Shamrock Foods Company

National Labor Relations Board - Board Decisions

Jun 22, 2018

366 NLRB No. 117 (N.L.R.B. 2018)

366 NLRB No. 117
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 Bakery, Confection-
ery, Tobacco Workers’ and Grain Millers Inter-
national Union, Local Union No. 232, AFL–
CIO–CLC. Case 28–CA–150157
June 22, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On February 11, 2016, Administrative Law Judge Jef-
frey D. Wedekind issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief. The General Counsel and
Charging Party each filed cross-exceptions and support-
ing briefs, and the Respondent filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1

1 The Respondent and Charging Party have excepted to some of the
judge’s credibility findings. The Board’s established 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 carefully examined the
record and find no basis for reversing the findings.
There are no exceptions to the judge’s finding that the General
Counsel abandoned complaint pars. 5(g)(2), which alleged an unlawful
grant of benefits; 5(o), which alleged an unlawful statement of futility;
5(v)(3), which alleged an unlawful solicitation of grievances; and a
portion of par. 5(aa), which alleged an unlawful removal of union liter-
ature on July 8; or to the judge’s dismissal of complaint par. 5(s)(1),
which alleged that the Respondent violated Sec. 8(a)(1) when Floor
Supervisor Manning informed employee Steven Phipps that the Re-
spondent knew he had recently announced the union organizing cam-
paign in the break room.
The Respondent has excepted to the judge’s imposition of sanctions
against it for failing to comply with a subpoena duces tecum served by
the General Counsel. The authority to impose sanctions, “including
permitting the party seeking production to use secondary evidence,
precluding the noncomplying party from rebutting that evidence or
cross-examining witnesses about it, and drawing adverse inferences
against the noncomplying party,” is a matter committed in the first
instance to the judge’s discretion. McAllister Towing & Transportation
Co., 341 NLRB 394, 396–397 (2004), enfd. 156 F.Appx. 386 (2d Cir.
2005). We find that that the sanctions imposed by the judge were pro-
portionate to the Respondent’s contumacious noncompliance with the
General Counsel’s subpoena request and that the judge did not abuse
his discretion. Cf. Teamsters Local 917 (Peerless Importers), 345
NLRB 1010, 1011 (2005) (reversing judge’s dismissal of the complaint
as sanction for party’s noncompliance with subpoena as disproportion-
ate), enfd. in part 577 F.3d 70 (2d Cir. 2009). We further find that the
judge did not abuse his discretion in declining to draw an adverse infer-
and conclusions2 only to the extent consistent with this
Decision and Order.
The Respondent operates a food distribution ware-
house and employs approximately 280 employees at its
Phoenix, Arizona, facility. In late 2014, the Bakery,
Confectionary, Tobacco Workers’ and Grain Millers
International Union, Local 232 (Charging Party or Un-
ion) attempted to organize the Respondent’s warehouse
employees. The General Counsel alleges in this case
that, during the organizing drive, the Respondent com-
mitted numerous unfair labor practices from January to
July 2015.3
We agree with the judge, for the reasons stated in his
decision, and as further discussed here, that the Respond-
ent violated Section 8(a)(1) of the Act by: (1) threatening
employees;4 (2) soliciting employee complaints and
grievances;5 (3) instructing employees to ascertain and
disclose the union activities of others; (4) informing em-
ployees that supporting the Union would be futile; (5)
promising employees a benefit in order to discourage
union support;6 (6) surveilling employees and creating
the impression of surveillance;7 (7) promulgating an un-

ence against the Charging Party for its failure to produce supposed
recordings of other meetings with employees because they were not in
the Charging Party’s possession or control. See North Hills Office
Services, 344 NLRB 1083, 1084 fn. 13 (2005) (finding adverse infer-
ence inappropriate when requested documents were not under party’s
control and likely did not exist).
2 We affirm the judge’s dismissal of the complaint allegations not
otherwise discussed in this Decision.
3 All subsequent dates are in 2015, unless otherwise indicated.
4 We agree with the judge that, under all the circumstances, em-
ployees would have reasonably understood Vice President of Opera-
tions Mark Engdahl’s January 28 remark that the “slate is wiped clean”
on wages, benefits, and working conditions when collective bargaining
begins as a coercive threat. We also agree with the judge that, on April
29, Engdahl threatened employees with unspecified reprisals by his
statement that the Union “will hurt all of you,” because the other un-
lawful statements expressed during the April 29 meeting imparted a
“coercive overtone” to the threat of harm. See Reno Hilton, 319 NLRB
1154, 1155 (1995).
5 Because we agree that on January 28, Human Resources Manager
Natalie Wright unlawfully solicited employee complaints and grievanc-
es and that Warehouse Manager Ivan Vaivao also unlawfully solicited
employee complaints and grievances on February 5, we find it unneces-
sary to pass on the Charging Party’s exception to the judge’s dismissal
of the allegation that Vaivao committed the same violation during a
different mid-February meeting. Finding this additional violation
would be cumulative and would not affect the remedy.
6 We note that, in providing the employees with a written guarantee
that there would not be a summer layoff as in the previous year, the
Respondent failed to show that it had a legitimate business reason for
the timing of its announcement, just two days after employee Steven
Phipps formally announced the union organizing campaign.
7 We agree with the judge that, on January 28, Floor Captain Art
Manning unlawfully engaged in surveillance of employees’ union
activity by standing outside a local Denny’s restaurant where a union
organizing meeting was taking place and, on April 27, created the im-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
lawful rule in response to union activity, instructing em-
ployees to report employees who violated that rule, and
threatening employees with legal prosecution if they vio-
lated that rule;8 (8) interrogating employees;9 (9) confis-

pression of surveillance by telling employee Phipps to “just watch
yourself, because they [are] watching both of us, so watch your back”
after hearing that Phipps had formally announced the union organizing
campaign in the break room the day before. We also agree that Super-
visor Dave Garcia surveilled employee Mario Lerma on May 1 by
searching his forklift for union authorization cards and that Garcia’s
statement to Lerma on the same date that he knew that Lerma had
passed out a union authorization card in the break room created the
impression of surveillance.
We find it unnecessary to pass on the allegations that the Respond-
ent created the impression of surveillance by Warehouse Manager
Vaivao’s statement on March 26 and Vice President Engdahl’s state-
ment on April 29 because finding these additional violations would be
cumulative and would not affect the remedy. For the same reason,
Members Pearce and McFerran also find it unnecessary to pass on the
allegation that Safety Manager Joe Remblance surveilled employees on
April 29. However, Member Kaplan would reverse the judge’s finding
that Safety Manager Remblance surveilled employees on April 29. In
his view, it was not unusual for Remblance to join a conversation with
employees, the Union was never mentioned during the conversation
with Remblance, and Remblance merely asked if they were on break at
the time. Nothing about this ordinary interaction indicated that the
employees’ union activities were being monitored.
8 On May 8, President/CEO Kent McClelland distributed a letter to
employees in which he prohibited “unlawfully coercive” behavior or
bullying. We agree with the judge that, by this letter, the Respondent
unlawfully promulgated a rule in response to employees’ union activity.
See Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004)
(rule that does not explicitly restrict Sec.7 activity unlawful if promul-
gated in response to union activity). We therefore find it unnecessary
to pass on whether the rule would be unlawful if it was not promulgated
in response to union activity.
Member Kaplan notes that, although the May 8 letter asserted it was
sent because “some [employees] have recently been subjected to threat-
ening, violent, or unlawfully coercive behavior by other [employees],”
the Respondent failed to substantiate the claim. In different circum-
stances, he would find a letter reminding employees of a preexisting
rule against violent, threatening, or coercive behavior lawful.
9 We agree with the judge that, on January 28, Supervisor Jake My-
ers unlawfully interrogated employee Thomas Wallace and, on May 25,
Supervisor Karen Garzon unlawfully interrogated two employees.
Members Pearce and McFerran agree with the judge that, on April
29, Safety Manager Remblance also unlawfully interrogated employee
Phipps and another employee. While Phipps and his coworker were on
break and conversing, Remblance walked 60 to 70 yards out of his way
to interrupt their discussion, and ask what they were discussing. Alt-
hough the employees had been talking about the union campaign, they
replied that they were discussing work. Remblance then asked Phipps
how much time he had left on his break and reminded him to get back
to work after his break. As found by the judge, the only apparent rea-
son for Remblance’s action and inquiry was Phipps’ recent announce-
ment about the union campaign. Indeed, based on the timing of the
question - just 2 days after Phipps announced the union campaign, and
a few hours after the Respondent’s anti-union meeting – we agree with
the judge that Phipps clearly understood Remblance’s question as an
unlawful interrogation about his union activities.
However, Member Kaplan would reverse the judge and dismiss this
allegation of interrogation. He again notes that the circumstances of the
April 29 conversation were not unusual. Consistent with past actions,
cating and prohibiting the distribution of union literature;
and (10) granting a wage increase in order to discourage
union support.
We also adopt the judge’s findings that the Respondent
violated Section 8(a)(3) and (1) by disciplining employee
Lerma,10 and violated Section 8(a)(1) by discharging
employee Wallace.11 And we agree with the judge that

Remblance joined a conversation with two employees in an open area
of the warehouse and simply inquired as to what the employees were
talking about. At no point did he ask about the union organizing cam-
paign or the employees’ views of the Union.
10 We agree with the judge that the Respondent unlawfully threat-
ened Lerma with unspecified reprisals if he heckled or insulted other
employees and that the conversation on May 5 was, in fact, a “counsel-
ing,” the first level of discipline under the Respondent’s progressive
discipline policy. This finding is supported by Vice President Eng-
dahl’s warning that Lerma “could get in some serious trouble for that”
and by Warehouse Manager Vaivao’s remark that he “would find
[him]self in deeper trouble” if he engaged in such conduct again.
However, we reverse the judge’s finding that the Respondent violat-
ed Sec. 8(a)(1) by promulgating an overbroad work rule when Engdahl
told Lerma that heckling or insulting other employees would not be
tolerated. As the Board has repeatedly stated, before assessing whether
the oral promulgation of an alleged rule is unlawful, it is appropriate to
determine whether the statement at issue is in fact the promulgation of a
rule. See Teachers AFT New Mexico, 360 NLRB 438, 438 fn. 3
(2014); St. Mary’s Hospital of Blue Springs, 346 NLRB 776, 777
(2006); see also Food Services of America, Inc., 360 NLRB 1012, 1016
fn. 11 (2014) (dismissing oral rule promulgation allegation where
statement was made to a single employee and not of general applicabil-
ity), vacated pursuant to settlement by 365 NLRB No. 85 (2017). Here,
Engdahl’s statement was made to a single employee and the prohibition
on heckling and insulting was “never repeated to any other employee as
a general requirement” by the Respondent. Flamingo Las Vegas Oper-
ating Co., 360 NLRB 243, 243 and fn. 5 (2014). Thus, we find that the
Respondent did not orally promulgate an unlawful work rule. Accord-
ingly, we dismiss this allegation.
11 We agree with the judge, for the reasons he states, that the Gen-
eral Counsel sustained his initial burden of proving that Wallace’s
protected concerted activity in complaining about the employees’
healthcare plan at an employer town hall meeting was a motivating
factor in his discharge, and that the Respondent violated Sec. 8(a)(1) by
discharging him for this activity. However, Member Kaplan does not
rely on Worldmark by Wyndham, 356 NLRB 765 (2011), in affirming
the judge’s finding that Wallace’s conduct at an employee meeting with
management was concerted and would consider reviewing the holding
the Worldmark by Wyndham in an appropriate future case.
We find it unnecessary to pass on the judge’s finding that the dis-
charge additionally violated Sec. 8(a)(3), as such a finding would not
materially affect the remedy. Contrary to his colleagues, Member
Pearce would affirm the judge’s finding that the Respondent additional-
ly violated Sec. 8(a)(3) by discharging Wallace. As found by the judge,
the Respondent knew or suspected that Wallace supported the Union
based on his questions at the January 28 and March 31 meetings and
Warehouse Manager Vaivao’s statement at the March 26 meeting that
the Respondent knew which employees supported the Union. Further,
the General Counsel amply demonstrated the Respondent’s animus
through its numerous unfair labor practices, shifting and false reasons
for the discharge, and lack of consultation or investigation before ter-
minating Wallace. And because the Respondent’s reasons for discharg-
ing Wallace were pretextual, the Respondent failed by definition to
satisfy its rebuttal burden.
SHAMROCK FOODS CO. 3
paragraphs 10, 12, and 13 of the separation agreement
presented to Wallace at the time of his discharge violated
Section 8(a)(1).12

12 In finding certain paragraphs of the separation agreement to be
unlawful, the judge relied on cases involving overbroad work rules.
We find those cases to be inapposite because the separation agreement
is not a generally applicable work rule.
Nonetheless, we agree with the judge that pars. 10, 12 and 13 are un-
lawful. The Board has found that an employer may condition a settle-
ment on an employee’s waiver of Sec. 7 rights if the waiver is narrowly
tailored to the facts giving rise to the settlement and the employee
receives some benefit in return for the waiver. S. Freedman & Sons,
Inc., 364 NLRB No. 82, slip op. at 2 (2016). Pars. 10, 12, and 13 can-
not be narrowly tailored to the facts giving rise to Wallace’s discharge
because the Respondent discharged Wallace for an unlawful reason, his
protected activity. This is in contrast to S. Freedman & Sons where, in
exchange for signing a settlement agreement, an employee who re-
ceived a traffic ticket and caused an accident in a company vehicle was
only suspended instead of terminated. Moreover, pars. 10, 12, and 13
broadly required Wallace to waive certain Sec. 7 rights that would have
prevented him from providing assistance to his former coworkers;
disclosing information to the Board, including any “personnel or corpo-
rate information”; and making disparaging remarks or taking actions
now, or at any time in the future, which could be “detrimental” to the
Respondent—none of which is narrowly tailored to the facts giving rise
to Wallace’s discharge.
Member Kaplan would not find pars. 10, 12, or 13 unlawful. Initial-
ly, he notes that the General Counsel only alleged that the Respondent
unlawfully maintained the contested paragraphs as over-broad work
rules, and he concurs with his colleagues that these paragraphs of the
separation agreement are not generally applicable work rules. In his
view, inasmuch as Wallace was the only employee involved, was not
required to sign the separation agreement, and did not do so, the mere
proffer to him of the agreement containing the contested paragraphs did
not violate Sec. 8(a)(1).
Members Pearce and Kaplan also agree with the judge’s dismissal of
the allegation that par. 9 of the separation agreement is unlawful.
Member Pearce agrees with the judge that this paragraph does not
prohibit Wallace from discussing his discharge. Member Kaplan would
adopt the judge’s dismissal of the allegation for par. 9 for the same
reasons he would dismiss the allegations regarding pars. 10, 12, and 13.
However, even if the language at issue in par. 9 were contained in a
signed and enforceable separation agreement, he would agree with
Member Pearce that the language would not prevent an employee from
discussing his or her discharge.
Consistent with her dissenting position in S. Freedman & Sons,
Member McFerran would find unlawful paragraph 9 of the separation
agreement, which prevents Wallace from disclosing the terms of the
separation agreement to his former coworkers or the Board. She be-
lieves that par. 9 has an impermissible chilling effect on the Sec. 7
rights of all employees by barring Wallace from providing information
to the Board concerning the Respondent’s unlawful interference with
employees’ statutory rights. See Metro Networks, 336 NLRB 63, 67
(2001). For instance, par. 9 would prohibit Wallace from revealing that
he cannot, because of the settlement agreement, disclose to the Board
his knowledge of any of the Respondent’s business practices, including
“personnel or corporate information,” which could be instrumental in a
Board investigation to uncover unlawful conduct. This is particularly
notable because par. 9 would prevent Wallace from even disclosing the
existence of other unlawful provisions in the settlement agreement
itself, namely pars. 10, 12, and 13. In addition, under par. 9, Wallace
would not be able to discuss the terms of his separation with his former
coworkers who could find themselves in a similar predicament. Ac-
Finally, we shall sever and retain for further considera-
tion the numerous complaint allegations that the Re-
spondent violated Section 8(a)(1) by maintaining various
rules in its Associate Handbook.13
AMENDED CONCLUSIONS OF LAW
1. Delete the judge’s Conclusions of Law 2(d) and
3(a) to (e) and re-letter/re-number the remaining para-
graphs accordingly.
2. Substitute the following as re-lettered Conclusion
of Law 2(f):
“(f) Threatening an employee with discipline or other
unspecified reprisals if he heckled or insulted other em-
ployees, or solicited employees in a manner which could
be perceived as intimidation.”
3. Substitute the following as Conclusion of Law 4:
“4. The Company engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act by discharg-
ing Thomas Wallace on April 6, 2015 because of his
protected concerted activities and to discourage employ-
ees from engaging in such activities.”
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act.14 Specifically, we
amend the judge’s remedy in the following respects.
We shall modify the judge’s recommended tax com-
pensation and Social Security reporting remedy in ac-
cordance with our decision in AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016).
Additionally, in accordance with King Soopers, Inc.,
364 NLRB No. 93 (2016), enfd. in pertinent part 859
F.3d 23 (D.C. Cir. 2017), we shall order the Respondent
to compensate Thomas Wallace for his search-for-work

cordingly, in light of these considerations, Member McFerran would
find that par. 9 of the separation agreement is also unlawful.
13 The rules are as follows: (1) Protecting the Company’s Confiden-
tial Information; (2) Requests by Regulatory Authorities; (3) Company
Spokespeople; (4) Electronic and Telephonic Communications; (5)
Monitoring Use; (6) E-mail; (7) World Wide Web; (8) Blogging; (9)
Guideline to Prohibited Activities; (10) Reporting Violations; (11)
Discipline for Violations (which the judge did not mention); (12)
Guidelines to Appropriate Conduct; (13) No Solicitation, No Distribu-
tion; and (14) Head/Ear & Cell Phone Use.
14 We take administrative notice of a settlement agreement between
Thomas Wallace and the Respondent in Case 28–CA–177035, now
pending on exceptions before the Board. Any issues regarding the
effect of that settlement, if any, on the Respondent’s reinstatement and
backpay obligations, and the Respondent’s defenses to any reinstate-
ment or backpay obligation, may appropriately be addressed in compli-
ance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
and interim employment expenses regardless of whether
those expenses exceed interim earnings. Search-for-
work and interim employment expenses shall be calcu-
lated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky
River Medical Center, 356 NLRB 6 (2010).
Further, due to the numerous unfair labor practices
committed by the Respondent in this case and the result-
ing length of the notice, we find it appropriate to require
a notice-mailing remedy so that employees may have the
necessary time and opportunity to read and understand
the violations and their rights. We shall therefore also
order the Respondent, at its own expense, to mail a copy
of the attached notice marked “Appendix” in English and
Spanish to all current employees and former employees
employed at its Phoenix, Arizona, facility at any time
since January 28, 2015.
Finally, we shall modify the judge’s recommended
Order in accordance with our decision in Excel Contain-
er, Inc., 325 NLRB 17 (1997), and to conform to the
violations found herein and the Board’s standard remedi-
al language. We shall substitute a new notice to conform
to the Order as modified.
ORDER
The National Labor Relations Board orders that the
Respondent, Shamrock Foods Company, Phoenix, Ari-
zona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
employees for engaging in protected concerted activities.
(b) Issuing counselings or otherwise disciplining em-
ployees because of their support for and activities on
behalf of the Bakery, Confectionary, Tobacco Workers’
and Grain Millers International Union, Local Union No.
232, AFL–CIO–CLC (Union) or any other labor organi-
zation.
(c) Threatening employees with a loss of existing ben-
efits if they select the Union as their bargaining repre-
sentative.
(d) Soliciting grievances from employees and implied-
ly promising to remedy them in order to discourage em-
ployees from supporting the Union.
(e) Promising or granting benefits to employees by
committing not to lay off employees during the summer
in order to discourage employees from supporting the
Union.
(f) Granting a wage increase to employees in order to
discourage employees from supporting the Union.
(g) Instructing employees to report the identity of em-
ployees engaged in solicitation to management.
(h) Threatening employees with unspecified reprisals
if they select the Union as their bargaining representa-
tive.
(i) Threatening employees that selecting a union rep-
resentative would be futile.
(j) Coercively interrogating employees about their un-
ion sympathies and/or support.
(k) Placing employees under surveillance while they
engage in union or other protected concerted activities.
(l) Creating the impression that it is engaged in sur-
veillance of its employees’ union or other protected con-
certed activities.
(m) Confiscating and prohibiting the distribution of
union literature.
(n) Threatening employees with discharge or other
unspecified reprisals if they engage in activities on behalf
of the Union.
(o) Promulgating and maintaining a rule in response to
employees’ union activity prohibiting employees from
engaging in unlawfully coercive behavior or bullying.
(p) Instructing employees to report the identity of em-
ployees who violated the unlawful rule prohibiting em-
ployees from engaging in unlawfully coercive behavior
or bullying.
(q) Threatening employees with legal prosecution if
they violated the unlawful rule prohibiting employees
from engaging in unlawfully coercive behavior or bully-
ing.
(r) Maintaining a Separation Agreement prohibiting
employees from disclosing confidential information in-
cluding any “personnel or corporate information” and
from making disparaging remarks or taking actions
which could be “detrimental” to the Respondent.
(s) In any like or related manner interfering with, re-
straining, 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.
(a) Within 14 days from the date of this Order, offer
Thomas Wallace 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 Thomas Wallace whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(c) Compensate Thomas Wallace for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 28,
within 21 days of the date the amount of backpay is
SHAMROCK FOODS CO. 5
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year.
(d) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge of Thomas Wallace, and within 3 days thereafter,
notify him in writing that this has been done and that the
discharge will not be used against him in any way.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful counseling of
Mario Lerma, and within 3 days thereafter, notify him in
writing that this has been done and that the discipline
will not be used against him in any way.
(g) Rescind the rule promulgated on May 8 prohibit-
ing unlawfully coercive behavior and bullying.
(h) Rescind the provisions in the Separation Agree-
ment that prohibit employees from disclosing confiden-
tial information including any “personnel or corporate
information,” and making disparaging remarks or taking
actions which could be “detrimental” to the Respondent.
(i) Within 14 days after service by the Region, post at
its Phoenix, Arizona facility copies of the attached notice
marked “Appendix,” in English and Spanish.15 Copies of
the notice, on forms provided by the Regional Director
for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal 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 Re-
spondent 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
plicate 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 January 28, 2015.
(j) Within 14 days after service by the Region, mail
copies of the attached notice marked “Appendix” in Eng-
lish and Spanish, at its own expense, to all employees
who were employed by the Respondent at its Phoenix,
Arizona facility at any time since January 28, 2015. The
notice shall be mailed to the last known address of each
of the employees after being signed by the Respondent’s
authorized representative.
(k) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, which shall
be scheduled to ensure the widest possible attendance of
employees, at which time the attached notice marked
“Appendix” is to be read to employees at its Phoenix,
Arizona facility by President/CEO Kent McClelland or
Operations Vice President Mark Engdahl, in the presence
of a Board agent, or, at the Respondent’s option, by a
Board agent in the presence of President McClelland or
Operations Vice President Engdahl, with translation
available for Spanish-speaking employees.
(l) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint allegations
that the Respondent unlawfully maintained rules titled:
(1) Protecting the Company’s Confidential Information;
(2) Requests by Regulatory Authorities; (3) Company
Spokespeople; (4) Electronic and Telephonic Communi-
cations; (5) Monitoring Use; (6) E-mail; (7) World Wide
Web; (8) Blogging; (9) Guideline to Prohibited Activi-
ties; (10) Reporting Violations; (11) Discipline for Viola-
tions; (12) Guidelines to Appropriate Conduct; (13) No
Solicitation, No Distribution; and (14) Head/Ear & Cell
Phone Use, are severed from this case and retained for
future resolution.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. June 22, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise discriminate
against you for engaging in protected concerted activi-
ties.
WE WILL NOT issue counseling or otherwise discipline
you because of your support for and activities on behalf
of the Bakery, Confectionary, Tobacco Workers’ and
Grain Millers International Union, Local Union No. 232,
AFL–CIO–CLC (Union) or any other labor organization.
WE WILL NOT threaten you with a loss of existing ben-
efits if you select the Union as your bargaining repre-
sentative.
WE WILL NOT solicit grievances from you and implied-
ly promise to remedy them in order to discourage you
from supporting the Union.
WE WILL NOT promise or grant benefits to you, such as
a promise to not lay off employees during the summer, in
order to discourage you from supporting the Union.
WE WILL NOT grant a wage increase to you in order to
discourage you from supporting the Union.
WE WILL NOT instruct you to report the identity of em-
ployees engaged in solicitation to management.
WE WILL NOT threaten you with unspecified reprisals if
you select the Union as your bargaining representative.
WE WILL NOT threaten you that selecting a union rep-
resentative would be futile.
WE WILL NOT coercively interrogate you about your
union sympathies and/or support.
WE WILL NOT place you under surveillance while you
engage in union or other protected concerted activities.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activities.
WE WILL NOT confiscate and prohibit the distribution
of union literature.
WE WILL NOT threaten you with discharge or other un-
specified reprisals if you engage in activities on behalf of
the Union.
WE WILL NOT promulgate and maintain a rule in re-
sponse to your union activity prohibiting employees from
engaging in unlawfully coercive behavior or bullying.
WE WILL NOT instruct you to report the identity of em-
ployees who violate the unlawful rule prohibiting em-
ployees from engaging in unlawfully coercive behavior
or bullying.
WE WILL NOT threaten you with legal prosecution if
you violate the unlawful rule prohibiting employees from
engaging in unlawfully coercive behavior or bullying.
WE WILL NOT maintain a Separation Agreement pro-
hibiting you from disclosing confidential information
including any “personnel or corporate information” and
from making disparaging remarks or taking actions
which could be “detrimental” to us.
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, within 14 days from the date of the Board’s
Order, offer Thomas Wallace full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Thomas Wallace whole for any loss of
earnings and other benefits resulting from his discharge,
less any net interim earnings, plus interest, and WE WILL
also make him whole for reasonable search-for-work and
interim employment expenses, plus interest.
WE WILL compensate Thomas Wallace for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 28, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar year.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Thomas Wallace, and WE WILL, within 3
days thereafter, 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 from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful counseling of Mario Lerma, and WE WILL, within 3
SHAMROCK FOODS CO. 7
days thereafter, notify him in writing that this has been
done and that the discipline will not be used against him
in any way.
WE WILL rescind the rule promulgated on May 8 pro-
hibiting unlawfully coercive behavior and bullying.
WE WILL rescind the provisions in the Separation
Agreement that prohibit employees from disclosing con-
fidential information including any “personnel or corpo-
rate information,” and making disparaging remarks or
taking actions which could be “detrimental” to the Re-
spondent.
SHAMROCK FOODS COMPANY
The Administrative Law Judge’s decision can be found
at www.nlrb.gov/case/28-CA-150157 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.
Sara S. Demirok, Esq., and Elise F. Oviedo, Esq., for the Gen-
eral Counsel.
Todd A. Dawson, Esq., and Nancy Inesta, Esq. (Baker &
Hostetler, LLP), for the Respondent Company.
Alan G. Crowley, Esq., and David A. Rosenfeld, Esq. (Wein-
berg, Roger & Rosenfeld), for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
JEFFREY D. WEDEKIND, Administrative Law Judge. The
complaint in this case alleges that Shamrock Foods Company
committed numerous unfair labor practices at its Phoenix, Ari-
zona warehouse between January and July 2015 to discourage
union or other protected activity, in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act. Among other
things, it alleges that the Company, by and through over 10
different managers and supervisors, unlawfully interrogated,
surveilled, and threatened employees, solicited employee com-
plaints and grievances, promised and granted employees better
wages and benefits, took union flyers away from employees,
and discharged or disciplined two prounion employees (Thom-
as Wallace and Mario Lerma). It also alleges that the Company
unlawfully maintained numerous overbroad rules in its employ-
ee handbook during the same period.1
A hearing on the complaint allegations was held over 7 days
between September 8 and 16, 2015. 2 Thereafter, on November
25, the General Counsel and the Company filed posthearing
briefs. After carefully considering those briefs and the record
as a whole, for the reasons set forth below I find that the Com-
pany violated the Act substantially as alleged, committing over
20 unfair labor practices during the union campaign, including
unlawfully discharging Wallace and disciplining Lerma, and
unlawfully maintaining several overbroad confidentiality, blog-
ging, solicitation/distribution, and other conduct rules in the
employee handbook.3
I. BACKGROUND
Shamrock Foods operates food distribution warehouses in
several states. In addition to the subject warehouse in Phoenix,
Arizona, the Company has warehouses in California, Colorado,
New Mexico, and Oregon. The Phoenix facility is the largest,
with approximately 280 warehouse workers, including pickers,
runners, throwers, and forklift operators, and 250 drivers.4
In 1998, the Teamsters Union attempted to organize the
Phoenix warehousemen and drivers. The Company committed
several unfair labor practices in response to the organizing
campaign, including unlawfully discharging an employee. See
Shamrock Foods Co., 337 NLRB 915 (2002), enfd. 346 F.3d
1130 (D.C. Cir. 2003). And the organizing campaign was ulti-
mately unsuccessful.

