraph 6(f) of the complaint, as amended, concerns
Respondent’s placing employee Benny Saenz on extended
medical leave on January 18, 2016. The Respondent admits
placing Saenz on extended medical leave but denies it acted with
antiunion motivation and further denies that its action violated
Section 8(a)(3) and (1).
From the structure of paragraph 6(f), it is not entirely clear
whether the General Counsel is alleging one violation or
alleging three related violations. The complaint paragraph
states:
About January 18, 2016, Respondent placed Saenz on
extended medical leave under the following conditions:
SHAMROCK FOODS CO. 15
(1) Saenz will not be guaranteed a return to his former
position and must apply to any open position with Re-
spondent for which Saenz qualifies;
(2) Saenz’ group medical insurance will remain in ef-
fect for a two-month period, with the associate share of the
monthly contribution being deducted from Saenz’ pay dur-
ing that period;
(3) in the event Saenz is unable to return to employ-
ment following the two-month period described above in
paragraph 6(f)(2), Saenz’ group medical insurance will
remain in effect for a period not to exceed a maximum of
twelve months inclusive of all leaves, with the entire cost
of the monthly contribution being paid by Saenz during
that period.
Discrimination in violation of Section 8(a)(3) consists of an
adverse employment action which encourages or discourages
“membership in any labor organization.” See 29 U.S.C. §
158(a)(3). In my view, the language at the beginning of
complaint paragraph 6(f) alleges one employment action
placing Saenz on extended medical leave and the
subparagraphs which follow allege how the event was adverse,
that is, how it unfavorably affected Saenz’ terms and conditions
of employment. Therefore, I conclude that complaint paragraph
6(f) alleges one unfair labor practice, not three.
In its answer, the Respondent admits the allegation in
subparagraph 6(f)(1), that Saenz would not be guaranteed a
return to his former position and must apply for any open
position which he is qualified to perform.15 The Respondent's
answer also admits the allegation in subparagraph 6(f)(2), that
Saenz’ group medical insurance would remain in effect for a
2-month period, with the associate share of the monthly
contribution being deducted from Saenz’ pay during that
period.
However, the Respondent denies the allegation in
subparagraph 6(f)(3).16 Additionally, the Respondent denies
that it placed Saenz on extended medical leave because he had
joined and assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in these
activities, as alleged in complaint subparagraph 6(g). The
Respondent also denies that its conduct violated Section 8(a)(1)
and (3) of the Act, as alleged in complaint paragraph 8.
During oral argument, the General Counsel addressed these
allegations together with those raised in complaint paragraph
6(c) and did not point to any additional evidence of employer

15 Respondent's answer to complaint subpar. 6(f)(1) also states, "by
way of further response" that "Mr. Saenz exhausted his Family Medical
Leave Act allotment.
16 Respondent’s answer to subpar. 6(f)(3) states “by way of further
response” that “the associate [employee] can continue COBRA cover-
age for longer than 12 months.” The acronym COBRA presumably
refers to the Consolidated Omnibus Budget Reconciliation Act of 1985,
Pub. L. 99–272, which pertains to the continuation of employer-based
health insurance coverage after the cessation of employment.
knowledge or motive not considered in connection with
complaint paragraph 6(c). For the reasons discussed above, I
have concluded that the Government did not prove that
antiunion animus was a motivating factor for the conduct
alleged in complaint paragraph 6(c). Similarly, I conclude that
the General Counsel has not carried that burden here.
More specifically, the government has not proven that the
Respondent knew about Saenz’ union activities. It also has not
established the existence of antiunion animus. Therefore, it has
not met its initial Wright Line burden and no presumption arises
that animus played any part in the decision to place Saenz on
extended medical leave.
It may be noted that the record establishes legitimate
business reasons for the decision. Saenz testified on March 18,
2016, exactly 2 months after having been placed on extended
medical leave. He testified that he was in less pain than he had
previously experienced, but still could not work full duty.
Earlier, in October 2015, the Respondent lawfully decided
that Saenz no longer could participate in the modified duty
program, which involved work less arduous than full duty.
Because Saenz still could not perform full duty in January
2016, or even 2 months later, placing him on medical leave
appears to have been the only option which maintained his
employee status.
In sum, I conclude that the Respondent did not violate the
Act by the conduct alleged in complaint paragraph 6(f) and
recommend that the Board dismiss these allegations.
Summary
The credited evidence does not establish any of the
violations alleged in the complaint. Therefore, I recommend
that the Board dismiss the complaint in its entirety.
CONCLUSIONS OF LAW
1. The Respondent, Shamrock Foods Company, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, Bakery, Confectionery, Tobacco Workers’ and
Grain Millers International Union, Local Union No. 232, AFL–
CIO–CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent did not violate the Act in any manner
alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record in this case, I issue the following recommended17
ORDER
The complaint is dismissed.
Dated Washington, D.C. June 10, 2016

17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, these findings, conclusions, and rec-
ommended 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.