1 The complaint issued on July 21, 2015, and was subsequently
amended on August 13 and at the hearing. See GC Exhs. 1(g), (m), (t);
and Tr. 19–23, 750. The Board’s jurisdiction is undisputed and well
established by the admitted facts.
2 Pursuant to the General Counsel’s unopposed request, at the end of
the last day of hearing on September 16, the record was held open
indefinitely to allow the Regional Office additional time to investigate a
new charge the Union had filed the previous day seeking a remedial
bargaining order under NLRB v. Gissel Packing Corp., 395 U.S. 575
(1969). Thereafter, the Respondent requested that three additional
documents be included in the record. As there was no objection, the
request was granted by order dated October 21, and the documents
were admitted as Respondent exhibits 6, 7, and 8. The order also added
certain related documents as ALJ exhibits 1–5. Finally, as the Union
had recently withdrawn the Gissel charge, the order closed the hearing
record. Thereafter, on November 25, the General Counsel moved to
correct the record to include certain attached documents that had been
inadvertently omitted from GC Exh. 2. As the motion is consistent
with the record and unopposed, it is granted. The record is therefore
corrected to include the documents as GC Exhs. 2(b)–(f).
3 Specific citations to the transcript and exhibits are included where
appropriate to aid review, and are not necessarily exclusive or exhaus-
tive. In making credibility findings, all relevant factors have been
considered, including the interests and demeanor of the witnesses;
whether their testimony is corroborated or consistent with the docu-
mentary evidence and/or the established or admitted facts; inherent
probabilities; and reasonable inferences that may be drawn from the
record as a whole. See, e.g., Daikichi Corp., 335 NLRB 622, 633
(2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003); and New Breed
Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th Cir.), cert. denied
522 U.S. 948 (1997).
4 Although the Company often refers to its warehouse workers as
“associates,” they are consistently referred to here using the more tradi-
tional, statutory term “employees” to avoid any confusion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
More recently, in mid to late 2014, the Teamsters also at-
tempted to organize the Shamrock warehouse in southern Cali-
fornia. Around the same time, in late November, Steven
Phipps, a longtime forklift operator at the Phoenix warehouse,
decided to contact a different union—Bakery, Confectionery,
Tobacco Workers’ and Grain Millers (BCTGM) Local 232—
about representing the Phoenix warehouse workers. The Union
advised Phipps to keep the campaign “covert” at the beginning,
and Phipps followed this plan throughout the following De-
cember, January, and February. He only spoke or met with one
or a few employees at a time that he trusted and believed would
sign a union card, and always offsite, never in the warehouse or
parking lot.
Nevertheless, by late January 2015, word of the union cam-
paign was spreading “like wildfire” in the warehouse. Over the
next few months, more and more employees also began attend-
ing offsite meetings. Accordingly, on April 26 and 27, Phipps
made a formal, public announcement in the breakroom about
the campaign. (Tr. 485, 494–499, 520–521, 544–545, 612–
617.)
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Unlawful Statements at Company Meetings
The complaint alleges that many of the unlawful threats and
other statements were made at seven large or small group meet-
ings between late January and late April 2015 that were con-
ducted by one of three corporate or local managers: Vice Presi-
dent (VP) of Operations Mark Engdahl, then-Human Resources
(HR) Director Natalie Wright, or Phoenix Warehouse Manager
Ivan Vaivao. All but one of the meetings (a small meeting in
mid-February) were secretly recorded by Phipps or Lerma, and
both the recording and a certified transcript thereof were placed
in evidence by the General Counsel.
1. January 28 town hall meeting (Engdahl)
The complaint alleges that the Company made unlawful
statements at two meetings on January 28. The first was a large
“town hall” meeting with all of the warehouse workers that was
conducted by Operations VP Engdahl that morning. Engdahl
runs all of Shamrock’s operations, and reports directly to Com-
pany President/CEO William (Kent) McClelland. The General
Counsel alleges that Engdahl unlawfully threatened employees
at the meeting that they would lose benefits if they supported a
union by telling them that the “slate is wiped clean” on wages,
benefits, and working conditions when collective bargaining
begins (GC Exh. 1((g), par. 5(g)(1)).
Engdahl began the meeting by saying he was going to “edu-
cate” them about the southern California Teamsters’ campaign
and unions in general. He told them they could research “tons
of stuff” for and against unions on the internet to make their
own judgments; however, he was going to give them “the facts”
and would “not lie” to them. He said the employees in southern
California had “made good decisions” and the facility there
remained “union free.” He explained that a union is simply “a
business” that tries to grow and get more dues by misrepresent-
ing that they can fix all the employees’ problems, and would
only “cause strife between both sides.” He said Shamrock
wanted to deal with employees directly “as a family,” and to fix
problems by “working together and talking to each other . . . we
talk directly with you, you talk with us, you bring up problems,
we try to fix it.” He therefore encouraged the employees to
continue using the Company’s “open-door” policy to raise their
problems. He said the Company could “always tweak things,”
and wanted to “work to make things better.”
Engdahl also told the employees that there were various oth-
er reasons they should “think long and hard” before signing a
union card. He warned them that the card is a “legally binding
document” and that they were “going to pay hell trying to get it
back.” He also said that a company could voluntarily recognize
the union if it got over 50 percent of employees to sign the
cards. He then stated,
And sometimes I’ve seen it in the past where companies have
done that for probably not really good reasons, because what
happens when a company is represented and you go into col-
lective bargaining? The slate is wiped clean on wages, the
slate is wiped clean on benefits, the slate is wiped clean on
working conditions. It's all up to collective bargaining at that
point in time. Right? So sometimes a company may say,
“You know what, I think we're paying too much and our ben-
efits are too rich; so I'm going to grab the union, bring them in
here, sign up with them, whether my associates like it or not,
and we're going to collective bargain.”
And guess what? At the other end of the pipeline, when you
come out with a contract, all of a sudden the people have got
less wages, they took away healthcare benefits, they did this,
they did that. It actually saves companies money because
there's no guarantees when you go into collective bargaining
that you're going to come out with anything better than you
got. In fact, you could come out with something worse than
what you got. And they won't tell you that either. Okay. Eve-
rything is up for grabs.
Engdahl also returned to this point later, in response to a ques-
tion from employee Wallace about why Shamrock’s competi-
tors are unionized. Engdahl said that, in his opinion, two of the
Company’s competitors (Sysco and US Foods) used the union
“to keep the wages down because everybody’s paid the same
then . . . they don’t do well with incentives.” He also noted that
it takes a supermajority of “70 percent plus one” to decertify or
vote a union out. (GC Exh. 8(a) and (b).)5
Whether antiunion employer statements such as the “slate is
wiped clean” in bargaining are coercive depends on the context
in which they are made. As the Board stated in BP Amoco, 351
NLRB 614, 617 (2007):
[E]mployer statements to employees during an organizing

5 I discredit the testimony of Natalie Wright, who as indicated above
was the HR manager at the time (and is now a part-time HR specialist).
Wright attended the town hall meeting with other managers, and was
called to testify as an adverse witness by the General Counsel under
FRE 611(c). Wright repeatedly refused to say if unions were discussed
at the meeting, insisting that it was just an “educational” meeting,
agreed to answer the General Counsel’s question only when directed
from the bench to do so, and then admitted only that unions were men-
tioned in a video and in reference to the California campaign (Tr. 379–
381). As indicated above, the audio recording secretly made by Phipps
shows that the meeting was entirely about unions.
SHAMROCK FOODS CO. 9
campaign to the effect that bargaining will start from “zero”
or from “scratch” are “dangerous phrase[s],” which carry with
them “the seed of a threat that the employer will become pu-
nitively intransigent in the event the union wins the election.”
Contemporaneous threats or unfair labor practices may lend
additional coercive meaning to the employer's remarks. Such
statements are unlawful and objectionable when, in context,
“they effectively threaten employees with the loss of existing
benefits and leave them with the impression that what they
may ultimately receive depends in large measure on what the
Union can induce the employer to restore.” On the other
hand, such statements are permissible when they merely de-
scribe the bargaining process and/or are made in direct re-
sponse to union promises. Similarly, statements that employ-
ees could lose benefits as a result of bargaining have been
found lawful where they “merely [state] what could lawfully
happen during the give and take of bargaining.” [Citations
omitted].
Here, although some of Engdahl’s other statements at the
meeting were untrue,6 there is no allegation that they were un-
lawful.7 Further, Engdahl did not explicitly say that Shamrock
would take away existing benefits. However, by emphasizing,
exclusively, what the other named and unnamed employers
have intentionally done to reduce employee benefits through
collective bargaining, Engdahl clearly suggested or implied that
Shamrock would do the same thing. See Pittsburgh Press Co.,
252 NLRB 500, 504 (1980); and Madison Kipp Co., 240 NLRB
879 (1979) (while an employer may lawfully support its anti-
union statements with examples where employees at other
companies suffered negative consequences following collective
bargaining, it may not do so in a manner that employees would
reasonably construe as a threat to deliberately pursue the same
result). Moreover, Engdahl made no effort at the meeting to
dispel or temper that implication by assuring employees that
Shamrock would bargain over their benefits in good faith
and/or that their benefits might also go up or stay the same
through the give and take of bargaining. Compare, for exam-
ple, Manhattan Crowne Plaza, 341 NLRB 619 (2004) (finding
no violation where the employer acknowledged that “each set
of negotiations is different”); and Monroe Mfg. Co., 200 NLRB
62 (1972) (same, where the employer stated, “That is not to say

6 For example, there is no “70 percent plus one” requirement to de-
certify a union. In fact, there is no requirement that even 50 percent
plus 1 vote against the union. The NLRB will conduct a decertification
election if 30 percent or more of the unit employees sign a petition to
do so, and the union will be decertified unless 50 percent plus 1 of the
votes cast in the election are in favor of union representation, i.e., the
union loses in the event of a tie vote. See Best Motor Lines, 82 NLRB
269 (1949); NLRB Statements of Procedure, Secs. 101.17–101.18; and
the Board’s website, https://www.nlrb.gov/rights-we-protect/whats-
law/employees/i-am- represented-union/decertification-election.
7 The complaint also alleges that Engdahl “granted employees bene-
fits” on January 28 by telling employees who complained about work-
ing conditions to make an appointment to come see him. See par.
5(g)(2). However, the General Counsel’s posthearing brief does not
address this allegation, and thus it appears to have been abandoned. In
any event, the General Counsel failed to carry the burden of proof and
persuasion.
that anything like that will happen here. We hope that even if
this union is successful [we] will continue to grow.”).
The Company’s posthearing brief (pp. 26–27) suggests that
what Engdahl said or did not say at the January 28 town hall
meeting is insignificant, as Engdahl and other managers repeat-
edly told employees at other meetings that their benefits could
be better, worse, or the same after going through the collective-
bargaining process. However, there is no record evidence that
Engdahl or other managers actually said this to all of the ware-
house employees at any other meeting(s) during the relevant
period. Although Phoenix Warehouse Manager Vaivao made
such a statement a month later, on February 24, it was at a
much smaller meeting with only 8–10 employees. See Exh.
9(a), at p. 13; and Tr. 175–178, 528–530. 8 Moreover, as dis-
cussed below, Vaivao made other statements at the February 24
meeting that were unlawful. And he, Engdahl, and several
other company managers and supervisors committed numerous
other unfair labor practices as well.
Under all the circumstances, therefore, it is likely that em-
ployees would have reasonably understood Engdahl’s remarks,
not merely as a caution that their benefits could go down, but as
an effective threat by a high-level manager that they would go
down, if they supported a union. Accordingly, the statements
were coercive and unlawful.
2. January 28 roundtable meeting (Wright)
The second meeting on January 28 was a smaller
“roundtable” meeting with 15–20 employees, including
Phipps. The meeting was conducted by then-HR Manager
Wright immediately after the town hall meeting. It was the first
of two such meetings Wright conducted that day on different
shifts, and the first of any such meeting she had conducted
since October 2013, the year she was hired. The General
Counsel alleges that Wright unlawfully solicited complaints
and grievances at the meeting and promised to remedy them if
the employees refrained from union activity (GC Exh. 1(g), par.
5(h)).

8 As noted by the Company, the record indicates that Vaivao and
Engdahl held similar small meetings with additional employees on
different shifts. However, evidence fails to establish that all of the
warehouse employees attended the meetings or that Engdahl and
Vaivao made the same statements at all of the meetings. Engdahl testi-
fied that he always speaks off the top of his head at the meetings (Tr.
732–735). And while Vaivao testified that he said wages could go up
or down or stay the same at other small “communication” meetings in
February that were conducted by Wright, he acknowledged that the
meetings were not about the Union and he only made the statement if
one of the employees raised the issue (Tr. 899–901, 931). See also GC
Exh. 7(a), the transcript of the recording of the February 5 communica-
tion meeting (which confirms that the issue never came up and Vaivao
did not make such a statement). Finally, contrary to the Company’s
contention (Br. 28 n. 8), the record is also insufficient to establish that
the Union contumaciously failed to produce recordings from the other
meetings (i.e. recordings of meetings other than those made by Phipps
or Lerma that were put in evidence by the General Counsel) in response
to the Company’s hearing subpoena. Accordingly, the Company’s
request for an adverse inference that recordings of other meetings
would “corroborate the noncoercive context of Shamrock’s discussions
with employees concerning the possible results of unionization” is
denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Wright began by acknowledging that it had “been a while”
since the Company had held roundtable meetings. She said that
the Company was going to try and do it “a little bit more often”
to find out “what’s going on and . . . where [she] could help.”
She also said the Company was going to do it “a little bit dif-
ferently” by having the meetings with smaller groups, as the
large meetings could be “a little cumbersome, a little bit over-
whelming to deal with so much and trying to filter out what
[the] top 10 issues were out of 250 people.” Wright advised
them that she had “made sure” their names would not be re-
vealed to “management” so that they would feel more comfort-
able speaking up at the meeting.
Wright then asked for their “feedback” on recent changes,
what they liked and disliked, and “recommendations [for] more
changes.” Employees voiced various complaints in response,
including that there were no written guidelines or standard pro-
cedures for implementing the changes; that their tools and
equipment (forklifts, pallet jacks, radios, and scanners) were
old and poorly maintained; that there were too few quality con-
trollers scheduled per shift; that they were averaging a lot less
money under the new pay plan; that they had to move more
heavy pallets every day without any incentives or increase in
pay; and that supervisors and managers insulted, disrespected,
and lied to them, and failed to respond when they raised prob-
lems using the Company’s “open door” policy.
Wright’s assistant took notes of the complaints, and Wright
thanked the employees for their feedback and time. Wright
thereafter took the complaints to upper management. (GC Exh.
15(a) and (b); Tr. 362, 383–390, 504.)
An employer’s solicitation of employee grievances during a
union campaign inherently includes an implied promise to rem-
edy them and is unlawful unless the employer has a “past poli-
cy and practice” of soliciting grievances and did not “signifi-
cantly alter[] its past manner and methods” of doing so. See,
e.g., Manorcare Health Services-Easton, 356 NLRB 202
(2010); Barberton Manor, 252 NLRB 380 (1980); and Carbon-
neau Industries, 228 NLRB 597, 598 (1977).
Here, as indicated above, the Teamsters had recently cam-
paigned to organize Shamrock’s warehouse in southern Cali-
fornia. And the Company was obviously aware of it and con-
cerned about the campaign spreading to the Phoenix ware-
house, which the Teamsters had also tried to organize in the
past. Further, there was, in fact, a union campaign ongoing at
the Phoenix warehouse at the time; it was just by a different
union, BCTGM Local 232. Although the campaign was still
covert at that time, and there is no direct evidence that the
Company knew about it, there is strong circumstantial evidence
that the Company at least suspected it was going on. As indi-
cated above, the antiunion town hall meeting with all of the
warehouse employees was held shortly after word of the cam-
paign began spreading “like wildfire” through the warehouse.
Further, the Company held the antiunion meeting at that time
even though, according to Engdahl’s own report, the Teamsters
campaign in California had already failed.
As for the Company’s past practice, there is no dispute that
the Company had a history of holding roundtable meetings with
employees. Phipps himself testified that the Company had held
hundreds of roundtable meetings at the warehouse over the 20
years he had worked there. However, the meetings were usual-
ly held to communicate information to employees, and only
sometimes to solicit their feedback.9 Further, no such meeting
had been held in the past 15 months. And, as indicated by
Wright’s own comments, the January 28 roundtable meeting
was both intended and presented as the first in a series of more
frequent, smaller meetings with employees to solicit their feed-
back.10 Thus, the meeting represented a significant departure
from past practice. Moreover, it was held immediately after the
antiunion town hall meeting, where Engdahl had assured all the
warehouse employees that they did not need a union because
they could talk directly to the Company and it would try to fix
any problems they raised. Thus, it is unlikely that the connec-
tion between the two would have been lost on employees.
Accordingly, Wright’s solicitation of the employees’ com-
plaints violated Section 8(a)(1) of the Act as alleged.
3. February 5 communication meeting (Vaivao)
The February 5 meeting was even smaller than the January
28 roundtable meeting, with only about 10 employees. Alt-
hough HR Manager Wright again attended and occasionally
spoke, the meeting was conducted by Phoenix Warehouse
Manager Vaivao.11 The General Counsel alleges that, like
Wright on January 28, Vaivao unlawfully solicited complaints
and grievances at the meeting and promised to remedy them if
the employees refrained from union activity (GC Exh. 1(g), par.
5(k)).
Vaivao began by saying that it was a “communication fol-
low-up meeting” to the prior roundtable meetings. Like Wright
on January 28, he also explained why the smaller meetings
were being held. He said that the Company had “decided” to
have the smaller meetings after the town hall meeting “to be a
little bit more intimate” so that employees would be more will-
ing to speak up and tell the Company about “some of the issues
that [are] out there, some of the obstacles that [Wright] and I
can remove or report . . . to make sure those are removed.” He
said he wanted them to give him “feedback” on “what is really
bothering” the employees; what the “main concerns” and “big
issues” were. He assured them that he would take notes of their
complaints and get back to them about whether the matter was
“fixed” or not and why. He said the Company was “com-
mit[ted]” to removing “most of the obstacles, as much as we
can.”
As on January 28, employees voiced various complaints in
response, including about wages and benefits, working condi-
tions, scheduling, and the “open door” policy. Vaivao advised

9 Tr. 573–575. I discredit Wright’s testimony to the extent it indi-
cates that soliciting employee complaints was standard practice at the
roundtable meetings (Tr. 383–388). As previously noted (fn. 5),
Wright was not a credible or reliable witness.
10 Although the Company denied in its answer that Operations Vice
President Engdahl and HR Manager Wright were supervisors, it stipu-
lated to their supervisory status at the hearing (Tr. 5–6, 20–21, 53, 65–
66, 117). Their statements at the January 28 meetings are therefore
nonhearsay party admissions under FRE 801(d)(2). See, e.g., Ferguson
Enterprises, 355 NLRB 1121 n. 2 (2010).
11 As with Engdahl and Wright, the Company denied in its answer
that Vaivao was a supervisor, but stipulated to his supervisory status at
the hearing.
SHAMROCK FOODS CO. 11
them that he and Wright would “make sure” the Company
“heard” their concerns and “in some cases “bring [] down a
solution to resolve” them. With respect to the scheduling issues
in particular, he said he would “definitely look into” them and
“make adjustments.” (GC Exh. 7(a), (b); Tr. 523–524.)12
The only significant difference between the context and cir-
cumstances of Vaivao’s solicitation of employee complaints
and Wright’s similar solicitation a week earlier is that Vaivao’s
promise to remedy the solicited complaints was more explicit.
Accordingly, it was unlawful as well.
4. Mid-February union education meeting (Vaivao)
Vaivao thereafter also conducted so-called “union educa-
tion” or “union prevention” meetings with small groups of em-
ployees, including one that employee Wallace attended with
about eight other employees in mid-February.13 The General
Counsel alleges that Vaivao again unlawfully solicited com-
plaints and grievances at the mid-February meeting and prom-
ised to remedy them if the employees refrained from union
activity (GC Exh. 1(g), par. 5(l)).
The only evidence presented and cited by the General Coun-
sel to support this allegation is Wallace’s testimony that Vaivao
“opened the floor to questions” after showing them an anti-
union video, and that he “wanted to know if there [were] any
issues that we wanted to bring up” after Wright explained to
them how their pay and benefits compared to others in the in-
dustry (Tr. 653–654).14 While there is nothing incredible about
this testimony, it is too vague or sketchy to establish that
Vaivao actually solicited complaints or grievances as at the
February 5 communication meeting. Accordingly, the allega-
tion is dismissed.
5. February 24 union education meeting (Vaivao)
Vaivao also held several small meetings on February 24, in-
cluding one that Phipps attended with eight other employees.
The General Counsel alleges that Vaivao committed two addi-
tional violations at that meeting: first, that he unlawfully creat-
ed an impression that the employees’ union activities were
under surveillance by telling them that the Company had an
idea who was organizing; and second, that he unlawfully asked
the employees to ascertain and disclose the union activities of
other employees by asking them to raise their hand to let him
know if another employee had contacted them (GC Exh. 1(g),

12 I discredit Vaivao’s testimony about the February 5 meeting (Tr.
164–170, 175, 262–266). Like Wright, Vaivao was called as an ad-
verse witness by the General Counsel during the case in chief. And like
Wright’s testimony about the January 28 town hall meeting, Vaivao’s
testimony about his role at the February 5 meeting, whether he solicited
employee complaints, and whether any complaints were elicited, is
clearly contradicted by the audio recording of the meeting secretly
made by Phipps.
13 I discredit Vaivao’s testimony (Tr. 155–156) that no such “union
education” or “union prevention” meetings were held, as the record as a
whole clearly establishes otherwise. See, e.g., GC Exhs. 9(a), (b), and
10(a), (b), the recordings and transcripts of his subsequent remarks at
the February 24 and March 26 meetings, discussed infra.
14 Unlike the other meetings at issue, there is no audio recording of
the mid-February meeting (apparently because neither Phipps nor Ler-
ma attended it).
par. 5(m)(1), (2)).
Vaivao began by saying that it was another “union educa-
tion” meeting so that the employees knew the “essentials.” He
said that employees, and even a meat plant manager, had re-
cently come up to tell him and Brian Nicklen, the inbound
manager, that they were being approached by union supporters,
“so we kind of have some ideas . . . of who’s out there.” He
also said that some had expressed concern that they might be
seen talking to the union supporters on the Company’s surveil-
lance cameras. He assured the employees that the Company
does not use the cameras to conduct surveillance of such activi-
ties. Vaivao also told the employees that, if they did not want
to sign a union card or be approached anymore, “tell them no,
you won’t be a part of it [and] [r]aise your hand, say, hey, man,
this guy is bugging me.” He then listed various reasons why
they should be cautious or wary of supporting a union.15 As at
the mid-February educational meeting, he also showed them an
antiunion video. (GC Exh. 9(a), (b); Tr. 529–530.)16
An employer unlawfully creates an impression of surveil-
lance when employees would “reasonably assume” from the
employer’s statements that management had placed their union
activities under surveillance, i.e. that “members of management
are peering over their shoulders, taking note of who is involved
in union activities, and in what particular ways.” Flexteel In-
dustries, 311 NLRB 257 (1993). Thus, there is no violation
where the employer’s statements indicate that the information
concerning the employees’ union activities was voluntarily
provided to the employer by their coworkers. See, e.g., North
Hills Office Services, 346 NLRB 1099, 1103 (2006) (supervi-
sors’ statements to employees that two of their coworkers had
reported that they had driven employees to a union meeting or
distributed union literature during working hours did not un-
lawfully create an impression of surveillance in the absence of
any evidence that management solicited the information); and
Bridgestone Firestone South Carolina, 350 NLRB 526 (2007)
(plant manager’s letter to employees thanking “the many team
members who have chosen to provide information to me re-
garding the recent [union organizing campaign]” did not unlaw-
fully create the impression of surveillance). Here, Vaivao’s
statements indicated that he knew about the employees’ union
activities because employees and a manager had voluntarily
informed him and Nicklen after being approached by union
supporters. Accordingly, this allegation is dismissed.
On the other hand, Vaivao’s additional statement during his
antiunion presentation, that employees who receive unwanted
solicitations should “raise [their] hand” and let management
know the union supporters are “bugging” them, was clearly
unlawful under Board precedent. See, e.g., Sunbeam Corp.,
287 NLRB 996, 997 (1988) (company president unlawfully
asked employees to report the identity of union supporters by
advising them to “tell these union pushers [to] . . . just go away

15 For example, like Engdahl at the January 28 antiunion town hall
meeting, Vaivao told the employees that it would take “70 [percent]
plus one” to vote a union out. As previously noted (fn. 6), however,
this is untrue.
16 Again, I discredit Vaivao’s testimony about the meeting (Tr. 175–
190), as it is contradicted by the recording and transcript of the meeting
and other evidence consistent therewith.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
and leave you alone, [and] [i]f they won’t leave you alone, let
me know about it, and we will see that something is done,” as
the request was broad enough to cover protected union solicita-
tion); and Hawkins-Hawkins Co., 289 NLRB 1423 (1988)
(plant manager unlawfully told employees that “if anyone was
harassed by the union or by fellow employees” they should
“contact management and they would take care of it,” as the
manager did not explain what he meant by “harassment”). See
also Winkle Bus Co., 347 NLRB 1203, 1204 (2006); Blooming-
ton-Normal Seating Co., 339 NLRB 191, 193 (2003), enfd. 357
F.3d 692 (7th Cir. 2004); and Tawas Industries, 336 NLRB
318, 322 (2001), and additional cases cited there. 17 Accord-
ingly, that allegation is sustained.
6. March 26 union prevention meeting (Vaivao)
Vaivao held another meeting on March 26 with a small
group of employees, including Lerma. James Allen, a new HR
representative at the time, was also present. The General
Counsel alleges that Vaivao made several more statements at
the meeting that unlawfully created the impression of surveil-
lance; specifically, that the Company knows everything that is
going on and who they are, that there was a union meeting off
the property a few weeks earlier, and who attended the meet-
ings (GC Exh. 1(g), par. 5(n)).18
Vaivao began by saying that it was another “union preven-
tion” meeting. He said the Company was continuing with such
meetings because employees were “getting fed up” with the
union supporters. He said three employees had come up to him
that week complaining about being approached to join the Un-
ion and asking him if he could make them stop. Vaivao ex-
plained that the union supporters had the right to organize.
However, he said they were “disgruntled” and had “personal
agendas” against the Company. He said, “We know that. We
know who they are. We know they’ve been conducting meet-
ings offsite.” Vaivao said that the union supporters were
spreading “lies” and that there was nothing to “substantiate”
what they were “throwing out there.” He said it was his job to
“protect” employees by telling them the “truth.” He then re-
peated that,
[W]hoever is doing that out there, we know who they are, be-
cause they come the next day to me. They come the next day

17 Although Vaivao testified that an employee had complained that
union supporters had harassed him by throwing pens at him when he
refused to sign a card (Tr. 182), Vaivao did not mention this at the
meeting. Nor does the Company’s posthearing brief cite any other
basis to distinguish the cited Board precedent; indeed, the brief does not
even address the allegation.
18 Although the complaint alleges that Vaivao, Nicklen, and an un-
known HR representative committed the alleged violations at the
March 26 meeting, the General Counsel’s posthearing brief identifies
only Vaivao as the offending speaker. The complaint (par. 5(o)) also
alleges that, on the same date, Vaivao, Nicklen and an unknown HR
representative informed employees that it would be futile for them to
select the Union as their bargaining representative by telling employees
that shifts cannot be changed. However, the General Counsel’s
posthearing brief does not address this additional allegation, and it
therefore appears to have been abandoned. In any event, the General
Counsel has failed to carry the burden of proof and persuasion.
to tell me that. . . . So I know who they are. I know there’s
meetings out there. I know there was a meeting a . . . few
weeks ago. And I know who attended.
Vaivao repeated the same point twice more later in the meet-
ing. Thus, after Allen had finished introducing himself and
addressing the employees, Vaivao said,
I appreciate everybody showing up. . . . But we’re going to
continue to have all the meetings. As long as there’s guys out
there, I’m going to review propaganda for the union organiz-
ers. . . . I know who they are. I know exactly who they are.
I know who’s been asked, the guys . . . So know that I’m out
there. I’m going to be vigilant. . . .I’m going to be vigilant,
because I know what the truth is.
And at the very end of the meeting, after again discussing some
of the reasons not to support a union,19 he said,
And you should feel that way. You should stand there and
tell whoever it is, dude no. If you talk to me again—several
guys are . . . coming up to me and say[ing] I want . . . a
statement that these guys will leave me alone. . . . So that’s
where we’re at right now. Until we have that, we have a little
different conversation with them. But we know who the guys
are. I want you guys to be aware of that. I want you guys to
understand that.
(GC Exh. 10(a), (b).)
As discussed above, an employer’s statements concerning its
knowledge of employees’ union activities do not unlawfully
create the impression of surveillance where the statements indi-
cate that the information was voluntarily provided to the em-
ployer by their coworkers. Here, as at the February 24 meeting,
Vaivao indicated that employees who did not support the Union
had voluntarily provided the information to management about
who the union supporters were and who attended the meetings.
Accordingly, these allegations are likewise dismissed.
7. April 29 communication meeting (Engdahl)
The Company held another small communication meeting on
April 29 with about 8–10 mostly senior employees from the
first shift, including Phipps. Both Vaivao and Operations VP
Engdahl attended and spoke at the meeting. The General
Counsel alleges that Engdahl made several unlawful statements
during the meeting; specifically, that he unlawfully promised
and granted benefits to employees by guaranteeing or commit-
ting to them that there would not be a layoff during the slow
summer season like the previous year; created the impression of
surveillance by telling employees that the Company understood
who was behind the Union; threatened employees with unspeci-
fied reprisals by telling them the Union will hurt them and eve-
rybody in the future; and informed employees that it would be
futile for them to support the Union by telling them that the

19 For example, Vaivao again incorrectly told the employees that it
takes “70 percent plus one” to vote a union out.
SHAMROCK FOODS CO. 13
Company does not have to agree to anything through collective
bargaining (GC Exh. 1(g), par. 5(t); Tr. 19–23).
Engdahl began the meeting by handing out a document,
which he said was “going out to every person in this building.”
He said the document was a “follow-up” on the issue of layoffs
that had been discussed in previous meetings and “some other
things last year that we felt we didn’t handle correctly.” He
then stated,
So, we’re committed to the point where we put it in writing
now, okay, that we will not do these things. And you can take
that to the bank. So, we owed you that feedback, now we’ve
given it to you. It’s in writing. And it’s probably not so im-
portant for you all. It’s more of a lower on the totem pole for
folks who were worried about layoffs and things like that.
Well, so this will ease some of their fears.
But, I wanted to start by giving this all to you all and have a
little discussion with you on what’s going on here with this
union organizing stuff, okay. And I understand who’s behind
it. I understand that you don’t care what anybody else thinks.
I understand that you’re doing it for your own personal rea-
sons, and that’s great, have at it. But, what I am going to do is
straighten out some things with some facts, okay, and some
truths. And I’m going to call bullshit on a lot of stuff that’s
being spread, because its wrong. It will hurt Shamrock. It
will hurt all of you. It will hurt everybody in the future, okay.
And I don’t want that to happen.
This is all my opinion. And I’m entitled to my opinion, just
like you’re entitled to yours, okay. I’ve been a Teamster for
seven years. I was in the union for seven years. I understand it
inside and out. I know what it’s good for and what it’s not
good for. And it’s not good for us here at Shamrock, I can tell
you that, okay.
Engdahl then discussed various reasons why, in his “opin-
ion,” the Union would not be good for them. For example, he
said that the Union would never negotiate a higher wage rate
for them than at Sysco or U.S. Foods; that nothing would
change with respect to their health insurance because it is man-
dated by “Obamacare” and there was only one “bucket of mon-
ey” to divide up between wages, benefits, and equipment to run
the warehouse; and that “nobody can say whether [a union
contract] would be better or worse.” He then closed by saying,
Remember, the company pays wages, benefits, sets work
conditions—not the union. The only thing the union can do is
come to collective bargaining and ask. They can ask for
things. The company doesn’t have to agree to anything, noth-
ing—other than what they want to. It’s bargaining. Bargain-
ing can go on forever. It can never end. It’s collective bar-
gaining. All you have to do is bargain in good faith. All
right?
(GC Exh. 12(a), (b).)20

20 As indicated above, Vaivao also spoke at the meeting, addressing
various “rumors” and statements by union supporters that he said were
“not true.” Again, I discredit Vaivao’s and Engdahl’s testimony about
It is well established that an employer violates Section
8(a)(1) of the Act by promising or granting benefits during a
union campaign in order to dissuade its employees from sup-
porting the union. See, e.g., Sisters Camelot, 363 NLRB No.
13, slip op. at 7 (2015) (“The lawfulness of an employer’s
promise of benefits during a union organizational campaign
depends upon the employer’s motive. Thus ‘[a]bsent a show-
ing of a legitimate business reason for the timing of a grant of
benefits during an organizing campaign, the Board will infer
improper motive and interference with employee rights under
the Act.’”); Network Dynamics Cabling, 351 NLRB 1423, 1424
(2007) (the Board examines “the record evidence as a whole,
including any proffered legitimate reason for [granting the ben-
efit], to determine whether “it supports an inference that [it]
was motivated by an unlawful purpose”); Real Foods Co., 350
NLRB 309, 310 (2007) (“The granting of benefits to employees
in the middle of union organizational activity ‘is not per se
unlawful where the employer can show that its actions were
governed by factors other than the pending election.’ The Gen-
eral Counsel bears the burden of proving, by a preponderance
of the evidence, ‘that employees would reasonably view the
grant of benefits as an attempt to interfere with or coerce them
in their choice on union representation.’ If the General Counsel
makes such a showing, the burden shifts to the employer to
demonstrate a legitimate business reason for the timing of the
benefit, such as by proving that the benefit was ‘part of an al-
ready established Company policy and the employer did not
deviate from the policy upon the advent of the union.’”); and
Donaldson Bros. Ready Mix, 341 NLRB 958, 961–962 (2004)
(“[A] grant of benefits . . . 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.
To meet this burden, the employer needs to establish that the
benefits conferred were part of a previously established compa-
ny policy and the employer did not deviate from that policy on
the advent of the union.”) (Citations and footnotes omitted).
Engdahl’s no-layoff commitment was clearly unlawful under
these principles. First, it plainly constituted a promise or grant
of a substantial benefit.21 Hertz Corp., 316 NLRB 672, 688
(1995); and Justrite Mfg. Co., 238 NLRB 57, 61 (1978). Sec-
ond, there is no dispute that the union campaign was well un-
derway at that point and that the Company knew about it.22
Indeed, the Company had been holding meetings with employ-

what they said at the meeting (Tr. 225–234, 740–741), as it is clearly
contradicted by the recording and transcript.
21 Although the actual document containing the written commitment
is not in evidence, Engdahl’s above-quoted statements to employees at
the meeting—that the Company was “committed” to no layoffs “to the
point where we put it in writing,” and that they could “take that to the
bank”—are sufficient to establish the promise or grant of benefit. It is
therefore unnecessary to pass on the General Counsel’s request (GC Br.
20 n. 21) for an adverse inference based on the Company’s failure to
produce a copy of the document in response to paragraph 37 of the
General Counsel’s August 25 subpoena duces tecum (GC Exh. 2(e),
attachment 1, p. 6).
22 See Hampton Inn NY-JFK Airport, 348 NLRB 16, 17 (2006)
(grant of benefits during union campaign is not unlawful unless em-
ployer was aware of it).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
ees for the past 2 months to address and respond to the cam-
paign. Moreover, Phipps had announced the union campaign in
the breakroom just a few days earlier, on April 26 and 27, and
Engdahl again specifically addressed the campaign immediate-
ly after announcing and distributing the no-layoff commitment.
Third, Engdahl acknowledged at the hearing that the Company
had never made such a written commitment in the past, not-
withstanding that there had occasionally been other layoffs (Tr.
759).
As for general assertions of harm resulting from union or-
ganizing, while not unlawful by themselves, such assertions
may become unlawful “if uttered in a context of other unfair
labor practices that ‘impart a coercive overtone’ to the state-
ments.” Reno Hilton, 319 NLRB 1154, 1155 (1995) (citations
omitted). Thus, in Reno Hilton the Board found that the em-
ployer’s vague assertion that the “union would not benefit you
in any way and could hurt you seriously” was unlawful in light
of the employer’s numerous other unfair labor practices, includ-
ing threats of closure, discharge, and loss of benefits, which
gave the assertion “both specificity and force.” Accord: Homer
D. Bronson Co., 349 NLRB 512, 540–541 (2007) (finding em-
ployer’s statement that the union was “just going to hurt” un-
lawful for the same reason), enfd. 273 Fed. Appx. 32 (2d Cir.
2008).23
Here, Engdahl’s statement to employees that supporting the
Union “will hurt” them in the future was likewise made in the
context of numerous other unfair labor practices. Indeed, as
discussed above, Engdahl himself had previously threatened all
of the employees at the January 28 town hall meeting with loss
of benefits if they supported the Union. Moreover, as fully
discussed infra, just a few weeks before the April 29 meeting,
the Company unlawfully discharged one of the more active
union supporters (Wallace) after he openly complained about
the Company’s health benefits.24 Accordingly, as in Reno Hil-
ton, the statement violated the Act.
With respect to statements about the bargaining process, the
lawfulness of such statements may depend on both their content
and their context. See Airtex, 308 NLRB 1135 fn. 2 (1992).
Compare also Medieval Knights, LLC, 350 NLRB 194, 195
(2007) (finding no objectionable conduct where the employer,
which had not committed any other objectionable or unlawful
conduct, stated during a hypothetical exercise that an employer
does not have to agree to any specific proposals, that all negoti-
ations were different, that the bargaining process could take
weeks, months, or even more than a year, and that an employer

23 See also Downtown Toyota, 276 NLRB 999 (1985), cited by the
General Counsel, where the Board affirmed the judge’s finding that the
employer’s statements that the union is “only going to hurt you guys”
and “I’ll make more money and you guys will make less” were unlaw-
ful threats of unspecified reprisal and/or of futility.
24 Given this background of other unfair labor practices, the formal
nature of the meeting, and Engdahl’s high-level corporate position, it
makes no difference that Engdahl couched the statement and other
imparted “truths” as his “opinion.” See generally Saint Luke's Hospi-
tal, 258 NLRB 321, 322 (1981); and J.S. Abercrombie Co., 83 NLRB
524, 530 (1949), affd. per curiam 180 F.2d 578 (5th Cir. 1950). Nor
does the Company argue otherwise; its posthearing brief does not spe-
cifically address the allegation.
could “stall out the negotiations” by “giving in to lesser items
or addendums” “that would make them show they were bar-
gaining in good faith but not really getting anything done”),
with Kajima Engineering, 331 NLRB 1604, 1616 (2000) (find-
ing a violation where the employer, which committed numerous
other unfair labor practices, stated during a preelection manda-
tory meeting that the company “could drag their heels and
make it go on forever” and just had to “show good faith efforts
of negotiations for at least an hour per month”).
Here, as discussed above, Engdhal made the statement (“The
company doesn’t have to agree to anything, nothing . . . Bar-
gaining can go on forever. It can never end . . . All you have to
do is bargain in good faith”) after unlawfully telling employees
that supporting the Union “will hurt” them in the future. More-
over, he had previously unlawfully threatened employees at the
January 28 town hall meeting with loss of benefits if they sup-
ported the union. Thus, considered in context, Engdahl’s
statement would reasonably be viewed by employees, not as a
mere hypothetical like in Medieval Knights, but as the hand-
writing on the wall like in Kajima. Accordingly, it violated the
Act as well.
As for Engdahl’s statement that he understood who was be-
hind the union campaign, as previously discussed Vaivao had
repeatedly stated in prior meetings in both February and March
that employees had volunteered such information to manage-
ment. Moreover, as indicated above, Phipps had recently an-
nounced that he was behind the campaign. Thus, even if some
of the employees at the April 29 meeting had not attended
Vaivao’s prior meetings, it is unlikely they would reasonably
assume at that point that the employer had obtained the infor-
mation through surveillance. Accordingly, like the similar
allegations regarding the February and March meetings, this
allegation is dismissed.
B. Other Alleged Unlawful Statements or Conduct
The complaint also alleges numerous other incidents during
the same period (January–July 2015) where managers or super-
visors made unlawful statements to employees or engaged in
other unlawful conduct. The complaint alleges that these addi-
tional violations were committed by various managers and
supervisors at all levels of the Company, including Presi-
dent/CEO Kent McClelland, Operations VP Engdahl, Ware-
house Manager Vaivao, Safety Manager Joe Remblance, In-
bound/Receiving Supervisor Dave Garcia, Outbound/Shipping
Supervisor Jake Myers, Sanitation Supervisor Karen Garzon,
and Floor Captains Zack White and Art Manning.
1. January 25 conversation (White)
The General Counsel alleges that, on January 25 (3 days be-
fore the January 28 town hall meeting), Floor Captain White
unlawfully interrogated Phipps about the employees’ union
activities and created the impression of surveillance by telling
him that there were rumors in the warehouse about the organiz-
ing campaign (GC Exh. 1(g), par. 5(f)). The Company disputes
both that the floor captains are supervisors within the meaning
of the Act and that White made any unlawful statements during
his conversation with Phipps.
As indicated above, Phipps is a longtime forklift operator at
the warehouse and was the person who contacted BCTGM
SHAMROCK FOODS CO. 15
Local 232 in November 2014. He reports to Johnny Manda or
Richard Gomez, whom he considers his immediate supervisors.
He and other warehouse employees also receive assignments
and directions from floor captains, including White and Man-
ning, both of whom work on the loading dock. The floor cap-
tains’ job is to expedite and make the work run smoothly. They
do so by assigning or reassigning employees to particular areas
or routes at particular times, directing the warehouse workers to
perform particular tasks, and by deciding when to send an em-
ployee home or keep them late after their shift. They issue such
assignments and directions based on their own judgment of
who is best able to perform the work, regardless of whether the
task or assignment is consistent with that individual’s job de-
scription or prepared schedule for the day, and without consult-
ing or seeking permission from anyone. And they are held
responsible by the warehouse managers, who they meet with on
a weekly basis, if there is an interruption or delay in the work-
flow.25
On January 25, Phipps happened to run into White at the
time clock as they were both arriving for work. As they walked
together to their respective work areas, White asked Phipps if
he had heard about the union organizing in California. Phipps
said he had heard rumors about it. White said the Teamsters
were openly handing out cards to the drivers at the gates there.
He told Phipps there were rumors that there was also an organ-
izing campaign in the Phoenix warehouse. Phipps asked what
White what he knew about it, as he did not want to have the
Teamsters there. White said he had heard rumors that whoever
was organizing was getting really close to getting a union in.
He asked Phipps if he knew anything about it. Phipps did not
directly reply, but said he remembered that the Company had
unlawfully fired employees for supporting the Teamsters organ-
izing attempt in 1998; that he knew what his rights were; and
that he wanted to protect himself.26
Under Section 2(11) of the Act, an individual is a supervisor
if he/she possesses, in the interest of the employer, at least one
of the types of authority listed therein.27 The burden is on the
party asserting supervisory status to prove it. NLRB v. Ken-
tucky River Community Care, 532 U.S. 706, 710–713 (2001).
Here, the General Counsel contends that the floor captains
are supervisors because they possess the authority to assign
and/or responsibly direct the warehouse employees using inde-

25 The foregoing findings regarding the floor captains’ supervisory
authority and duties are based on the credible testimony of Phipps (Tr.
485–492), Wallace (Tr. 647–648), and Lerma (764–766, 773, 779, 852)
regarding their personal experiences and observations while working
with White, Manning, and the other floor captains.
26 The foregoing summary of the January 25 conversation is based
on Phipps’ testimony (Tr. 499, 612–617) and his May 2015 pretrial
affidavit (R. Exh. 1, at 20). The Company did not call White to testify
about the conversation.
27 See 29 U.S.C. Sec. 152(11) (“The term ‘supervisor’ means any in-
dividual having authority, in the interest of the employer, to hire, trans-
fer, suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in connec-
tion with the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent judg-
ment.”)
pendent judgment.28 As indicated above, the record supports
this contention. See Oakwood Healthcare, Inc., 348 NLRB
686, 687, 693 (2006) (an individual has such authority if he/she
has the authority to assign employees to a place, overtime peri-
od, or significant overall duties, or direct employees to perform
tasks using judgment that involves the exercise of discretion
that is more than routine or clerical and not dictated or con-
trolled by detailed instructions, and is held responsible or ac-
countable for performance of those tasks). See also Golden
Crest Healthcare, 348 NLRB 727, 730 (2006); and Croft Met-
als, Inc., 348 NLRB 717 (2006). 29 Moreover, as noted by the

28 The record also contains some evidence that the floor captains
have the authority to effectively recommend discipline; however, the
General Counsel’s posthearing brief does not contend that the floor
captains are supervisors on that basis.
29 The testimony of Phipps, Wallace, and Lerma regarding the floor
captains’ authority to assign and responsibly direct employees using
independent judgment is conclusory and lacks supporting detail in
some respects, which would normally mean that it fails to satisfy the
burden of proof. See G4S Regulated Security Solutions, 362 NLRB
No. 134, slip op. at 2 (2015), and cases cited there. However, it is not
fatal to the General Counsel’s case under the particular circumstances
here. On August 25, 2 weeks before the hearing, the General Counsel
served a subpoena duces tecum on the Company requesting various
documents, including documents relating to the duties of the floor
captains (GC Exh. 2(e), attachment 1, pars. 1–7). The Company subse-
quently filed a petition to revoke these and other requests, but the peti-
tion was denied in relevant part by order dated September 4 (GC Exh.
2(a)). Nevertheless, the Company thereafter failed to timely produce
any documents responsive to the requests at the hearing, either on Sep-
tember 8 as required by the subpoena, or on September 9. After a
lengthy discussion of the matter with the parties, I concluded that the
Company had failed to make a good-faith effort to timely comply with
the subpoena requests as required, citing McAllister Towing, 341
NLRB 394 (2004), enfd. 156 Fed. Appx. 386 (2d Cir. 2005). Con-
sistent with McAllister and other Board decisions, at the General Coun-
sel’s request I therefore issued a variety of evidentiary sanctions against
the Company, including permitting the General Counsel to introduce
secondary evidence and barring the Company from cross-examining the
General Counsel’s witnesses or presenting any contrary testimony or
other evidence on the subjects or issues to which the subpoena requests
were addressed. See also M.D. Miller Trucking, 361 NLRB No. 141,
slip op. at 1 fn. 1 and JD. at 5 (2014); Perdue Farms, Inc., 323 NLRB
345, 348 (1997), affd. in relevant part 144 F.3d 830, 834 (D.C. Cir.
1998); Roofers Local 30 (Associated Builders and Contractors, Inc.),
227 NLRB 1444, 1449 (1977); and Bannon Mills, 146 NLRB 611, 614
n. 4, 633–634 (1964). I also ruled that such sanctions would include
appropriate adverse inferences (see, e.g., Chipotle Services, LLC, 363
NLRB No. 37, slip op. at 1 n. 1 (2015); and Metro-West Ambulance
Service, 360 NLRB No. 124, slip op. at 1 and fn. 13 (2014)), but re-
served ruling on exactly what those inferences would be until after
reviewing all the evidence and the parties’ posthearing briefs. (Tr. 53–
126.) Having now done so, I grant the General Counsel’s request (Br. 4
n. 5) and find, for purposes of this case, that the Company’s contuma-
cious failure to produce the subpoenaed documents supports an adverse
inference that they would have corroborated the testimony of Phipps,
Wallace, and Lerma and provided additional evidence to establish that
the floor captains have the authority to responsibly direct employees
using independent judgment as required under Section 2(11) of the Act
as interpreted and applied by the Board in Oakwood Healthcare and
subsequent cases. See generally Essex Valley Visiting Nurses Assn.,
352 NLRB 427, 441–444 (2008), reaffd. 356 NLRB No. 18 (2010),
enfd. 455 Fed. Appx. 5 (D.C. Cir. 2012).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
General Counsel, the record also contains so-called “secondary
indicia” supporting supervisory status; specifically, that the
captains are paid more than the warehouse workers and regular-
ly attend management meetings. See generally Sheraton Uni-
versal Hotel, 350 NLRB 1114, 1118 (2007). Accordingly, the
General Counsel has satisfied the burden of establishing that
White and Manning are supervisors.30
However, the record fails to establish that White unlawfully
interrogated Phipps. The relevant test is whether, under all the
circumstances, the questioning would have reasonably tended
to restrain or coerce an employee in the exercise of union or
other protected concerted activity. See Rossmore House, 269
NLRB 1176 (1984), affd. sub. nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In
applying this test, the Board typically considers a number of
factors, including the identity of the questioner, the nature of
the relationship between the supervisor and the employee,
whether there is a history of employer hostility to union activi-
ty, the place and method of interrogation, the nature of the in-
formation sought, and the truthfulness of the employee’s reply.
See Intertape Polymer Corp., 360 NLRB No. 114, slip op. at 1
(2014), enfd in relevant part 801 F.3d 224 (4th Cir. 2015); and
Fresh & Easy Neighborhood Market, Inc., 356 NLRB 546, 556
(2011), enfd. in relevant part 468 Fed. Appx. 1, 3 (D.C. Cir.
2012), and cases cited there.
Here, there are some factors supporting the General Coun-
sel’s contention that White’s remarks and questions were coer-
cive. White and Phipps had never had such conversations pre-
viously,31 the union campaign at the warehouse was still covert,

In its posthearing brief (p. 25) the Company argues that, not only
should I decline to impose any adverse inference against it for failing to
produce the subpoenaed documents, but I should impose an adverse
inference against the General Counsel. The Company argues that such
an adverse inference is warranted because the General Counsel failed to
call or question White or Manning themselves regarding their supervi-
sory authority. To paraphrase the D.C. Circuit, the Company’s argu-
ment “is not only meritless, it reflects real chutzpah.” Fallbrook Hospi-
tal Corp., v. NLRB, 785 F.3d 729, 733 (D.C. Cir. 2015). There is no
record basis to assume that White and Manning would have testified
favorably to the General Counsel. See generally Torbitt & Castleman,
Inc., 320 NLRB 907 n. 6 (1996), enfd. 123 F.3d 899, 907 (6th Cir.
1997); and International Automated Machines, 285 NLRB 1122
(1987), enfd. mem. 861 F.2d 720 (6th Cir. 1988) (an adverse inference
against a party for failing to call a witness is inappropriate unless it may
reasonably be assumed that the witness would have testified favorably
to that party). Moreover, without the subpoenaed documents, the Gen-
eral Counsel would not have been able to fully cross-examine or im-
peach them regarding their testimony. Finally, the sole authority cited
by the Company for applying an adverse inference against the General
Counsel—the judge’s decision in Desert Pines Golf Club, 334 NLRB
265, 268 (2001)—has no precedential weight as the Board expressly
disavowed the judge’s discussion of the issue (see fn. 1).
30 The General Counsel also alleges and asserts that the floor cap-
tains are agents of the Company under 2(13) of the Act. However, the
General Counsel’s posthearing brief fails to specify the evidentiary
basis for such a finding, and it is unnecessary to reach the issue given
my finding that they are supervisors.
31 I credit Phipps’ uncontroverted testimony in this regard (Tr. 499).
Phipps also denied ever speaking to Manning specifically about the
union campaign (Tr. 613–615) and Manning confirmed this (Tr. 970).
and there is no evidence that Phipps’ role had been revealed to
management at that point. Further, Phipps avoided directly
answering White’s questions, specifically mentioning the Com-
pany’s previous unfair labor practices during the 1998 union
campaign.32
However, White was a low level supervisor, the conversation
arose casually, after a chance encounter at the time clock, and
nothing in the record indicates that White’s demeanor or tone
or was hostile or threatening in any way. Further, Phipps knew
that word of the union campaign had been spreading “like wild-
fire” through the warehouse, notwithstanding his attempts to
keep it covert, and White’s remarks and questions did not seek
or invite any additional or specific information such as the
identity of the union supporters. Finally, over 16 years had
passed since the 1998 Teamsters campaign, and the Company
had not at that point committed any further unfair labor practic-
es in response to the current BCTGM campaign. On balance,
therefore, it is unlikely that White’s remarks and questions
would have reasonably tended to restrain or coerce an employ-
ee in exercising the right to engage in union activity. Cf. Han-
cock, 337 NLRB 1223, 1224 (2002) (reaching same conclusion
under similar circumstances). Accordingly, the allegation is
dismissed.
The record likewise fails to establish that White unlawfully
created the impression of surveillance. An employer’s general
statements about hearing “rumors” of a union campaign do not
create an impression of surveillance absent evidence that the
employer could only have learned of the rumor through surveil-
lance. See South Shore Hospital, 229 NLRB 363 (1977), and
cases cited there.33 There is no such evidence here. According-
ly, this allegation is dismissed as well.
2. January 28 conversation (Myers)
The General Counsel also alleges that, on January 28, shortly
after the town hall meeting, Outbound/Shipping Supervisor
Myers unlawfully interrogated Wallace about his union sympa-
thies (GC Exh. 1(g), par. 5(i).)
Wallace is a warehouse loader who had worked at the Phoe-
nix facility for a little over 6 years, since May 2008. He had
not been aware of the union campaign prior to the January 28
town hall meeting, but signed a union card later that evening at
a local Denny’s restaurant. Myers is an admitted supervisor
and directly supervised Wallace.34
The subject conversation occurred about 30 minutes after the

32 At the hearing, Phipps testified that he was also concerned about
White’s questioning because White reported to Shipping Supervisor
Myers, who was known to be very antiunion (Tr. 499).
33 Flexsteel Industries, 311 NLRB 257 (1993), cited by the General
Counsel, is inapposite. In that case, the Board distinguished South
Shore Hospital and found a violation because the employer’s personnel
manager twice stated to an employee that he had heard rumors about
that employee’s union activity, and the statements were accompanied
by unlawful interrogations and implicit threats. As indicated above,
White’s reference to “rumors” concerned the union campaign generally
rather than Phipps’ own union activities, and his accompanying ques-
tions did not constitute unlawful interrogation.
34 As with Engdahl, Wright, and Vaivao, the Company denied in its
answer that Myers was a supervisor, but stipulated to his supervisory
status at the hearing.
SHAMROCK FOODS CO. 17
town hall meeting ended. Wallace was working at the loading
dock door, when Myers walked up to him and asked what he
thought about the union. Wallace replied that he had talked to
his dad, a neighbor, and a Sysco
Driver and they said that union workers have better benefits,
but he was going to do his own research. Myers nodded his
head in agreement and walked off.35
Unlike White’s previous conversation with Phipps, the bal-
ance of relevant factors supports the allegation that this conver-
sation was coercive and unlawful. Myers was Wallace’s im-
mediate supervisor, he purposefully approached Wallace at his
work station and questioned him directly about his personal
views of the union, and he did so shortly after a formal meeting
with all of the warehouse employees where a high-level corpo-
rate official expressed opposition to the union and unlawfully
threatened employees with reduced benefits if they supported it.
Further, Wallace, who was not an open union supporter, gave
Myers a noncommittal response. Cf. Intertape Polymer Corp.,
above (finding a violation under similar circumstances).
3. January 28 incident at Denny’s (Manning)
The General Counsel also alleges that, later that evening,
Floor Captain Manning engaged in surveillance of the employ-
ees’ union activities at the local Denny’s restaurant (GC Exh.
1(g), par. 5(j)).
As discussed above, the union campaign was still covert at
the end of January. Phipps was meeting with small groups of
employees at that time, but only organizing-committee mem-
bers and employees they were sure supported the Union were
invited. One such meeting was held at a local Denny’s restau-
rant about a quarter mile from the warehouse on the evening of
January 28. Phipps and two union representatives arrived at
around 5:30 p.m., and about five to six warehouse employees
showed up between 6:30 and 7 p.m. They all sat a table in the
very back that was not visible from the lobby.
Phipps stayed until about 7:30 p.m. As he was going out the
door, he ran into Manning, who, as found above, is a company
supervisor. Manning was standing on the handicapped ramp
outside the front of the restaurant talking to an employee who
had just signed a card. Phipps was surprised to see Manning
there, as directions had been given not to invite captains to the
meetings.36 And there is no credible evidence that anyone had
done so, or that Manning was at Denny’s for any reason other
than to gather information about the meeting.37

35 I credit Wallace’s testimony about the conversation (Tr. 646–650).
Myers admitted that he stopped and talked to employees while making
his daily rounds on the dock after the meeting. Although he testified
that he only asked employees if they had any questions about the meet-
ing, he could not recall his conversation with Wallace; indeed, he could
not recall whether he even spoke to Wallace. (Tr. 863–864, 867.)
36 The foregoing findings are based on the credible testimony of
Phipps (Tr. 518–520, 597) and Wallace (Tr. 651–652), who as men-
tioned above was one of the employees who attended and signed a card
at the meeting.
37 I discredit Manning’s testimony that he was “asked by a couple
employees . . . would [he] go to the meeting” and that all he knew was
that it had “something to do with work” (Tr. 967–968). First, Manning
never identified who those employees were. Second, while Manning
had met with Phipps offsite to discuss work issues in the past, he admit-
It is unlawful for a manager or supervisor to go to an offsite
location such as a restaurant without an invitation or any other
legitimate justification to observe employees’ union activities
during nonworking time. See, e.g., Ivy Steel & Wire, Inc., 346
NLRB 404 (2006); North Hills Office Services, 344 NLRB
1083, 1095 (2005); and Munsingwear, Inc., 149 NLRB 839,
846 (1964), and cases cited there. As indicated above, the rec-
ord evidence indicates that that is precisely what Manning did.
38 Accordingly, his conduct violated the Act as alleged.
4. April 27 conversation (Manning)
The General Counsel also alleges that, a few months later, on
April 27, Manning unlawfully created the impression of sur-
veillance by telling Phipps that the Company knew he had re-
cently announced the union campaign in the breakroom, and
that he had better watch his back because the Company was
watching him.39
As discussed above, Phipps publicly announced the union
campaign in the breakroom on April 26 and 27. On the latter
date, both Warehouse Manager Vaivao and another manager
were present in the breakroom during at least part of the an-
nouncement. A while later, after Phipps had returned to work
on his forklift, Manning came by in a cart and asked Phipps if it
was true, what he announced in the breakroom. Phipps replied

ted that unions were never discussed at those meetings and that Phipps
himself did not tell him about the January 28 organizing meeting (Tr.
973). Third, Lerma, who was on the organizing committee and also
attended the January 28 meeting, credibly testified that he likewise did
not invite Manning (Tr. 834). Fourth, there is no evidence that Man-
ning had ever expressed support for a union; indeed, the record indi-
cates he was strongly opposed to a union. See Manning’s testimony,
Tr. 969 (“[the employee I spoke to outside Denny’s] asked me, ‘Are
you in the union or out?” And I said, ‘Hell, no.’”). Finally, as indicat-
ed above, word of the organizing campaign was spreading “like wild-
fire” at that time. And Manning admitted that he himself had been
hearing “a lot of talk on the docks about meetings and this and that”
(Tr. 972). In sum, based on the record as a whole, I find that it is more
likely that Manning overheard discussion on the docks that there would
be a union organizing meeting at Denny’s that evening, and that, in
light of the Company’s antiunion town hall meeting that morning, he
went to Denny’s to see what he could see.
38 Music Express East, Inc., 340 NLRB 1063, 1076 (2003), cited by
the Company, is therefore plainly distinguishable on its facts.
39 The complaint alleges that Manning’s statements violated Section
8(a)(1) of the Act because the first statement constituted surveillance
and the second statement constituted a threat of unspecified reprisal
(GC Exh. 1(g), par. 5(s)). However, at the end of the hearing, the Gen-
eral Counsel clarified that Manning’s first statement to Phipps was
being alleged as unlawful on the theory that it created the impression of
surveillance (Tr. 971). And the General Counsel’s posthearing brief
argues that both statements were unlawful on this theory, apparently
abandoning the theory that the second statement was a threat of repris-
al. While such shifting theories are certainly not to be encouraged,
given that the complaint allegation here involves a single, short conver-
sation, which was fully litigated and would likely have been litigated
just the same regardless of the theory, I find that the Company has not
been deprived of due process. See Space Needle, LLC, 362 NLRB No.
11, slip op. at 4 (2015) (finding that supervisor’s statements to an em-
ployee violated Section 8(a)(1) on the ground that they were coercive,
regardless of whether they constituted an unlawful interrogation as al-
leged in the complaint).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
that he could not talk about it during work. Manning said, “just
watch yourself, because they [are] watching both of us, so
watch your back.” Manning then turned around and left.40
As indicated by the Company, Manning’s initial query re-
flecting awareness of Phipps’ announcement could not by itself
reasonably create an impression of surveillance given that
Phipps made the announcement openly in the company break-
room, managers were present at the time, and there is no con-
tention that they should not have been. See Sunshine Piping,
Inc., 350 NLRB 1186 (2007), and cases cited there. However,
as indicated by the General Counsel, Manning’s follow-up
statement warning Phipps to “watch yourself” and “watch your
back” because the Company was watching, clearly did create
the impression of surveillance. Accordingly, it was coercive
and unlawful. See Woodcrest Health Care Center, 360 NLRB
No. 58, slip op. at 1–2 (2014), enfd. in relevant part 784 F.3d
902, 917–918 (3d Cir. 2015).
5. April 29 incident (Remblance)
The General Counsel also alleges that, on April 29, a few
days after Phipps announced the union campaign in the break-
room, Safety Manager Remblance unlawfully surveilled and
interrogated Phipps and another employee while they were on
break (GC Exh. 1(g), par. 5(u)).
The incident occurred at about 1 p.m., a normal breaktime
for Phipps and other employees. Phipps and another senior
employee on the first shift were talking in one of the aisles,
which was not unusual as employees could take a break wher-
ever they wanted. Remblance, who was about 60–70 yards
away walking towards his office, noticed them and came
over.41 He asked each of them if they were on break. They
both said yes. Remblance asked what they were talking about.
Although they had been talking about Phipps’ involvement in
the union campaign, they just told Remblance they were talking
about work. Remblance then tried to make small talk, but they
made it clear they were not interested. So Remblance started to
walk away. However, before he left, he turned and asked
Phipps how much time he had left on his break. Phipps looked
at his phone and said a couple more minutes. Remblance told
him to be sure to get back to work when his break was over. 42

40 I credit Phipps’ testimony about the conversation (Tr. 545–546,
555, 619). Manning testified that he could not remember whether he
had such a conversation with Phipps, but denied that he ever told
Phipps to watch his back (Tr. 970). The Company argues that this
testimony reflects well on Manning’s credibility; specifically, that
Manning’s “acknowledge[ment]” that he could not remember the con-
versation shows that he was a “credible and forthright witness” (Br.
28). However, the Company offers no plausible explanation for Man-
ning’s failure to remember whether he had a conversation with Phipps
about his union campaign announcement less than 5 months earlier, and
no such explanation is readily apparent. Further, as noted above, Man-
ning’s testimony on other matters was inconsistent and clearly contrary
to the record as a whole.
41 Like several of the other named managers, the Company denied in
its answer that Remblance was a statutory supervisor, but stipulated to
his supervisory status at the hearing.
42 I credit Phipps’ testimony about the incident (Tr. 551–553, 620).
Although his testimony is not corroborated (the other employee did not
testify), it is also not controverted (Remblance, who no longer works
Phipps acknowledged in his pretrial affidavit (R. Exh. 1, p.
42–43), that Remblance had come up and joined conversations
between him and other employees in the past. However, the
circumstances indicate that that was not Remblance sole or
primary reason for coming over; rather, he came over to find
out if they were on break and what they were talking about.
Further, it is undisputed that, as safety manager, Remblance
was not in Phipps’ direct supervisory chain and had never mon-
itored his break time in the past. And there is no apparent rea-
son in the record why Remblance would have done so in this
instance other than Phipps’ recent announcement about the
union campaign in the breakroom. Indeed, as discussed below,
the evidence indicates that other company managers and super-
visors likewise took a number of other, unlawful actions to
monitor and interfere with the union campaign. Accordingly, a
preponderance of the evidence supports the allegation that
Remblance’s conduct constituted unlawful surveillance. Cf.
Hawthorn Co., 166 NLRB 251 (1967), enfd. in relevant part
404 F.2d 1205 (8th Cir. 1969) (foreman engaged in unlawful
surveillance by adopting a practice during the union campaign
of sitting at employee tables in the cafeteria instead of the
foremen’s table during coffee breaks, assertedly to ensure they
did not go over their break time).43
The related interrogation allegation presents a somewhat
closer question. Although Remblance asked what they were
talking about, he did not specifically refer to the union cam-
paign. Further, Phipps was an open union supporter at that
point. However, considering the timing—just 2 days after
Phipps’ announcement, and a few hours after the antiunion
communication meeting where Operations VP Engdahl made
several unlawful statements to Phipps and other first-shift sen-
ior employees—and the unlawful context discussed above, it is
likely that Remblance’s question would have reasonably tended
to chill employees in the exercise of their union activity. Ac-
cordingly, a preponderance of the evidence supports this allega-
tion as well. Cf. Classic Sofa, Inc., 346 NLRB 219, 235
(2006) (given the employer’s various antiunion statements, the
company president unlawfully created an impression of surveil-
lance and interrogated an employee a week before the union
election by noting that two other employees had been talking a
lot and asking if she knew what they were talking about).
6. May 1 incident (Garcia)
The General Counsel also alleges that a few days later, on
May 1, Inbound/Receiving Supervisor Garcia unlawfully en-
gaged in surveillance and created the impression of surveillance
by searching Lerma’s forklift for union authorization cards and
subsequently telling Lerma that he knew that Lerma had passed
out a card in the breakroom and that he had searched Lerma’s
forklift to find union cards (GC Exh. 1(g), par. 5(v)(1), (2)).44

for the Company, likewise did not testify). Further, it is consistent with
his pretrial affidavit (R. Exh. 1, p. 42–43), and the Company does not
cite any reason why it should not be credited.
43 Airport 2000 Concessions, LLC, 346 NLRB 958 (2006), cited by
the Company, is distinguishable as the Board found that the supervisor
there did not engage in any “out-of-the- ordinary” type of conduct.
44 The complaint (par. 5(v)(3)) additionally alleges that Garcia un-
lawfully solicited employee complaints and promised employees in-
SHAMROCK FOODS CO. 19
Lerma is a second-shift forklift operator and member of the
union organizing committee. He signed a union card on Janu-
ary 2, and began gathering signatures from other employees in
February. Garcia is currently his direct supervisor. Garcia has
worked at the warehouse for 27 years, and has known Lerma
for about 6 years. He became the outbound supervisor around
mid-2013 and the second-shift inbound supervisor in February
2015, and has seen Lerma basically every day he worked
since.45
The May 1 incident occurred during a lunch break while
Lerma was in the receiving office. He had parked his forklift
just outside the breakroom, and could see it through the large
office window. The forklift had an ID number on it (C18) and
was typically assigned to him every day. He had also left his
clipboard on top of the forklift, which he had purchased himself
and had various documents clipped to it, including his pay
sheets, drop notes, and work-hour calculations for the week. A
copy of the day’s schedule, which was prepared by the first-
shift inbound supervisor and showed where all the employees
were assigned, was also in a cubbyhole on the forklift.
At some point, Lerma glanced out the window and noticed
that Garcia was leaning over the forklift with Lerma’s clipboard
in his hands and was leafing through the documents. Lerma
immediately went out and confronted Garcia, asking him what
he was looking for. Garcia said he was looking for the sched-
ule and walked away. However, Lerma did not believe him
because the schedule was in plain view sticking out of the cub-
byhole and was not on the clipboard. Further, while Garcia had
authority to adjust the schedule and move employees around,
he could access the schedule on his office computer and had
never asked to see Lerma’s copy of the schedule before. Ac-
cordingly, when Lerma later saw Garcia again in the deli aisle,
he asked Garcia “to be straight” with him and tell him the real
reason he was going through his “stuff.” Garcia admitted at that
point that he was looking for union cards. He said he had got-
ten a call from transportation that Lerma was putting up flyers
and had handed a union card to the transportation clerk in the
breakroom.46

creased benefits on May 1. However, the General Counsel’s posthear-
ing brief does not address this allegation, and it appears to have been
abandoned. In any event, the General Counsel has failed to carry the
burden of proof and persuasion.
45 Tr. 763, 784, 956–958. The Company stipulated at the hearing
that Garcia is a statutory supervisor.
46 I credit Lerma’s testimony about the incident (Tr. 807–814, 836–
838, 851–856). See also GC Exh. 28(a), (b) (pictures of where his
forklift was parked). Although Garcia testified to the contrary in virtu-
ally every detail, he was not a credible witness. For example, notwith-
standing that the forklift drivers are usually assigned the same forklift
every day and that he had directly supervised Lerma on the warehouse
floor for the previous 3 months, he denied that he had any idea it was
Lerma’s forklift and clipboard he was looking through (Tr. 947). He
also denied that he carries his own copy of the schedule, notwithstand-
ing that he distributes the schedule to the employees, regularly
“tweaks” it by shuffling employees around two to three times every
shift,
and his office computer is far away on the opposite side of the ware-
house (Tr. 947–949). Indeed, during cross-examination on another
point, Garcia let slip that he had “just distributed the schedule” prior to
There is no contention or evidence that Lerma had violated a
lawful company rule or policy by distributing a union card in
the breakroom. Nor is there any contention or evidence that
the Company had a non-discriminatory policy and practice of
searching forklifts or clipboards for nonwork related items.
Accordingly, Garcia’s foregoing conduct was clearly coercive
and violated the Act as alleged. See, e.g., Intermedics, Inc.,
262 NLRB 1407, 1415 (1982), enfd. 715 F.2d 1022 (5th Cir.
1983); and Clark Equipment, 278 NLRB 498, 503–504 (1986).
Compare Bellagio, LLC, 362 NLRB No. 175 (2015) (no viola-
tion found where the employer had legitimate cause, based on
the employee’s violation of company policy regarding protec-
tion of client credit card data, to review her work email account
to determine whether she also had committed other similar
violations); and Stanley M. Feil, Inc., 250 NLRB 1154 (1980)
(no violation found where the employer had a pre-existing le-
gitimate rule and practice of searching purses and bags when
employees exited the facility during lunch break).
7. May 5 meeting with Lerma (Engdahl and Vaivao)
The General Counsel also alleges that, several days later, on
May 5, Operations VP Engdahl and Warehouse Manager
Vaivao called Lerma up to the office and made various state-
ments to him that unlawfully created the impression of surveil-
lance of his union activities, promulgated an overbroad and
discriminatory rule prohibiting him and other union supporters
from heckling or insulting employees, and threatened him with
unspecified reprisals for doing so (GC Exh. 1(g), par. 5(w)).47
The subject meeting, which Lerma secretly recorded, oc-
curred at the beginning of his shift. Upon arriving at the ware-
house, a supervisor informed Lerma that Vaivao wanted to see
him upstairs in his office. When Lerma got there, Vaivao told
him that Engdahl wanted to talk to him, and walked him across
the hall to Engdahl’s office.48 After completing a phone call,
Engdahl introduced himself to Lerma and explained why he
had been called up. He said,
I wanted to talk to you today because there’s been let’s
just say some rumblings coming off the floor. Okay. And
I’m doing this more as a heads-up to you, okay, as wanting
you to kind of take note and stay out of trouble. Okay.
The words that have come off the floor are that there’s
some hecklings going on, some insulting going on, and
some potential slowdown on certain folks who are not

looking through Lerma’s clipboard (Tr. 963). Moreover, given the
Company’s hostility to the union campaign, other unlawful conduct
discussed herein, and subsequent actions against Lerma (see the next
section below), it is not difficult to believe that Garcia would have been
looking for union cards on Lerma’s forklift or clipboard. Nor is it too
difficult to believe, given that Garcia had known Lerma for so many
years and had apparently not been a supervisor for the vast majority of
his 27-year career, that he would have admitted privately to Lerma that
that was the real reason he was looking through Lerma’s clipboard
when Lerma continued to question him about it.
47 The complaint also separately alleges (par. 6) that the Company
unlawfully disciplined Lerma at the May 5 meeting. This allegation is
addressed in section C.2 below.
48 See Tr. 742 (Engdahl’s warehouse office is located directly across
from Vaivao’s office).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
sharing a similar point of view. Okay. So I . . . want you
to be aware of that. It has come to our attention, okay.
And I want you to understand our position would be that
that won’t be tolerated. Okay. And you could get in some
serious trouble for that. We want to try to avoid that.
Okay.
So I’m . . .speaking as generically as I can, but I’m
sure you understand what I’m trying to say and . . . you
know, we . . .want to avoid problems that we don’t need to
have. That’s all I’m saying. Okay. And I’m trying to
speak as nicely as I can and, you know, at least get the
message across, right.
Lerma replied that he was just doing his own research like
Engdahl had told him to do in the town hall meeting, because
what the Company was saying and what other guys were saying
about unions conflicted, and a lot of people asked his opinion.
Lerma complained that he felt like he was being pulled aside by
management and “put in hot water” for “spreading rumors”
whenever he tried to express his opinion, even if it was on
break or outside the Company.
Engdahl said Lerma was entitled to express his opinion, and
hoped he did not “scare the shit out” out of Lerma by “bringing
him up” to his office. He then offered to “help clarify,” saying,
It’s okay to express your opinion, okay, but the part that
wouldn’t be okay is if it was done in such a way where some-
body could perceive it as intimidation, or something like that,
right? It’s kind of how you do it, if that makes sense, right?
Maybe—just think about that when you are expressing your
opinion as to how you’re doing it and what not, because may-
be—you know, I’m not saying this is the case, but maybe if
that feedback is coming around somehow they are being—
you know, . . . feel threatened or intimidated. That’s all I’m
saying. I don’t know.
Vaivao then spoke, explaining why he had previously “fol-
lowed up” and “talked” with Lerma about expressing his opin-
ions. He said he had done so because employees had told him
that Lerma was the one who told them things about the Compa-
ny’s new pay plan, and the employees were concerned about it
and brought it up to him. And employees were now telling the
Company again that Lerma was “the local voice out there . . .
telling [his] opinion in front . . . of the guys.” Vaivao said,
So that’s what we’re hearing . . . all right. We’re hearing that,
hey, Lerma was doing this. All right. . . . Like Mark [Eng-
dahl] said, we just got to make sure that we’re not doing those
type of things up there. We’re not . . . heckling guys out
there. We’re not slowly . . . not bringing fork[lifts] down for
guys, for certain individuals. All right. . . . If that’s the situa-
tion, like Mark said, you would be—you would find yourself
in some deeper trouble.
Lerma asked Vaivao who his sources were. However,
Vaivao declined to say. Engdahl assured Lerma that he was
“not getting in trouble right now”; that they were “just talking”
to him. Lerma replied that, nevertheless, to “protect himself,”
in the future he would just do his work, “stay quiet, don’t say
shit,” and go home. Engdahl said “okay” and reiterated that
Lerma was not “getting in trouble.” Engdahl said that he was
“trying to avoid anybody getting in trouble”; that he “could not
afford to lose anybody” and did not “want to have to bring in
new people”; that Lerma did a good job and the Company had
“a ton of investment” in him by training him over the years;
and that the Company would have been “doing [Lerma] a dis-
service not to at least tell [him] what [they] were hearing so that
[he was] aware of it.” Lerma said “okay, that works,” and the
meeting ended. (GC Exh. 13(a), (b); Tr. 320–323, 820.)49
The General Counsel contends that Engdahl’s foregoing
statements created the impression of surveillance because he
failed to disclose how he acquired information about Lerma’s
union activities (GC Br. 40). However, both Engdahl and
Vaivao indicated that the Company learned about his activities
from other employees who had complained about them. Alt-
hough they did not identify the employees by name, Board
precedent did not require them to do so. See the discussion
and cases cited in section A.5 above regarding the February 24
union education meeting. Accordingly, this allegation is dis-
missed.
As indicated above, the General Counsel also contends that
Engdahl’s statements effectively promulgated a rule prohibit-
ing Lerma and other union supporters from heckling or insult-
ing other employees. The General Counsel asserts that this rule
was unlawful under Lutheran Heritage Village-Livonia, 343
NLRB 646 (2004). In that case, the Board held that a work rule
is unlawful, even if it does not expressly restrict union activity,
if (1) employees would reasonably construe it to prohibit union
activity, (2) the rule was promulgated in response to union ac-
tivity, or (3) it has been applied to restrict union activity. The
General Counsel argues that the no-heckling or insulting rule
was unlawful under the first and second prongs of this test, i.e.
because it was promulgated in response to union activity,
and/or because such terms as “heckling” and “insulting” are
ambiguous and employees would reasonably interpret them to
encompass protected union activities. (GC Br. 62 fn. 43).
The General Counsel’s arguments are well supported. There
is no real dispute that Engdahl adopted or announced a rule
prohibiting “heckling” or “insulting” coworkers at the May 5
meeting. As indicated above, Engdahl clearly stated that such
conduct “won’t be tolerated.” Further, he did not cite or refer
Lerma to any existing rule prohibiting such conduct, and the
Company does not contend that there was any such rule.50

49 I discredit the testimony of Engdahl (Tr. 742–749) and Vaivao
(Tr. 237–249) to the extent it conflicts with the recording and transcript
of the meeting. For example, I discredit Vaivao’s testimony that Eng-
dahl specifically told Lerma that employees had complained that he had
thrown pens at them when they declined to sign a union card.
50 As discussed in section D.11 below, the Company maintains a rule
against “harassment.” However, Engdahl did not mention this no-
harassment rule at the May 5 meeting, the reported complaints about
union supporters were not treated as harassment complaints under that
rule (Tr. 144–145, 749, 929–930), and the Company’s posthearing brief
does not contend it was identical to or fully consistent with Engdahl’s
rule.
SHAMROCK FOODS CO. 21
There is also no real dispute that Engdahl promulgated the
rule in response to union activity. Although Engdahl and
Vaivao scrupulously avoided specifically mentioning the union
campaign during the meeting, there is no dispute that they were
referring to Lerma’s prounion opinions and activities, and that
everyone in the room understood this.
In these circumstances, the burden was on the Company to
demonstrate that the new rule was actually motivated by legiti-
mate workplace concerns apart from the union campaign. Care
One at Madison Avenue, 361 NLRB No. 159, slip op. at 3
(2014). The Company failed to do so. Although Engdahl and
Vaivao offered hearsay testimony that employees complained
to them about Lerma and other union supporters throwing pens
at them after they declined to sign a card, their testimony was
never corroborated.51 Lerma credibly testified that he did not
engage in such conduct (Tr. 815–816, 847), and none of the
complaining employees were called to contradict him. Nor was
any documentation of the complaints presented. Indeed, Eng-
dahl and Vaivao admitted that none of the complaints were ever
investigated or documented (Tr. 749, 929–930). Accordingly,
the rule was clearly unlawful under the second prong of the
Lutheran Heritage test. See Care One, above, at n. 6, and cases
cited there.
As for the first prong of the Lutheran Heritage test, like em-
ployer statements generally, both the content and the context of
the rule must be considered. Here, as indicated above, the rule
prohibited “heckling” and “insulting” coworkers. On its face,
such language is at least arguably lawful, i.e. it is not so “im-
precise that it could encompass any disagreement or conflict
among employees, including those related to discussions or
interactions protected by Section 7 [of the Act]” (2 Sisters Food
Group, Inc., 357 NLRB 1816 (2011)). See First Transit, Inc.,
360 NLRB No. 72, slip op. at 3 n. 10 (2014) (finding lawful an
employer rule that prohibited “abusive language where the
language used is uncivil, insulting, contemptuous, vicious, or
malicious”).
However, Engdahl went further by “clarify[ing]” that such
conduct included expressing an opinion in such a way “where
somebody could perceive it as intimidation” or “feel threatened
or intimidated.” It is well established that rules restricting
union or other protected activity based on the subjective reac-
tions of others are unlawful. See Consolidated Diesel Co., 332
NLRB 1019, 1020 (2000), and cases cited there. As the court
stated in enforcing the Board’s decision in that case, “There
would be nothing left of Section 7 rights if every time employ-
ees exercised them in a way that was somehow offensive to
someone, they were subject to coercive proceedings with the
potential for expulsion.” 263 F.3d 345, 354 (4th Cir. 2001).52
Further, Engdahl announced the rule at a time when employ-

51 As noted above, neither Engdahl nor Vaivao specifically men-
tioned any pen throwing to Lerma at the meeting. Thus, I reject the
Company’s argument (Br. 18) that Lerma’s failure to specifically deny
such conduct at the May 5 meeting itself supports Engdahl’s hearsay
testimony about the complaints.
52 Although I would reach the same conclusion regardless, Lerma’s
response to Engdahl (that, to “protect himself,” in the future he would
just do his work, “stay quiet, don’t say shit,” and go home) certainly
appears to confirm this reasoning.
ees were, in fact, reportedly complaining about being ap-
proached by union supporters. As discussed above, Vaivao had
reported this to Lerma and other employees at the March 26
union prevention meeting. See sec. II.A.6, above. Moreover,
just days before the May 5 meeting, Lerma’s immediate super-
visor, Garcia, unlawfully searched his forklift for union cards
simply because he had been seen handing a card to an employ-
ee in the breakroom. In these circumstances, employees would
reasonably conclude that the rule was intended to restrict such
protected activities. See Care One, above, slip op. at 4; and
Boulder City Hospital, Inc., 355 NLRB 1247 (2010). See also
Auto Workers v. NLRB, 520 F.3d 192, 197 (2d Cir. 2008).
Finally, as indicated above, Engdahl warned Lerma that he
“could get in some serious trouble” if he violated the rule.
Vaivao similarly told Lerma that he “would find [him]self in
deeper trouble” if he violated the rule. And, in his subsequent
concluding remarks, Engdahl made clear that, by “trouble,”
they meant Lerma could be terminated. Thus, the evidence
likewise supports the allegation that Engdahl and Vaivao un-
lawfully threatened Lerma with reprisals if he violated the rule.
See generally Waste Management of Palm Beach, 329 NLRB
198, 200 (1999); and Lancaster Fairfield Community Hospital,
311 NLRB 401, 403 (1993).
8. May 8 letter to employees (McClelland)
The General Counsel alleges that a few days later, on May 8,
Company President/CEO McClelland committed similar viola-
tions in a letter to all warehouse employees. The General
Counsel alleges that the letter unlawfully promulgated an over-
broad and discriminatory rule that requested employees to re-
port, and threatened to legally prosecute, anyone who violated
it (GC Exh. 1(g), par. 5(x)).
The letter stated in relevant part as follows:
To All Associates:
It has come to my attention that some associates have recently
been subjected to threatening, violent, or unlawfully coercive
behavior by other associates. This is a very serious matter and
one that I take personally.
Let me be clear: such behavior is not consistent with the
Shamrock Foods Company culture and values that are central
to us. Shamrock has been in business since 1922, and has
never tolerated associates behaving towards each other in a
manner which is violent, threatening, or unlawfully coercive.
Shamrock Foods Company has always celebrated and en-
couraged the diversity of its associates and will continue to do
so. Associates should not be physically afraid of coming to
work. We will not allow associates to behave in a manner
which violates the law through threats of violence, or unlaw-
ful bullying. Simply put, this type of behavior is unacceptable
and I will make every effort to stop it at our workplace.
To that end, if you have been the victim of such behavior, in
any way, shape, or form, however minor, please promptly re-
port it. Shamrock will fairly and thoroughly investigate all al-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
legations. If the complaint has merit, Shamrock will take ap-
propriate action against anyone threatening associates and re-
fer the matter to law enforcement for prosecution to the fullest
extent of the law if that is the right course of action. Each as-
sociate is expected to perform their work in a cooperative
manner with management/supervision, fellow associates, cus-
tomers, and vendors. [GC Exh. 14.]
The General Counsel contends that McClelland’s foregoing
letter promulgated a new rule prohibiting unlawful coercive
behavior or bullying. The General Counsel argues that, like
Engdahl’s rule, this new rule was unlawful under both the first
and second prongs of the Lutheran Heritage test because it was
promulgated in response to union activity and because employ-
ees would reasonably construe it to apply to protected union
activity.
Again, the General Counsel’s arguments are well supported.
The letter clearly stated that unlawful coercive behavior and
bullying “was “unacceptable” and would not be tolerated or
allowed. Further, like Engdahl, McClelland did not cite or refer
employees to any existing rule prohibiting such conduct, and
the Company does not contend that there was any such rule.53
It is likewise clear that the letter was sent in response to un-
ion activity. Although McClelland did not specifically mention
the union campaign, as discussed above neither did Engdahl
and Vaivao, yet there is no dispute that they were referring to
union activity at their May 5 meeting with Lerma. Further,
McClelland sent the letter to all the warehouse employees just 3
days later after that meeting. And there is no record evidence
of any conduct other than the prounion activity Engdahl and
Vaivo discussed with Lerma and other employees at that and
other meetings that might have prompted the letter.
Moreover, McClelland’s testimony regarding how he came
to send the letter is entirely unbelievable. McClelland testified
that he had no idea what the reported coercive behavior or bul-
lying was related to. He testified that HR told him that em-
ployees had complained of feeling threatened, but he did not
recall who in HR told him, did not know any details about what
happened, did not know why they felt threatened, and did not
think it mattered why they felt threatened. However, he
acknowledged that he does not regularly send such letters to
employees, and in fact could not specifically recall the last time
he had done so. He also admitted that he “chose” to send this
one because he felt that it was “imperative” to do so. (Tr. 353–
356.) It is inherently unlikely in these circumstances that he
would not have asked or been told, at least in general terms,
what the alleged threatening behavior was about, before send-
ing the letter.54

53 Again, the Company does not contend that McClelland’s rule pro-
hibiting unlawful coercion or bullying was identical or consistent with
the Company’s existing no-harassment rule.
54 Thus, I find that, in truth, McClelland did ask and/or was told.
See NLRB v. Howell Chevrolet Co., 204 F.2d 79, 86–87 (9th Cir.
1953), affd. 346 U.S. 482 (1953) (where a tribunal discredits a witness,
it may find, “not only that the witness’ testimony is not true, but that
the truth is the opposite of his story”); and O’Reilly Auto Parts v.
NLRB, 779 F.3d 576, 585 (D.C. Cir. 2015) (where a witness’ testimony
is discredited, the “next logical step” is to find that “the truth was the
As discussed above, therefore, it was incumbent on the
Company to show that McClelland’s new rule was actually
motivated by legitimate workplace concerns apart from the
union campaign. As with Engdahl’s rule, the Company failed
to do so. Accordingly, the rule was clearly unlawful under the
second prong of the Lutheran Heritage test.
Regarding the first prong of the test, no case has been cited
or found since Lutheran Heritage involving a rule that prohibit-
ed “unlawful bullying.” Like “heckling” and “insulting,” this
language is at least arguably lawful on its face, particularly
where, as here, it is used in the context of discussing “threaten-
ing, violent, or unlawfully coercive behavior.” See generally
First Transit, above. However, the circumstances surrounding
issuance of the rule must also be considered. And, as discussed
above, McClelland announced the rule just days after three of
his supervisors or managers had unlawfully discouraged a pri-
mary union supporter from continuing to engage in lawful un-
ion solicitation by searching his equipment for union cards and
warning him that the way he expressed his prounion opinions
would be scrutinized under a subjective standard. In these cir-
cumstances, an employee would reasonably conclude that, like
Engdahl’s rule, McClelland’s no-unlawful bullying rule would
be applied to restrict protected activities. See Care One, and
Boulder City, above.
Finally, given the foregoing, McClelland’s letter also violat-
ed the Act as alleged by requesting employees to “promptly
report” to the Company if they were “the victim of such behav-
ior, in any way, shape, or form, however minor,” and by threat-
ening to “refer the matter to law enforcement for prosecution to
the fullest extent of the law” if the Company decided the com-
plaint had merit. See Winkle Bus Co., 347 NLRB 1203, 1204
(2006); Ryder Truck Rental, 341 NLRB 761 (2004), enfd. 401
F.3d 815 (7th Cir. 2005); and Tawas Industries, 336 NLRB
318, 322 (2001).
9. May and June breakroom incidents (Garzon)
The General Counsel also alleges that Sanitation Supervisor
Garzon committed a number of unfair labor practices in May
and June. Garzon had been the sanitation supervisor at the
warehouse for about 2 years, and supervised around 20 em-
ployees.55 The General Counsel alleges that she unlawfully
took union flyers away from and interrogated two of those em-
ployees in the breakroom, and also unlawfully removed union
literature from the breakroom information counter (GC Exh.
1(g), pars. (y), (aa)).56

opposite of what he recounted under oath”). The General Counsel also
cites the Company’s June 8, 2015 position statement (GC Exh. 29, p.
15), which it submitted during the Region’s investigation of the allega-
tions, as support for finding that the letter was sent in response to union
activity. However, the General Counsel offered the Company’s posi-
tion statement into evidence solely in support of the allegations involv-
ing Wallace, and it was therefore received solely for that purpose (Tr.
857). Accordingly, I have not relied on it here.
55 As with all of the other managers and supervisors identified in the
original complaint, the Company denied in its answer that Garzon was
a supervisor, but stipulated to her supervisory status at the hearing.
56 The complaint alleges that Garzon also unlawfully removed union
flyers from the breakroom on July 8. However, there is no specific
record evidence of this and the General Counsel’s posthearing brief
SHAMROCK FOODS CO. 23
Phipps began handing out union flyers at the warehouse near
the end of May. On May 25, he was in the upstairs breakroom
doing so when he noticed that Garzon was standing at a table
where he had placed flyers in front of two of the sanitation
employees. As he watched, Garzon reached down and took
both of the flyers off the table. Phipps immediately walked
over and confronted her, saying she could not do that; it was a
violation of their rights unless they gave her permission to take
the flyers. Garzon did not respond, but looked at the employees
and said, “Well, you guys don’t want these, do you?” Both of
the employees shook their heads no, and she walked off with
them.57
Phipps also left union flyers on an “information counter” that
the Company maintains in the breakroom. The counter is used
by the Company for displaying or distributing health and
fitness information. Employees also occasionally place
business cards and notices advertising items for sale on the
counter, but Garzon immediately removes them.58 On at least
three occasions, Garzon likewise removed the union flyers that
Phipps had placed on the counter (Tr. 878). On one of those
occasions in June, Phipps actually videotaped her doing so with
his cell phone camera. The video shows Garzon entering the
breakroom, walking directly to the counter, picking up the un-
ion flyers, and immediately walking out with them (GC Exh.
24).
It is well established that an employer may not prohibit dis-
tribution of union literature by employees during nonwork time

appears to have abandoned the allegation. The complaint additionally
alleges that the Company maintains an overbroad no-
solicitation/distribution rule generally. This allegation is addressed in
section D.12 below.
57 I credit Phipps’ testimony about this incident (Tr. 554–558, 625–
626, 630). It was corroborated in substantial part by Garzon herself,
who admitted that she picked up both of the flyers; that Phipps ap-
proached and said she was not supposed to do that; that she asked the
employees if they wanted them back and they said no; and that she then
walked off and threw the flyers away (Tr. 872–877, 883–884). Alt-
hough Garzon testified that she initially took one of the flyers only
because it was in English and the employee asked her to translate it in
Spanish for her, I discredit that testimony. According to Garzon, she
already had her own copy of the flyer (Tr. 873). Thus, there was no
need to take the employee’s copy to translate it. Further, as indicated
above, Garzon also took the other employee’s flyer. Finally, Garzon
admitted that she refused to translate the flyer for the employee because
it was a union flyer (Tr. 874).
58 Tr. 558, 634–636, 881–883. Phipps testified that other “things”
are also frequently put on the counter, such as drinks, chips, water
bottles, milk crates, and even hula hoops (Tr. 634–635). However, he
did not say who put them there or why. Further, although he said he
had a picture of the counter with one or more of these items on it, no
such picture was offered into evidence. Nor did any other witness
corroborate his testimony. Accordingly, I find that the General Counsel
failed to establish that employees regularly placed items on the counter
that were not immediately removed by Garzon or the sanitation em-
ployees.
Phipps also testified that he had never noticed Garzon pick things up
in the breakroom before (Tr. 636). However, it seems unlikely that
Garzon, who had also been a cleaner for 10 years before she became
the sanitation supervisor, would not have done so. In any event, the
General Counsel’s posthearing brief does not cite or rely on Phipps’
testimony in this respect as support for the allegations.
in nonwork areas absent a showing of special circumstances
that make prohibiting the distribution of literature necessary to
maintain production or discipline. See Our Way, Inc., 268
NLRB 394 (1983); and Stoddard-Quirk Mfg., 138 NLRB 615
(1962). The Company made no such showing here; indeed, it
does not even contend that there are any special circumstances
justifying a rule against distributing union flyers to employees
in the breakroom. Moreover, as indicated by the General
Counsel, it is unlawful under extant law for an employer to
confiscate union literature even if it could lawfully prohibit
distribution of it. See Manorcare Health Services-Easton, 356
NLRB at 206; and Hanson Aggregates Central, Inc., 337
NLRB 870, 875–876 (2002). Thus, for either or both of these
reasons, Garzon clearly violated the Act by taking the flyers
from the two employees in the breakroom.
Considering all the circumstances, particularly the fact that
she was their direct supervisor, Garzon also clearly violated the
Act as alleged by asking the two employees if they wanted the
union flyers back. See GC Murphy Co., 213 NLRB 175, 176–
177 (1974) (store managers unlawfully interrogated employees
by asking what they planned to do with the literature a union
agent had given them and to turn it over to the company); and
St. Francis Medical Center, 340 NLRB 1370, 1382 (2003)
(hospital security guard unlawfully interrogated employees by
asking them if they were going to read the union flyer they had
received or going to keep it, and to give it to him).
However, the evidence fails to establish that Garzon likewise
violated the Act by removing the flyers from the company in-
formation counter. It is well established that an employer may
lawfully reserve breakroom bulletin boards for company infor-
mation only (Walmart Stores, Inc., 340 NLRB 703, 709–710
(2003)), and no case has been cited or found indicating that an
employer may not likewise reserve a breakroom counter. Alt-
hough an employer may not disparately enforce such a policy
by permitting employees to display some information but not
union information (ibid.), contrary to the General Counsel’s
contention, there is no direct or substantial evidence that the
Company did so.59 As indicated above, the counter was main-

59 In arguing to the contrary, the General Counsel’s posthearing brief
cites: (1) Phipps’ videotape of Garzon removing the union flyers; and
(2) Lerma’s testimony that the employees sell Girl Scout cookies and
fundraise for their children’s sports teams on the work floor (Tr. 780).
I agree that Phipps’ videotape is strong evidence that Garzon went into
the breakroom solely to remove the union flyers. Based on the vide-
otape and the record as a whole, I therefore discredit Garzon’s testimo-
ny (Tr. 884–888) that she did not go there on that occasion to look for
or remove the flyers, and that she was just checking the entire break-
room as usual to make sure it was clean. I also agree that Lerma’s
testimony indicates that the Company might not have strictly enforced
its no-solicitation/distribution rule in certain respects on the work floor
(Lerma did not say whether any managers or supervisors were present
or aware of the employee solicitation on the work floor). However,
neither is sufficient to satisfy the General Counsel’s burden to establish
that removing the union flyers from the company information counter
was contrary to past practice or otherwise discriminatory. See Wal-
Mart Stores, above. Compare Intertape Polymer Corp., 360 NLRB No.
114 (2014) (finding violation where evidence established that literature,
such as newspapers, magazines, etc., had previously remained un-
touched in the breakroom until at least the end of the workday, but
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
tained by the Company solely to display information on health
and fitness, and other information placed there by employees
was routinely removed.60 Accordingly, this allegation is dis-
missed.
10. May 29 wage increase
The General Counsel also alleges that, about May 29, the
Company unlawfully gave a wage increase to some of the
warehouse employees to dissuade them from supporting or
voting for the Union (GC Exh. 1(g), par. 5(z)).
The Company granted or announced wage increases for four
groups or classifications of warehouse workers in May: will
call ($2/hour, retroactive to beginning of pay period), returns
($2/hour), sanitation ($1/hour), and throwers ($1/hour, likewise
retroactive). Such wage increases for warehouse employees
were rare; increases normally ranged between 3–5 percent.
And the Company had never granted a retroactive wage in-
crease in the previous 20 years.61
As previously discussed in section A.7 above, an employer
violates Section 8(a)(1) of the Act by promising or granting a
benefit during a union campaign in order to dissuade its em-
ployees from supporting the union. The evidence strongly
supports an inference that this was the Company’s motive for
granting or announcing the May wage increases. As discussed
above, HR Director Wright and Warehouse Manager Vaivao
had unlawfully solicited employee complaints regarding their
wages at the roundtable and communication meetings on Janu-
ary 28 and February 5. Moreover, at the recent communication
meeting on April 29, Operations VP Engdahl had specifically
reminded employees, after making various unlawful promises

during the union campaign supervisors monitored the breakroom much
more closely and began removing all literature, including union litera-
ture, shortly after employees finished their breaks), enfd. on point 801
F.3d 224, 232–233 (4th Cir. 2015).
60 There is no reference to use of the breakroom counter in the com-
pany no-solicitation/ distribution rule, or any other documentary evi-
dence in the record of the Company’s restriction on its use. However,
it is not necessary that such a restriction be in writing. See Walmart
Stores, above. And the General Counsel’s posthearing brief does not
contend otherwise.
61 The foregoing findings are based on the credible and corroborative
testimony of Phipps (Tr. 559–561 and Lerma (Tr. 781, 843). Both are
in a different classification or position (forklift operator), and their
testimony about most or all of the wage increases was hearsay, based
only on what they had been told by the employees who received them.
Nevertheless, I have given this secondary evidence substantial weight
in light of the Company’s failure to make a good-faith effort to timely
comply with the General Counsel’s subpoena request for the relevant
payroll records (GC Exh. 2(e), attachment 1, par. 52). See fn. 29
above, and cases cited there. See also Tr. 911–927 (further discussing
the evidentiary sanctions with respect to the wage-increase allegation),
and Company counsel’s on-the-record statements, Tr. 94 [day 2] (“[A]
lot of these we could . . . probably just stipulate to . . . I don’t think
there’s a question that there was a pay raise granted on a particular
date”); Tr. 563–564 [day 5] (“without . . . having spoken to the client
yet, I believe the General Counsel is correct. . . . I don’t believe there is
a dispute over whether there was an increase”); Tr. 564–565 [day 5]
(“I’m not aware of the dispute on [the date of the increase] . . . and to
the best of my knowledge, I think those amounts are correct, but I
would have to double-check”); and Tr. 916 [day 7] (“there are docu-
ments that say . . . this is the wage increase and stuff”).
and threats, that it was “the company” that pays wages, “not the
union.” See sec. A.2, 3, and 7 above. Granting a substantial
number of the warehouse employees extraordinary and unprec-
edented retroactive wage increases just a few weeks later not
only proved, but emphasized the point. It also, of course, sug-
gested “a fist inside the velvet glove,” and thereby fit well with
the Company’s other unlawful antiunion conduct.62
Nevertheless, the Company argues that the allegation must
fail for two reasons. First, it argues that the wage increase can-
not be found unlawful because no election petition was pend-
ing, and the Company therefore had no knowledge at the time
which employees the Union had targeted in its organizing ef-
fort. The argument is without merit. See NLRB v. Curwood,
Inc., 397 F.3d 548, 553–557 (7th Cir. 2005) (affirming Board’s
finding that the employer’s pre-petition announcement of bene-
fits was unlawful where the employer was admittedly aware of
the union campaign at the time), and cases cited there.63 As in
Curwood, there is no dispute here that the Company knew
about the union organizing campaign among the warehouse
workers at the time it granted the wage increases. Nor is there
any evidence or contention that the Company had reason to
believe that the campaign excluded warehouse workers in the
will call, returns, sanitation, and thrower positions.
Second, the Company argues that no violation can be found
because the Union’s campaign was not active at the time that
the wage increases were granted. This argument is likewise
without merit. There is no evidence that the union campaign
was not still active during and after May 2015. On the contra-
ry, as discussed earlier, Phipps began openly distributing union
flyers at the warehouse at the end of May. And both he and
Lerma continued to do so in June. (Tr. 554, 565, 630, 787–788,
846.) Thus, there was no reasonable basis for the Company to
conclude that the union campaign was dormant at the time of
the wage increases. Cf. Sigo Corp., 146 NLRB 1484, 1486
(1964) (reaching contrary conclusion where the union had
withdrawn its petition without explanation and there was no
evidence of any organizational activity thereafter).
In arguing otherwise, the Company relies solely on a pretrial
affidavit that Phipps gave to the NLRB Regional Office on
May 21 during its investigation of the Union’s unfair labor
practice charges. The Company asserts that Phipps’ affidavit
admitted that the union campaign was essentially dormant at
that time. However, the affidavit contained no such admission.
Indeed, it stated that a union meeting had been held just 2 days

62 See NLRB v. Exchange Parts Co., 375 U.S. 405, 460 (1964) (“The
danger in well-timed increases in benefits is the suggestion of a fist
inside the velvet glove. Employees are not likely to miss the inference
that the source of benefits now conferred is also the source from which
future benefits must flow and which may dry up if it is not obliged.”).
The General Counsel’s posthearing brief does not request an adverse
inference of an unlawful motive based on the Company’s failure to
produce documents responsive to paragraphs 52–54 of the subpoena
duces tecum. In any event, given the substantial record evidence of the
Company’s unlawful motive discussed above, it is unnecessary to draw
or rely on such an adverse inference.
63 See also Hampton Inn, 348 NLRB at 17 (the rule regarding a
promise or grant of benefits during an organizing campaign applies
even if no representation petition has yet been filed).
SHAMROCK FOODS CO. 25
earlier, on May 19. Although the affidavit stated that fewer
employees attended the meeting, that only four additional cards
had been signed in the previous 30 days, and that the campaign
was “pretty much stalled,” it explained that this was “due to the
[Company’s] constant efforts to interrogate employees about if
we are for or against the union and the fact that supervisors are
constantly surveilling us.” (R. Exh. 1, pp. 52–53.)
In any event, there is no record evidence or contention that
the Company was provided a copy of Phipps’ affidavit before it
granted the wage increases. The NLRB’s policy and practice is
not to provide a respondent with such a pretrial affidavit unless
and until the witness has testified for the General Counsel or
the charging party at the hearing. See Sec. 102.118(b)(c) and
(d) of the Board’s Rules; and H.B. Zachry Co., 310 NLRB 1037
(1993).
Accordingly, the wage increases violated the Act as alleged.
C. Alleged Unlawful Discharge and Discipline
1. Thomas Wallace
The General Counsel alleges that the Company violated Sec-
tion 8(a)(1) and (3) of the Act by discharging Wallace on April
6 because he complained at a March 31 company meeting
about the Company’s health benefits and/or because he sup-
ported the Union, and to discourage other employees from en-
gaging in such activities. The General Counsel also alleges that
the Company violated Section 8(a)(1) of the Act by presenting
a separation agreement to Wallace at the time of his discharge
that included certain overbroad provisions.64 (GC Exh. 1(g),
par. 5(a), (p) – (r), and GC Exh. 1(m), par. 6(b); Tr. 699–700.)
a. The discharge
As discussed in section B.2 above, Wallace is a warehouse
loader who had worked at the Phoenix facility for over 6 years
and signed a union card at the Denny’s meeting on January 28.
There is no evidence that Wallace passed out union flyers or
otherwise openly campaigned for the Union at the facility.65
However, as indicated in section A.1 above, he was the first
employee to speak up when Engdahl opened the floor to ques-
tions at the January 28 town hall meeting, asking why Sham-
rock’s competitors were unionized (GC Exh. 8(a), at 12–13.)
Wallace also asked a few questions at a mandatory “state of
the company” meeting with all of the warehouse workers and
managers on March 31. The meeting was conducted by Robert
Beake, the Company’s senior vice-president for HR. Beake
had served in that position for 14 years, and reported directly to
both President/CEO Kent McClelland and his father, Norman
McClelland, the chairman of the board.
Like the January 28 town hall meeting, the meeting was se-
cretly recorded by Phipps. Beake began by saying that neither

64 Although the complaint alleges that the provisions were also dis-
criminatory, the General Counsel’s posthearing brief argues only that
they were overbroad, and thus appears to have abandoned the theory.
In any event, the General Counsel failed to carry the burden of proof
and persuasion.
65 Phipps testified that Wallace brought the Union three signed cards
and was outspoken about the benefits of the Union (Tr. 606). However,
this testimony was not corroborated and the General Counsel’s
posthearing brief does not mention or rely on it.
of the McClellands could be present at the meeting, but that he
would play a recorded message from each, one from Kent “in
the beginning” and one from Norman “at the end.” He then
played the message from Kent. It summarized the Company’s
“tremendous growth” and “wonderful results” during the previ-
ous year, thanked the employees for their contribution, and
listed the topics for the meeting (the company’s stock and re-
tirement programs, changes in HR, and other “things that affect
[employees] directly and personally”).
Beake then discussed these points in more detail. He noted
that, although the Company was still privately held and family
owned, it had around $3 billion in sales the previous year, and
an annualized growth of over 8 percent over the previous 30
years, which was “incredibly impressive” for the industry. He
also said that the Company expected “some incredible num-
bers” in 2015, including $300 million in sales from just one of
the Company’s newer food service operations in California. He
said that all of the profits are put back into the Company to
continue its growth. However, he noted that a substantial num-
ber of employees were stockholders and had benefited from the
large increase in the Company’s stock price. He also discussed
various employee benefits offered by the Company. He noted,
for example, that the Company continued to contribute half of
the employee deductible under the Company’s wellness and
healthcare plans, and also continued to offer a 401(k) match
and profit sharing.
Beake then introduced Vince Daniels, the Company’s new
vice president for HR. Daniels had been hired 6 months earlier,
in August 2014, and reported to Beake. Daniels briefly sum-
marized various changes in HR and employee services, includ-
ing a new internet based portal for employees to access 24/7.
Beake then “close[d]” by playing a recorded message from
Norman McClelland. The message reiterated how much the
Company was progressing and gaining in market share. It also
again thanked the employees for their part, saying that the
Company “value[d]” them and wanted to treat them “like fami-
ly.”
When the message was finished, Beake repeated that it
“close[d] out what [the Company] wanted to convey” to the
employees at the meeting. However, he added that there was “a
little bit of time . . . to take some questions if [they had] any.”
An employee then asked a few questions about the healthcare
plan; specifically, about getting a medical discount card and
whether the deductible had gone up.
After these two initial questions had been answered, Beake
asked if there were any other questions. Wallace at that point
raised his hand and said, “Yeah. Is there any way we can get
our old insurance back?” This question was immediately greet-
ed with a burst of laughter and applause among the employees.
When it subsided, Wallace continued, “You know, 300 million
dollars. I mean it’s through the roof. Is that even being consid-
ered or anything?”
Beake responded that the $300 million was sales revenue and
not profits, and that the Company’s profit margin was only
pennies on the dollar. He acknowledged that the healthcare
plan had some drawbacks as well as benefits, but said the
Company tried to do the best it could for the employees by
changing to the high deductible plan and covering half of the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
deductible for them.
Wallace then followed up with a second question: “Is there
any way you could contribute the full 3,000 or the full contribu-
tion? Because some companies do that. I was just wondering.”
Beake replied that “most companies don’t contribute anything
to the deductible.” The Company does, he continued, and “ob-
viously it pleases a lot,” but “[i]t doesn’t please all.” He noted
that the Company spent over $23 million on healthcare in 2014,
and said it would continue to look at the plan to try to manage
its costs.
Another employee then asked a question about the next open
enrollment for the long-term and wellness programs. Wallace,
however, did not remain to hear the answer. He was near the
back of the room, next to the rear door (one of three exits), and
decided to leave at that point and return to his work station.
When he got there, he saw his supervisor, Myers, who had left
even earlier, about halfway through the meeting. Wallace told
Myers he left because the packed room was so hot and stuffy,
and Myers said he had left for the same reason. Wallace also
told Myers about the applause in response to his question to
Beake, and said he hoped he would not get in trouble for it.
Myers assured him he would not.
Back at the meeting, Beake continued to take questions for a
few more minutes. After the last one was answered, he an-
nounced, “We’re out of time,” and thanked everyone. The
employees then returned to their work stations.66
Wallace continued working the remainder of the day and
again on April 1, 3, and 5 without any problem. On April 6,
however, after he had finished lunch, the shift manager told
him to “grab [his] stuff” and escorted him to HR. When he
arrived, Warehouse Manager Vaivao and Allen, the new HR
representative, were there.67 Wallace asked Vaivao what was
going on. Vaivao replied,
We have a situation here. Senior staff was offended that you
asked about the healthcare . . . [S]enior staff thought you were
rude and disrespectful and you're being terminated.
Wallace asked how he could be fired for asking questions when
the employees had been invited to do so. Vaivao replied,
Senior staff came together and . . . [the] decision came from
Norm and Kent [McClelland] . . . that you’re not going to be
happy with the benefits that we give you so you can find a

66 The foregoing summary is based primarily on the recording and
transcript of the meeting (GC Exh. 11(a), (b)), and the credible testimo-
ny of Wallace (Tr. 657–659) and Phipps (Tr. 536– 537). Wallace
testified that he also saw two other employees leave early. However,
this testimony was not corroborated and the General Counsel’s
posthearing brief does not mention or rely on it. As for Myers, he
admitted that he left early (Tr. 864–865). Although he testified that he
did so because “about that time of year . . . I just get a cold and I started
coughing really bad,” he did not deny telling Wallace that he had left
early for the same reason he did.
67 Allen subsequently resigned in June 2015 (Tr. 370–371), and did
not testify.
company with better benefits.68
Allen then presented Wallace with a “Separation Agreement
and Release and Waiver.” The agreement stated that he was
being terminated effective that day, and set forth the total
amount of “separation benefits” he would receive, in addition
to any unpaid wages, “provided” he signed the agreement. It
also contained various other terms and conditions, including, as
discussed below, several confidentiality provisions. (GC Exh.
26.) Wallace signed that he received the agreement, but re-
fused to sign that he accepted it.
The parties agree that the proper test for evaluating whether
Wallace’s discharge was unlawful is set forth in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Under that test, the General
Counsel must prove by a preponderance of the evidence that
the employee's union or other protected activity was a substan-
tial or motivating factor in the adverse action. The General
Counsel can make a sufficient initial showing in this regard by
demonstrating that (1) the employee engaged in the union or
protected activity and the employer knew it, or the employer
believed or suspected that the employee engaged in or was
likely to engage in such activity, and (2) the employer had ani-
mus against such activity. If the General Counsel makes the
required initial showing, the burden shifts to the employer to

68 I credit Wallace’s testimony about the meeting with Vaivao and
Allen (Tr. 659–662, 665–666, 678, 696–697), which was detailed and
consistent both with what he subsequently told Phipps (Tr. 541–543,
609) and with the sworn statement he gave to the NLRB 2 weeks after
the meeting (R. Exh. 5, pp. 9–10). Although Kent McClelland denied
any involvement in the discharge decision (Tr. 351–352), and Vaivao
denied saying or suggesting otherwise on April 6 (Tr. 150–154, 906), I
discredit that testimony. First, there is no reason to believe Beake
would not have spoken to one or both of the McClellands about the
meeting. As indicated above, Beake reported directly to them on a
regular basis, and there was plenty of time to report to them about the
state-of-the-company meeting between March 31 and April 6. Indeed,
Beake did not deny reporting to the McClellands about the meeting,
and the Company has offered no other explanation for the week-long
delay before discharging Wallace. Moreover, as discussed infra, HR
Vice President Daniels’ testimony that he alone made the discharge
decision without talking to anyone is wholly unbelievable. Second, as
noted above (fns. 12, 13, 16, 20, 49), Vaivao was a particularly unrelia-
ble witness. And his testimony about the March 31 meeting that led to
Wallace’s termination was no better. For example, he testified that
Wallace was the only one who left the meeting early (Tr. 193). How-
ever, as indicated above, there is no dispute that Myers, Wallace’s
direct supervisor, left the meeting about halfway through. Vaivao also
testified that Wallace was “agitated” when he asked his questions, and
that he “got up and stormed out” after Beake answered them (Ibid.).
However, neither is reflected in the recording of the meeting: Wallace
asked his questions in a normal/conversational tone, and there is no
sound of any disturbance after Beake answered them. Further, as indi-
cated above, Wallace was right next to the rear exit, and Beake himself
testified that he did not even notice Wallace leaving (Tr. 444, 446).
Finally, although Daniels testified that Wallace made a dismissive wave
forward with his hand as he walked out of the meeting (Tr. 714), there
was no mention of this in the Company’s position statement during the
NLRB’s investigation (GC Exh. 29, p. 22, par. 5), no other witness
testified at the hearing that they saw Wallace make such a gesture (not
even Vaivao), and Wallace himself credibly denied doing so (Tr. 657).
SHAMROCK FOODS CO. 27
establish by a preponderance of the evidence that it would have
taken the same action even in the absence of the employee's
actual or suspected union or protected activity. See Corliss
Resources, 362 NLRB No. 21, slip op. at 13 (2015); Consoli-
dated Bus Transit, 350 NLRB 1064, 1065 (2007); Signature
Flight Support, 333 NLRB 1250 (2001), affd. 31 Fed. Appx.
931 (11th Cir. 2002); and Multi-Ad Services, 331 NLRB 1226,
1240 (2000), enfd. 255 F.3d 363 (7th Cir. 2001), and cases
cited there.
Here, as indicated above, the General Counsel alleges that
the Company unlawfully discharged Wallace (1) for complain-
ing about the healthcare plan, and/or (2) because it knew or
suspected that he supported the union campaign. With respect
to the first, the General Counsel has clearly satisfied the initial
Wright Line burden. It is well established that an employee
engages in protected concerted activity by complaining at a
group meeting about employment terms common to all em-
ployees. Worldmark by Wyndam, 356 NLRB 765 (2011). And
the applause from Wallace’s coworkers in response to his initial
question to Beake certainly supports applying that general prin-
ciple here. Further, Vaivao specifically stated at the termina-
tion meeting that Wallace was being fired for complaining to
Beake about the Company’s healthcare plan at the meeting.69
The General Counsel has also satisfied the initial Wright
Line burden with respect to the second. As indicated above,
Wallace was a union supporter. And it is certainly a reasonable
inference that the Company knew or suspected this given the
nature of Wallace’s questions at the January 28 and March 31
meetings and Vaivao’s statements at the March 26 union pre-
vention meeting that the Company knew “exactly” which “dis-
gruntled” employees supported the Union and attended union
meetings.70 Further, the Company’s strong animus toward
union supporters is well established by the Company’s numer-
ous unfair labor practices and the record as a whole. See Met-
ro-West Ambulance Service, 360 NLRB No. 124, slip op. at 1
(2014); and Lucky Cab Co., 360 NLRB No. 43, slip op. at 6
(2014), and cases cited there (employer’s contemporaneous
8(a)(1) violations demonstrate its union animus).71
Moreover, as discussed below, there is an abundance of oth-
er, circumstantial evidence that the discharge was unlawfully
motivated. See, e.g., Bally’s Park Place, Inc. v. NLRB, 646
F.3d 929, 935–939 (D.C. Cir. 2011); and Shattuck Denn Mining

69 As noted above, I have credited Wallace’s testimony about what
Vaivao said at the termination meeting. Although Phipps acknowl-
edged that he had not been disciplined when he complained in an argu-
ably rude and disrespectful manner at previous company meetings
about how the Company treated employees, those meetings were con-
ducted before the union campaign and/or by lower level managers or
supervisors. See Tr. 543–544, 601, 609–611, 630–631; and . Exh. 1, p.
36.
70 See sec. A.6, above. Engdahl admitted that Wallace’s question
about Shamrock’s unionized competitors at the January 28 town hall
meeting “stuck” with him, as it was “pretty insightful” and had never
been asked at any of the numerous similar meetings he had conducted
in the past (Tr. 894, 897–898).
71 See also EF International Language School, Inc., 363 NLRB No.
20, slip op. at 1 n. 2 (2015) (General Counsel is not required to show
animus toward the alleged discriminatee’s union or protected activity in
particular in order to satisfy the initial burden under Wright Line).
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966) (unlawful
motive for discharge may be established by circumstantial evi-
dence).
Shifting reasons for discharge. In the June 8 position state-
ment it filed during the NLRB investigation of the allegations,
the Company stated that Wallace was discharged for “belliger-
ently interrupting a senior Company official multiple times”
and because he “abruptly left the meeting without permission”
(GC Exh. 29, p. 22, par. 5). At the hearing, however, HR Vice
President Daniels, who claimed that he alone made the deci-
sion, testified that Wallace was terminated because he made a
“dismissive waving gesture forward” with his hand after Beake
answered his questions and because he walked out of the meet-
ing (714–715). And Daniels later testified that Wallace was
terminated solely for leaving the meeting (Tr. 718). See also
the Company’s posthearing brief at 43 (“Wallace was dis-
charged because he stormed out of [the] March 31 mandatory
meeting”).72
Such shifting reasons support an inference of unlawful mo-
tive. See, e.g., Lucky Cab, above; Naomi Knitting Plant, 328
NLRB 1279, 1283 (1999); Black Entertainment Television, 324
NLRB 1161 (1997); and Zurn Industries, 255 NLRB 632, 635
(1981), affd. 680 F.2d 683, 694 (9th Cir. 1982), cert. denied
462 U.S. 1131 (1983).
False reasons for discharge. As indicated above, Wallace did
not interrupt Beake, belligerently or otherwise, not even once.
Nor did he make any dismissive gestures when he left the meet-
ing. See fn. 68, supra. Even the one consistent reason offered
to the NLRB during the investigation and hearing—that Wal-
lace engaged in insubordination by leaving the mandatory
meeting early—is at best a distortion or exaggeration of the
facts. As discussed above, Beake twice stated to the employees
that the meeting would “end” or “close” with the recorded mes-
sage from Norman McClelland. And he repeated this yet again
when the recording had finished, stating that it “close[d] out
what [the Company] wanted to convey” to the employees.
Thus, while Beake thereafter offered to answer any questions,
the offer was clearly a mere courtesy.

72 The Company did not produce a termination report or any other
documents regarding the discharge, as requested in paragraphs 28–33
of the General Counsel’s subpoena duces tecum (Tr. 542). When asked
for an explanation on the second day of hearing for failing to produce a
termination report, company counsel stated, “Your Honor, we did look
into that. There is no—currently, they don’t give written termination of
assistant people. We did—that one we did look into, and it just doesn’t
exist.” Counsel also stated that there were no emails or other commu-
nications about the discharge because Daniels had “compartmental-
ized” the decision. (Tr. 84–85.) However, subsequent testimony estab-
lished that the Company does regularly prepare termination reports;
that there was a termination report for Wallace; and that it was circulat-
ed by email (Tr. 403–410). For this and the other reasons previously
discussed, I ruled during the hearing that the General Counsel was
entitled to various evidentiary sanctions, including, on request, appro-
priate adverse inferences. See fn. 29, above. However, the General
Counsel’s posthearing brief does not request an adverse inference that
the discharge was unlawfully motivated based on the Company’s sub-
poena noncompliance. And given all of the other direct and circum-
stantial evidence of unlawful motive discussed above, it is unnecessary
to adopt or rely on an adverse inference.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Such false or exaggerated reasons are likewise evidence of
unlawful motive. See, e.g., Lucky Cab, above; Key Food, 336
NLRB 111, 114 (2001); Yenkin-Majestic Paint Co., 321 NLRB
387, 396 (1996), enfd. mem. 124 F.3d 202 (6th Cir. 1997);
Radisson Muehleback Hotel, 273 NLRB 1464, 1475–1476
(1985); William L. Meyers, Inc., 266 NLRB 342, 346 (1983),
enfd. mem. 735 F.2d 1371 (9th Cir. 1984); and Ramada Inn,
201 NLRB 431, 434-435 (1973). See also Shattuck Denn Min-
ing Corp., above.
Lack of consultation or investigation. As previously noted,
Daniels testified that he decided to fire Wallace on his own,
without consulting anyone—not his immediate superior Beake
(who he meets with daily and is the person Wallace allegedly
disrespected), Vaivao (who manages the Phoenix warehouse),
or Myers (who supervised Wallace). Nor did he speak to Wal-
lace himself. (Tr. 711–712, 720–721).
However, there are two problems with this testimony. First,
it is inherently unbelievable. As indicated above, Daniels had
been hired as HR vice president only 6 months earlier. Further,
he admitted on cross-examination that he focuses on “strategic
matters” and is “not in the bowels of the ship”; that he had
“never” been involved in terminating a warehouse employee
before; and that he was unfamiliar with the Company’s poli-
cies, personnel handbook, or progressive disciplinary system.73
Moreover, it is inconsistent with other evidence. As indicated
above, Vaivao told Wallace that the McClellands had made the
decision. Further, Daniels testified that he told Allen to fire
Wallace the very next day after the March 31 meeting, i.e. on
April 1 (Tr. 720). However, Allen and Vaivao did not do so
until April 6, allowing Wallace to continue working on April 1,
3, and 5. And, as noted above, no explanation has been offered
for the delay.74
Second, even if Daniels did, in fact, make the decision in the
confined and constricted manner he described, this in itself is
strong evidence of unlawful motive. As indicated above, while
Daniels may have had the authority to terminate warehouse
employees, he did not have any experience, knowledge, or
responsibility regarding such disciplinary decisions at Sham-
rock. Further, it takes little imagination to think of one or two
common reasons why Wallace might have had an urgent need
to leave the meeting. Thus, if Daniels was truly concerned
about Wallace leaving the meeting during the open question
period, it would have been natural (and consistent with the
Company’s desire to treat employees “like family”) to inquire
why Wallace had left before terminating him. Yet, Daniels

73 Tr. 716–718. The handbook states: “Discipline will be adminis-
tered utilizing the following guidelines, but discipline may start at any
level within this process: Step 1–Counseling; Step 2– Verbal Warning;
Step 3–Written Warning; Step 4–Final Warning/3-Day Suspension;
Step 5–Termination” (GC Exh. 3, p. 64). Daniels admitted that he did
not consult the handbook or the disciplinary guidelines in deciding to
immediately terminate Wallace (Tr. 717–718).
74 I therefore discredit Daniels’ testimony. Rather, I find, consistent
with Vaivao’s statements at the April 6 termination meeting (which as
previously noted constitute nonhearsay admissions), that Beake and/or
other managers met with or otherwise reported to the McClellands
between March 31 and April 6 what transpired at the meeting, and that
the McClellands directed that Wallace be discharged.
never did so. Accordingly, it is a reasonable inference that this
was not the real reason for discharging him, but a pretext to
conceal the Company’s unlawful motive. See, e.g., Golden
State Foods Corp., 340 NLRB 382, 385 (2003) (respondent did
not seek an explanation from employee before suspending
him); Casa San Miguel, Inc., 320 NLRB 534, 571 (1995) (re-
spondent failed to consult with employees’ supervisor or even
speak to the employees involved before disciplining them); and
Williams Services, 302 NLRB 492, 502 (1991) (respondent
failed to consult with the site manager or any of the employee’s
immediate supervisors before terminating her).75
Finally, the Company has failed to satisfy its burden of
showing that it would have taken the same action anyway, re-
gardless of Wallace’s protected conduct. Indeed, given that the
Company’s proffered reason or reasons for discharging Wallace
were pretextual, the Company has failed by definition to make
such a showing. See, e.g., Stevens Creek Chrysler Jeep Dodge,
357 NLRB 633, 639 (2011), enfd. sub. nom. Mathew Enter-
prise v. NLRB, 498 Fed. Appx. 45 (D.C. Cir. 2012); and Golden
State Foods, above. Accordingly, the discharge of Wallace
violated Section 8(a)(1) and (3) of the Act, as alleged.76
b. The separation agreement
The General Counsel contends that the following three pro-
visions of the separation agreement were overbroad and unlaw-
ful under the first prong of the test in Lutheran Heritage, supra,
i.e. because employees would reasonably construe them to
prohibit union or protected activity:77
10. You agree that, except as may be required by law, you
will not directly or indirectly, use or disclose, or allow the use
or disclosure, to any person, business, firm, corporation, part-
nership or other entity any confidential, or proprietary infor-
mation concerning any of the Released Parties, its business,
its suppliers or its customers. All information, whether writ-
ten or otherwise, regarding the Released Parties’ businesses,
including but not limited to financial, personnel or corporate
information and information regarding customers, customer
lists, costs, prices, earnings, systems, operating procedures,
prospective and executed contracts and other business ar-
rangements and sources of supply are presumed to be confi-
dential information of the Released Parties for purposes of
this Agreement . . . .
* * *
12. You have executed a Confidentiality Agreement and you

75 As discussed above, Myers, Wallace’s supervisor, also left the
meeting early, and there is no evidence that he was disciplined, much
less discharged, for doing so. However, the General Counsel’s
posthearing brief does not rely on this disparate treatment as evidence
of the Company’s unlawful motive.
76 In light of the foregoing findings, it is unnecessary to address the
General Counsel’s alternative argument (Br. 55–56) that the discharge
was unlawful under the standards set forth in Atlantic Steel Co., 245
NLRB 814, 816 (1979) for evaluating when an employee’s outburst
during protected activity costs the employee the protection of the Act.
77 See discussion in sec. A.7 above.
SHAMROCK FOODS CO. 29
acknowledge that the terms of such agreement remain in ef-
fect notwithstanding the termination of your employment. . . .
You may not use/disclose any of the Company’s Confidential
Information for any reason following your termination and
during the transition period.
13. You agree not to make any disparaging remarks or take
any action now, or at any time in the future, which could be
detrimental to the Released Parties. . . . [GC Exh. 26, p. 3–4.]
The General Counsel’s position is well supported. The pro-
hibitions in paragraphs 10 and 12 on disclosing “confidential
information,” including any “personnel or corporate infor-
mation,” following termination of employment would reasona-
bly be interpreted as prohibiting the discussion of the Compa-
ny’s wages, hours, and working conditions with a union or
other third person or entity. See Rocky Mountain Eye Center,
P.C., 363 NLRB No. 34, slip op. at 1 n. 1, and JD. at 7 (2015)
(employer’s confidentiality agreement provided that “infor-
mation about physicians, other employees, and the internal
affairs of [the company] are considered confidential”); and
DirectTV U.S., 359 NLRB No. 54, slip op. at 3 (2013), reaffd.
362 NLRB No. 48, slip op. at 1 n. 1 (2015) (“confidentiality”
provision in employer’s handbook instructed employees to
“[n]ever discuss details about your job, company business or
work projects with anyone outside the company” and to
“[n]ever give out information about . . . employees,” and ex-
pressly included “employee records” as one category of “com-
pany information” that must be held confidential). See also
Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 209 (5th Cir.
2014).
Paragraph 13’s broad prohibition, without any accompanying
explanation or illustrative examples, on making “any disparag-
ing remarks or tak[ing] any action now, or at any time in the
future, which could be detrimental” to the Company would
likewise reasonably be interpreted to prohibit or restrict union
or protected activity. See Lily Transportation Corp., 362
NLRB No. 54 (2015), slip op. at 1 and JD at 8 (employer’s
handbook rule stated that company would “use every means
available under the law to hold persons accountable for dispar-
aging, negative, false, or misleading information or comments
involving [the company or its] employees and associates on the
internet and may take corrective action up to and including
discharge of offending employees”); First Transit, 360 NLRB
No. 72, slip op. at 1 fn. 5 (employer’s “disloyalty” rule prohib-
ited employees from participating “in outside activities that are
detrimental to the company’s image or reputation, or where a
conflict of interest exists,” or “conducting oneself during non-
working hours in such a manner that the conduct would be
detrimental to the interest or reputation of the Company”); and
Hills & Dales General Hospital, 360 NLRB No. 70 (2014)
(employer’s rules prohibited employees from “engaging in . . .
negativity” or “mak[ing] negative comments about our fellow
team members, including coworkers and managers,” and re-
quired employees to “represent [the company] in the communi-
ty in a positive and professional manner”).
Contrary to the Company’s contention, it makes no differ-
ence that the foregoing provisions were contained in a separa-
tion agreement and that Wallace refused to sign it. Cf. Metro
Networks, 336 NLRB 63, 67 fn. 20 (2001) (finding that the
employer violated Section 8(a)(4) and (1) of the Act by offering
unlawfully discharged employees severance agreements that
included overbroad nonassistance and nondisclosure provi-
sions, notwithstanding that employees refused to sign it).
The General Counsel also challenges paragraph 9 of the sep-
aration agreement, which states:
9. Because the information in this Separation Agreement is
confidential, it is agreed that you will not disclose the terms of
this Separation Agreement to anyone, except that you may
disclose the terms of this Separation Agreement to your fami-
ly, your attorney, your accountant, a state unemployment of-
fice, and to the extent required by a valid court order or by
law.
The General Counsel argues that this provision is likewise
unlawful under Lutheran Heritage because it “essentially pro-
hibit[s] [Wallace] from discussing his discharge, a clear viola-
tion of the Act” (Br. 57).
However, the provision cannot reasonably be construed in
this manner. The separation agreement and its terms say noth-
ing about the underlying circumstances or reasons for the dis-
charge. Therefore, nothing in paragraph 9 prohibits disclosing
those circumstances or reasons. Accordingly, as the General
Counsel has cited no other basis or authority for invalidating
the provision, the allegation is dismissed.
2. Mario Lerma
As discussed in section B. 7 above, on May 5 Operations VP
Engdahl and Warehouse Manager Vaivao met with Lerma to
discuss “rumblings coming off the floor” about him “heckling,”
“insulting,” and engaging in “potential slowdown[s]” against
coworkers who did not support the union campaign. During the
course of that meeting, Engdahl and Vaivao made unlawful
statements that created an overbroad rule that employees would
reasonably construe as prohibiting or restricting protected union
activity, and threatened Lerma with reprisals if he violated that
rule. The General Counsel alleges that Engdahl and Vaivao
also unlawfully disciplined Lerma at the May 5 meeting be-
cause of his protected union activities, and to discourage him
and other employees from engaging in such activities (GC Exh.
1(m), par. 6(a), (c)).78
The record supports the allegation. First, although the Com-
pany denies it, a preponderance of the evidence establishes that
Lerma was, in fact, disciplined at the meeting. Indeed, Vaivao
acknowledged at the hearing that the meeting was in the nature
of a “counseling” (Tr. 245), which as noted above (fn. 73) is the
first step in the Company’s progressive disciplinary process.

78 The complaint and amended complaint allege that, like Wallace,
Lerma was also disciplined because he engaged in other protected
concerted activities, in violation of Section 8(a)(1) of the Act. Howev-
er, the General Counsel’s posthearing brief argues only that Lerma was
disciplined because of his union activities, in violation of Section
8(a)(3). Accordingly, the independent 8(a)(1) discipline allegation
appears to have been abandoned. In any event, the General Counsel
failed to carry the burden of proof and persuasion.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
This is consistent with Vaivao’s statement at the meeting that
Lerma could get in “deeper trouble” if employees continued to
complain about him, a statement which both confirmed that
Lerma was already in trouble, and warned that he would be in
even more trouble in the future. Further, although Engdahl
subsequently assured Lerma that he was “not getting in trouble”
at that time, he immediately cast a shadow over that assurance
with a veiled warning that Lerma would be terminated, the very
last step in the progressive disciplinary process, the next time.
Cf. Altercare of Wadsworth, 355 NLRB 565 (2010) (finding
that the employer’s verbal warnings to several employees con-
stituted discipline, even though they were not memorialized in
the employees’ personnel file, as such warnings were specifi-
cally included in the employer’s progressive disciplinary sys-
tem and the warnings were administered to the employees by
high level officials).
Second, the evidence also establishes that the discipline was
unlawful. Again, the parties agree that the proper analysis is set
forth in Wright Line.79 Applying that analysis, the General
Counsel clearly satisfied the initial burden. As discussed in
section B.6 above, Lerma was a prominent union supporter, the
Company obviously knew it, and the Company’s animus is
amply demonstrated by its numerous other violations, including
Supervisor Garcia’s unlawful search for union cards on Ler-
ma’s clipboard just a few days before the May 5 meeting.
Moreover, as previously discussed, Engdahl and Vaivao admit-
ted that they did not even investigate the alleged complaints
about Lerma’s “heckling,” “insulting,” and “potential slow-
down[s].” As discussed above with respect to Wallace’s dis-
charge, this admission is strong circumstantial evidence that
Lerma’s alleged misconduct was not the real reason for disci-
plining him, but a pretext to conceal the Company’s true mo-
tive: to discourage Lerma from continuing to solicit support for
the union. It also effectively prevents the Company from satis-
fying its rebuttal burden of establishing that it would have dis-
ciplined Lerma anyway, even if he had not engaged in the al-
leged misconduct. Accordingly, the discipline violated Section
8(a)(3) of the Act as alleged.
D. Alleged Unlawful Employee Handbook Rules
The General Counsel alleges that the Company has main-
tained numerous rules in its Associate Handbook during the
same period that are unlawfully overbroad under the first prong
of the Lutheran Heritage test, i.e. because employees would
reasonably construe them to prohibit or restrict protected activi-
ty (GC Exh. 1(g), pars. 5(b)–(e); Tr. 750–752). 80
1. Company confidential information
The handbook contains numerous sections, including one en-

79 No party asserts that the discipline should be evaluated under the
Burnup & Sims analysis applicable where an employer disciplines an
employee for misconduct during the course of protected activity. See
NLRB v. Burnup & Sims, 379 U.S. 21 (1964).
80 See discussion in sec. A.7 above. Although the complaint alleges
that the rules are also discriminatory, the General Counsel’s posthear-
ing brief argues only that they are overbroad, and thus appears to aban-
don that allegation. In any event, the General Counsel has failed to
carry the burden of proof and persuasion.
titled “Protecting the Company’s Confidential Information.” It
states in relevant part as follows:
The Company’s confidential information is a valuable asset
and includes: information, knowledge, or data concerning
costs, commission reports or payments, purchasing, profits,
markets, sales, discounts, margins, customer histories or pref-
erences, relationships with vendors, organization structures,
associates, customers, surveys, customer lists, lists of prospec-
tive customers, customer account records, marketing plans or
efforts, sales records, training and service materials, Company
manuals and policies, computer programs, software and disks,
order guides, financial statements and projections, business
plans, budgets, supplier lists, contracts, calendars and/or day-
timers that contain customer contact and other customer in-
formation, compensation schedules, proposals and quotes for
business, notes regarding customers and prospective custom-
ers and pricing information.
This information is the property of the Company and may be
protected by patent, trademark, copyright and trade secret
laws. All confidential information must be used for Company
business purposes only. Every associate, agent, and contractor
must safeguard it. THIS RESPONSIBILITY INCLUDES
NOT DISCLOSING THE COMPANY CONFIDENTIAL
INFORMATION, INCLUDING INFORMATION
REGARDING THE COMPANY’S PRODUCTS OR
BUSINESS, OVER THE INTERNET, INCLUDING
THROUGH SOCIAL MEDIA. . . .
(i) Non-Disclosure/Assignment Agreement. When you
joined the Company, you signed an agreement to protect and
hold confidential the Company’s proprietary information.
This agreement remains in effect for as long as you work for
the Company and after you leave the Company. Under this
agreement you may not disclose the Company’s confidential
information to anyone or use it to benefit anyone other than
the Company without the prior written consent of an author-
ized Company officer. . . . [GC Ex. 3, pp. 8–9.]
Like the confidentiality provisions in the Company’s separa-
tion agreement, the broad provisions of the foregoing rule,
which designate as confidential any “information, knowledge,
or data” concerning “associates” (i.e. employees), “Company
manuals and policies,” and “compensation schedules,” would
reasonably be interpreted to prohibit employees from discuss-
ing wages, hours, and working conditions with a union or other
third person or entity. Accordingly, the provisions violate Sec-
tion 8(a)(1) of the Act as alleged. See cases cited in sec. C.1.b
above.
2. Government information requests
The handbook also includes a section entitled “Handling the
Confidential Information of Others.” It contains seven subsec-
tions, including one entitled “Requests by Regulatory Authori-
ties,” which states:
The Company and its associates must cooperate with appro-
priate government inquiries and investigations. In this con-
text, however, it is important to protect the legal rights of the
SHAMROCK FOODS CO. 31
Company with respect to its confidential information. All
government requests for information, documents or investiga-
tive interviews must be referred to the Company’s Human
Resources Department. No financial information may be dis-
closed without the prior approval of the Company’s President
or Chief Financial Officer. [GC Exh. 3, p. 11]
The General Counsel argues that this provision would rea-
sonably be interpreted to require employees to refer NLRB
requests for documents or investigative interviews to the Com-
pany, thereby interfering with the investigation of unfair labor
practice charges.
Reading the provision in isolation, the General Counsel’s ar-
gument is well supported by Board precedent. See DirectTV,
above, 359 NLRB No. 54, slip op. at 3 (employer’s handbook
stated that, “[i]f law enforcement wants to interview or obtain
information regarding a [company] employee . . . the employee
should contact the security department . . . who will handle
contact with law enforcement agencies and any needed coordi-
nation with [company] departments”). See also Management
Consulting, Inc., 349 NLRB 249 (2007), and cases cited there
(employer statements that discourage employees from provid-
ing information and hinder the Board’s investigation of unfair
labor practice charges violate Section 8(a)(1) of the Act).
However, in evaluating whether a challenged rule is unlaw-
ful, the Board does not read particular phrases in isolation.
Lutheran Heritage, 343 NLRB at 646. Here, as indicated
above, the subject provision is actually a subsection of a broad-
er section. The introductory paragraph of that section indicates
that it deals only with confidential information provided to the
Company by “third party” companies and individuals that the
Company has, or may eventually have, “business relationships”
with. Thus, the Company argues that, read in context, the
subject provision would not reasonably be interpreted to en-
compass government requests for information about its own
employees or their wages, hours, and working conditions.
The Company’s argument is a reasonable one. Further, the
General Counsel, who has the burden of proof and persuasion,
offers no rebuttal to it, instead simply ignoring the context of
the provision. See GC’s Br. at 68. Accordingly, this allega-
tion is dismissed. See generally Professional Medical
Transport, Inc., 362 NLRB No. 19, slip op. at 13 (2015); and
Desert Toyota, 346 NLRB 110, 115 (2005).
3. Media information requests
Another subsection under the same section is entitled “Com-
pany Spokespeople.” It states:
The Company has an established Spokesperson who handles
all requests for information from the Media. Ms. Sandra Kelly
at the Dairy is the person who has been designated to provide
overall Company information or to respond to any public
events or issues for which we might receive press calls or in-
quiries. If you believe that an event or situation may result in
the press seeking additional information, please contact Ms.
Kelly at the Dairy to advise her of the nature of the situation
so that she may be prepared for any calls. Only the Compa-
ny’s CEO may authorize another associate to speak on behalf
of the Company. [GC Exh. 3, p. 11].
The General Counsel argues that this provision would rea-
sonably be interpreted to require employees to disclose to the
Company whenever they have plans to publicize matters related
to their terms and conditions of employment or a union organ-
izing campaign, thereby unlawfully interfering with their right
to freely do so and discouraging them from engaging in such
protected activity. Again, however, the General Counsel fails
to acknowledge or address the fact that the provision is set forth
in a section that is limited to confidential information provided
to the Company by “third party” companies and individuals that
the Company has, or may eventually have, “business relation-
ships” with. Accordingly, this allegation is dismissed as well.
4. Company electronic and telephonic communications
systems
The handbook also includes a section entitled “Electronic
and Telephonic Communications.” The introductory para-
graphs of the section state in relevant part:
All electronic and telephonic communications systems and all
communications and information transmitted by, received
from, or stored in these systems are the property of Shamrock
and as such are to be used solely for job-related purposes. The
use of any software and business equipment, including, but
not limited to, facsimiles, computers, the Company’s E-mail
system, the Internet, and copy machines for private purposes
is strictly prohibited. . . .
Moreover, improper use of the E-mail system (e.g., spread-
ing offensive jokes or remarks), including the Internet, will not
be tolerated. [GC Exh. 3, p. 59.]
The General Counsel contends that the first paragraph is un-
lawful because it prohibits employees from using the Compa-
ny’s email and other electronic and telephone systems for union
or other protected activities even during nonworking time, cit-
ing Purple Communications, Inc., 361 NLRB No. 126 (2014)
(holding that employers must allow employees to use their
company email accounts for protected communications during
nonworking time absent special circumstances making a ban
necessary to maintain production or discipline). The General
Counsel contends that the second provision is unlawfully over-
broad because employees would reasonably construe the ban on
“improper” use of such systems to include protected conduct.
However, the Board in Purple Communications made clear
that such usage restrictions are only unlawful if employees
actually have access to the employer’s systems. See slip op. at
1, 3, and 5. See also UPMC, 362 NLRB No. 191, slip op. at 3
(2015). As indicated by the Company, the record here fails to
establish that the warehouse employees have such access.
Former HR Manager Wright specifically testified that they do
not have access to the email system (Tr. 375), and no evidence
was presented to rebut her testimony or to establish that the
employees have access to other electronic and telephone sys-
tems.81 Accordingly, this allegation is also dismissed.

81 Arguably, the fact that the email provision is contained in the em-
ployee handbook is itself circumstantial evidence that employees have
email access. However, the General Counsel’s posthearing brief does
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
5. Monitoring use
The same section includes a subsection entitled “Monitoring
Use.” It states in relevant part:
To ensure that the use of electronic and telephonic communi-
cations systems and business equipment is consistent with
Shamrock legitimate business interests, authorized representa-
tives of Shamrock may monitor the use of such equipment
from time to time. This includes monitoring internet usage of
any kind. This may also include listening to stored voicemail
messages. In some functions, telephone monitoring is used to
assist in associate training and the development of quality cus-
tomer service: The associate will be notified if telephone
monitoring is applicable to their area.
In addition, Shamrock reserves the right to use software and
blog-search tools to monitor comments or discussions about
company representatives, customers, vendors, other associ-
ates, the company and its business and products, or competi-
tors that associates or non-associates post anywhere on the In-
ternet, including in blogs and other types of openly accessible
personal journals, diaries, and personal and business discus-
sion forums.
Shamrock cautions that associates should have no expectation
of privacy while using company equipment and facilities for
any purpose. [GC Exh. 3, p. 59.]
The General Counsel contends that the second paragraph
above is unlawful because it creates the impression that the
Company will engage in surveillance of employees’ protected
activities on the internet. The General Counsel acknowledges
that the Board in Purple Communications stated that an em-
ployer could monitor its computers and email systems for legit-
imate management reasons, and could also notify its employees
that it would do so. However, the General Counsel argues that
the second paragraph is nevertheless unlawful because it is not
limited to monitoring the Company’s computers and email
system, but includes comments or discussions employees post
using their personal computers or email accounts.
However, as indicated above, the introductory paragraphs of
the section indicate that the subsection only applies to company
computer and email systems. This is also apparent from the
first and third paragraphs of the subsection itself. Again, the
General Counsel’s posthearing brief fails to acknowledge or
address this factual context.82 Accordingly, this allegation is
dismissed as well.
6. Instant messaging
The same section also includes a subsection entitled “E-
mail,” which states:
Associates are prohibited from using any Instant Messaging
applications except those provided specially by Shamrock for
Associate’s business use. External E-mail messages may car-

not make this argument. Indeed, it does not even address the access
issue.
82 Like the complaint, the General Counsel’s posthearing brief sets
forth only the second paragraph of the subsection. It omits the first and
third paragraphs without any signal, notation, or explanation.
ry one or more attachments. An attachment may be any kind
of computer file, such as a word processing document,
spreadsheet, software program, or graphic image. [GC Exh.
3, p. 60.]
The General Counsel contends that this provision is unlawful
for the same reasons the previous two provisions above are
unlawful, i.e. because it prohibits employees from using com-
pany computer systems to send instant messages about union or
other protected activity even during nonworking time, and be-
cause it is not limited to company computer systems, and thus
employees would reasonably conclude that the rule also prohib-
its them from doing so on their personal computer systems or
devices.
Both arguments again fail for the same reasons discussed
above. There is no evidence that the employees have access to
company computer systems to send instant messages, and the
introductory paragraphs of the section in which the subsection
appears indicate that the subsection only applies to instant mes-
saging on company computer systems. Accordingly, this alle-
gation is likewise dismissed.
7. World Wide Web
The same section also includes a subsection entitled “World
Wide Web,” which states in relevant part:
As a general rule, associates may not forward, distribute, or
incorporate into another work, material retrieved from a Web
site or other external system. Very limited or “fair use” may
be permitted in certain circumstances. Any associate desiring
to reproduce or store the contents of a screen or Web site
should contact their Supervisor to ascertain whether the in-
tended use is permissible.
Use of the World Wide Web includes all restrictions, which
apply generally to the use of the Company’s E-mail and other
electronic and telephonic equipment, as noted above. In addi-
tion, the following rules apply with respect to Internet usage:
* * *
2. No Downloading of Non-Business Related Data: The
Company allows the download of files from the Internet.
However, downloading files should be limited to those that
relate directly to Shamrock business.
* * *
4. No Participation in Web-Based Surveys without Authoriza-
tion: When using the Internet, the user implicitly involves
Shamrock in his/her expression. Therefore, users should not
participate in Web or E-mail based surveys or interviews
without authorization. [GC Exh. 3, p. 60.]
The General Counsel contends that this provision is unlawful
for similar reasons, i.e. because (1) it would reasonably be read
by employees to (a) prohibit them downloading, forwarding or
distributing to coworkers information from the internet or other
external source about a union, the Company, or the employees
and their terms and conditions of employment; and (b) require
SHAMROCK FOODS CO. 33
them to obtain the Company’s authorization to participate in
surveys from unions about their concerns or interest in union
representation; (2) “there is no language in the provision indi-
cating that it was intended to apply only to use of the [Compa-
ny’s] computer system and equipment”; and (3) even if the
provision is limited to the Company’s computer systems and
equipment, the Company has failed to show special circum-
stances for the restrictions as required by the Board’s decision
in Purple Communications, above (GC Br. 74–75).
All of these arguments again fail for the same reasons dis-
cussed above. Both the context and the content of the provision
indicate that it applies only to company computers and equip-
ment,83 and there is no evidence the employees have access to
them. Accordingly, this allegation is also dismissed.
8. Blogging
The same section also includes a subsection entitled “Blog-
ging,” which states:
The following rules and guidelines apply to blogging, whether
blogging is done for Shamrock on company time, on a per-
sonal Web site during non-work time, or outside the work-
place. The rules and guidelines apply to all associates.
[1.] Shamrock discourages associates from discussing public-
ly any work-related matters, whether confidential or not, out-
side company-authorized communications. Nonofficial com-
pany communications include Internet chat rooms, associates’
personal blogs and similar forms of online journals or diaries,
personal newsletters on the Internet, and blogs on Web sites
not affiliated with, sponsored, or maintained by Shamrock.
[2.] Associates have a duty to protect associates’ home ad-
dresses, social security numbers, birth date, driver’s license
number, and other personal information and the confidentiali-
ty of Shamrock trade secrets, marketing lists, customer ac-
count information, strategic business plans, competitor intelli-
gence, financial information, business contracts, and other
proprietary and nonpublic company information that associ-
ates can access.
[3.] Associates cannot use blogs to harass, threaten, libel, or
slander, malign, defame or disparage, or discriminate against
co-workers, managers, customers, clients, vendors or suppli-
ers, and organizations associated or doing business with
Shamrock, or any members of the public, including Web site
visitors who post comments about blog contents.
[4.] Associates who maintain blogs on their own or another
Web site and choose to identify themselves as associates of
Shamrock are strongly encouraged to state explicitly, clearly,
and in a prominent place on the site that views expressed in
their blogs are associates’ own and not those of Shamrock or
of any person or organization affiliated or doing business with
Shamrock.

83 Again, the General Counsel’s posthearing brief omits and entirely
ignores the first sentence of the second paragraph of the provision
referencing “the Company’s E-mail and other electronic and telephonic
equipment.”
[5.] Shamrock respects associates’ right to express personal
opinions in personal blogs and does not retaliate or discrimi-
nate against associates who use their blogs for political, or-
ganizing, or other lawful purposes.
[6.] Associates cannot use Shamrock’s logo or trademarks or
the name, logo, or trademarks of any business partner, suppli-
er, vendor, affiliate, or subsidiary on any personal blogs or
other online sites unless their use is sponsored or otherwise
sanctioned, approved, or maintained by Shamrock.
[7.] Associates cannot post on personal blogs Shamrock’s
copyrighted information or company-issued documents bear-
ing Shamrock’s name, trademark, or logo.
[8.] Associates cannot post on personal blogs photographs of
company events, other associates or company representatives
engaged in Shamrock’s business, or company products, un-
less associates have received Shamrock’s explicit permission.
[9.] Associates cannot advertise or sell company products or
services via personal blogs.
[10 .] Shamrock discourages associates from linking to Sham-
rock’s external or internal Web site from personal blogs.
[11.] Shamrock will not construe this policy nor apply it in a
manner that interferes with associates’ rights under Section 7
of the NLRA. [GC Exh. 3, pp. 61–62.]
The General Counsel contends that the foregoing provision
is unlawful because (1) it explicitly states that it applies outside
the workplace; and (2) paragraphs 1–3, 6–8, and 10 would rea-
sonably be read by employees to prohibit or limit their right to
engage in protected union or other concerted activities (GC Br.
78–80).
As indicated by the General Counsel, unlike the other sub-
sections discussed above, this subsection clearly indicates that
it is not limited to company computers and equipment. Thus,
the subject paragraphs must be evaluated to determine whether
they would reasonably be construed to prohibit or restrict em-
ployees from using their personal computers or other devices to
engage in union or other protected communications or discus-
sions on the internet.
Paragraph 1. The broad language of this paragraph, discour-
aging employees from publicly discussing on the internet “any
work-related matters, whether confidential or not,” would rea-
sonably be interpreted by employees to encompass online dis-
cussions relating to employee terms and conditions of employ-
ment. Accordingly, it is overbroad. See Triple Play Sports Bar
& Grille, 361 NLRB No. 31 (2014), affd. ___ Fed. Appx. ___,
2015 WL 6161477 (2d Cir. Oct. 21, 2015).
84
Paragraph 2. This paragraph, which requires employees to

84 The Company does not contend that this paragraph (or paragraph
10) is lawful because it uses the word “discourages,” rather than “pro-
hibits.” In any event, Board precedent indicates to the contrary. See
Boeing Co., 362 NLRB No. 195 (2015), and cases cited there.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
“protect” their coworkers’ “home addresses” and “other per-
sonal information,” and the confidentiality of accessible com-
pany “financial information” and “nonpublic information,”
would reasonably be construed to prohibit or restrict employees
from disclosing their coworkers’ contact information and wag-
es, hours, and working conditions as part of a union organizing
or public campaign to improve their terms and conditions of
employment. Accordingly, like the similar confidentiality pro-
visions in the Wallace separation agreement and handbook
section on company confidential information, it is overbroad.
See secs. C.1.b, and D.1, above, and cases cited there. See also
Rio All-Suites Hotel & Casino, 362 NLRB No. 190, slip op. at
2 (2015) (“confidentiality” provision in employer’s handbook
prohibited employees from disclosing “to anyone outside the
company, indirectly or directly,” including “participation in
internet chat rooms or message boards,” “any information about
the company which has not been shared by the company with
the general public,” including but not limited to “organizational
charts, salary structures, [and] policy and procedures manu-
als”); and Lily Transportation, 362 NLRB No. 54, slip op. at 1
nn. 2, 3 and JD. at 6–7 (provisions in employer handbook pro-
hibited employees from disclosing “employee information
maintained in confidential personnel files” and from posting on
the internet “information or comments about [the company or
its] . . . employees or employees’ work that have not been ap-
proved by [the company]”).
Paragraph 3. This paragraph, which prohibits employees
from using blogs to, among other things, “malign” or “dispar-
age” coworkers or managers, would reasonably be interpreted
by employees to include protected union or other concerted
activity. Thus, like the similar provision in the Wallace separa-
tion agreement, it is overbroad. See sec. C.1.b, above, and
cases cited there. See also UPMC, 362 NLRB No. 191, slip op.
at 2 n. 5 and JD. at 24–25 (employer’s acceptable-use policy
prohibited employees, without prior written consent, from using
company computers, even on nonworking time, to establish or
participate in websites or social networks that “disparage or
misrepresent,” or make “false or misleading statements regard-
ing” the company).
Paragraphs 6 & 7. These provisions, which prohibit or re-
quire approval for employees to use Shamrock’s logo or trade-
marks, or post copyrighted information in documents contain-
ing its name, trademark, or logo, on any personal blogs or other
online sites, are also overbroad. See id., slip op. at 2 n. 5 and
JD. at 25, and cases cited there.
Paragraph 8. This provision, which requires company per-
mission to post on personal blogs photos of company events,
coworkers or company representatives engaged in company
business, or company products, would reasonably be interpret-
ed to encompass photos documenting unsafe or hazardous
working conditions and equipment or other evidence relevant to
employment-related disputes. Accordingly, it is likewise over-
broad. See Whole Foods Market, Inc., 363 NLRB No. 87
(2015) (employer’s rule prohibited all recording, including
using cameras to record images, without prior approval of the
company or consent of all parties); and Rio All-Suites Hotel,
362 NLRB No. 190, slip op. at 3–4 (employer’s rule banned
use of cameras, camera phones, audio-visual and other record-
ing equipment on company property without authorization),
and cases cited there. See also the cases cited above with re-
spect to paragraphs 1–3.
Paragraph 10. This provision, which discourages employees
from linking to Shamrock’s external website from personal
blogs, would restrict employees’ ability to identify or direct
others to the Company’s website in discussing company poli-
cies or terms and conditions of employment. Accordingly, it is
overbroad as well. Cf. UPMC, above.
Finally, the Company does not contend that any of the fore-
going paragraphs are saved by the general qualifiers or dis-
claimers set forth in paragraphs 5 and 11 regarding employees’
“right to express personal opinions” about “organizing” and
other “rights under Section 7 of the NLRA.” Indeed, neither
the General Counsel nor the Company even mention these pro-
visions in their posthearing briefs. In any event, Board prece-
dent indicates that they are insufficient to do so. See Solarcity
Corp., 363 NLRB No. 83, slip op. at 6 (2015), and cases cited
there. Accordingly, all seven paragraphs violate the Act as al-
leged.
9. Guideline to prohibited activities
The same section also includes a subsection entitled “Guide-
line to Prohibited Activities.” It states in relevant part:
The following behaviors are examples of previously stated or
additional actions to activities that are prohibited and consid-
ered improper use of the Internet, E-mail or voicemail sys-
tems provided by Shamrock. These examples are provided as
guidelines only and are not all-inclusive:
[1.] Sending or posting confidential material, trade secrets, or
proprietary information outside of the organization.
* * *
[13.] Refusing to cooperate with security investigations.
[14.] Sending or posting chain letters, solicitations, or adver-
tisements not related to business purposes or activities.
* * *
[16.] Sending or posting messages that disparage another or-
ganization.
* * *
Shamrock will not construe this policy nor apply it in a man-
ner that interferes with associates’ rights under Section 7 of
the NLRA. [GC Exh. 3, p. 62].
The General Counsel contends that this subsection is unlaw-
fully overbroad for essentially the same reasons as the previous
subsection discussed above. However, unlike that subsection,
this subsection indicates that it applies only to Company com-
puters and equipment. And, as previously discussed, there is no
evidence the employees have access them. Accordingly, this
SHAMROCK FOODS CO. 35
allegation is dismissed.85
10. Reporting violations
The same section also includes a subsection entitled “Report-
ing Violations,” which states:
Shamrock requests and urges associates to use official com-
pany communications to report violations of Shamrock’s
blogging rules and guidelines, customers’ or associates’ com-
plaints about blog content, or perceived misconduct or possi-
ble unlawful activity related to blogging, including security
breaches, misappropriation or theft of proprietary business in-
formation, and trademark infringement. Associates can report
actual or perceived violations to supervisors, other managers,
or to Human Resources.
As a condition of employment and continued employment,
associates are required to sign an Electronic and Telephonic
Communications Acknowledgement Form. Applicants are
required to sign this form on acceptance of an employment of-
fer by Shamrock.
As discussed above, the Company’s blogging rule is unlaw-
fully overbroad, i.e., it would reasonably be read to prohibit or
restrict protected union or other concerted activities. Thus, as
indicated by the General Counsel, this provision effectively
solicits employees to report such protected activities to the
Company. Accordingly, it is unlawful. See Montgomery
Ward, 269 NLRB 598, 600 (1984) (employer’s no-distribution
rule directed employees to report conduct that it unlawfully
prohibited). See also Bill’s Electric, Inc., 350 NLRB 292, 306
(2007); and Dillon Cos., 340 NLRB 1260, 1267 (2003).
11. Guidelines to appropriate conduct
The handbook also contains a section entitled “Guidelines to
Appropriate Conduct.” It states in relevant part as follows:
Listed below are some of the rules and regulations of Sham-
rock. This list should not be viewed as all-inclusive. It is in-
tended only to illustrate the types of behavior and conduct
that Shamrock considers inappropriate and grounds for dis-
ciplinary action up to and including termination of employ-
ment without prior warning, at the sole discretion of the com-
pany, including, but not limited to, the following:
* * *
[2.] Theft and/or deliberate damage or destruction of property
not belonging to the associate, including the misuse or unau-
thorized use of any products, property, tools, equipment of
any person or the unauthorized use of any company-owned
equipment.
* * *
[6.] Any act that interferes with another associate’s right to be

85 As with the previous subsection, the Company does not contend
that this subsection is saved by the last sentence purporting to preserve
employees’ “rights under Section 7 of the NLRA.”
free from harassment or prevents an associate’s enjoyment of
work, including sexual or other harassment, wasting the asso-
ciate’s time, harming or placing the associate in harm’s way,
immoral or indecent conduct or conduct that creates a disturb-
ance in the workplace.
Shamrock will not construe this policy nor apply it in a man-
ner that interferes with associates’ rights under Section 7 of
the National Labor Relations Act. [GC Exh. 3, pp. 83–84.]
The General Counsel alleges that paragraph 2 above is un-
lawfully overbroad because employees “would reasonably un-
derstand it to encompass their use of [the Company’s] email
system or their engaging in conduct that [the Company] consid-
ered ‘misuse’ of that system,” including protected communica-
tions on nonworking time (Br. 84). However, as discussed
above, the employees do not have access to the Company’s
email system. Accordingly, this allegation is dismissed.
Unlike paragraph 2, paragraph 6 is not limited to use of the
Company’s computers or other equipment. Further, as indicat-
ed by the General Counsel, its broad prohibition on “any act”
that “prevents an associate’s enjoyment of work,” including
“conduct that creates a disturbance in the workplace” would
reasonably be understood to encompass protected union or
other concerted activities.86 See Ryder Transportation Ser-
vices, 341 NLRB 761 (2004) (“It is well settled that the Act
allows employees to engage in persistent union solicitation
even when it annoys or disturbs the employees who are being
solicited.”), enfd. 401 F.3d 815 (7th Cir. 2005). See also the
discussion and cases cited in section B.7 above. Finally, as
with other provisions, the Company does not contend that this
provision is saved by the last sentence of the section purporting
to preserve employees’ “rights under Section 7 of the
[NLRA].” Accordingly, the provision is unlawful.
12. No solicitation or distribution
The handbook also includes a section entitled “No Solicita-
tion, No Distribution,” which states:
Shamrock believes that the work time of our associates should
be devoted to their work-related activities, and that it is nei-
ther safe nor productive for our associates to be distracted by
individuals engaged in non-work related activities during
work time or in work areas. Thus, the conducting of non-
company business related activities is prohibited during the
working time by either the associate doing the soliciting or the
associate being solicited or at any time in customer or public
areas. Associates may not solicit other associates under any
circumstances for any non-company related activities.
The distribution of non-company literature, such as leaflets,
letters or other written materials by an associate is not permit-

86 The General Counsel’s posthearing brief also argues that the term
“harassment” would reasonably be interpreted by employees to include
protected conduct. However, Lutheran Heritage itself held to the con-
trary, 343 NLRB at 648–649, and the General Counsel cites no legal or
factual basis for distinguishing that case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
ted during the working time of either the associate doing the
distributing or the associate to whom the non-company litera-
ture is being distributed, or any time in working areas or in
customer and public areas.
It is important that we keep our associates informed on all
matters that involve them. Company bulletin boards/email is
our primary means for posting notices and other materials re-
lated to our associates and our business. In order to avoid any
confusion over what may or may not be posted on Shamrock
bulletin boards, and to avoid obscuring important business-
related materials with items which are of a personal nature,
Shamrock bulletin boards are to be used solely for the posting
of Shamrock business-related notices and materials. If you
would like to post any Shamrock business-related materials,
please see your Department Manager, the General Branch
Manager or the Human Resources Representative. Only these
Individuals are authorized to approve and post information on
Shamrock bulletin boards. [GC Exh. 3, p. 65.]
The first and second paragraphs of this section explicitly ban
soliciting or distributing in customer or public areas at any
time. Thus, as indicated by the General Counsel, they would
reasonably be construed to prohibit off-duty employees from
engaging in union solicitation or distribution in such areas,
including in parking lots and other public nonworking areas
between shifts. Accordingly, they are unlawful. See Times
Publishing Co., 231 NLRB 207 (1977), enfd. in relevant part
and remanded on other grounds 576 F.2d 1107 (5th Cir. 1978)
(employer’s rule prohibited solicitation and distribution in pub-
lic areas at any time); and Bankers Club, Inc., 218 NLRB 22,
27 (1975) (employer’s rule banned solicitation or distribution in
customer areas at any time), cited with approval in Purple
Communications, 362 NLRB No. 126, slip op. at 13. See also
Golub Corp., 338 NLRB 515 (2002); and Flamingo Hilton-
Laughlin, 330 NLRB 287, 288 (1999), and cases cited there.
The General Counsel contends that the first paragraph is also
overbroad because it bans, not just soliciting, but also “the con-
ducting of non-company business related activities” during
working time. The General Counsel argues that this language
“would reasonably be read to prohibit employees from discuss-
ing their working conditions or . . . the state of an organizing
campaign during working time, even though there is no re-
striction on other types of discussions at the facility.” (Br. 86.)
However, there are two problems with this argument. First,
both the title of the section and the remainder of the paragraph
indicate that the term “non-company business” refers to solicit-
ing. Second, the General Counsel cites no record evidence that
the Company actually permits discussions about personal mat-
ters other than working conditions and union organizing during
working time. Cf. Hertz Corp., 316 NLRB 672, 687 (1995)
(record evidence established that the employer had not enforced
any restrictions on what employees could say to each other in
working areas during working time). The argument therefore
fails.
The General Counsel also alleges that the third paragraph is
unlawful because it requires employees to seek approval before
posting any information at the facility, including in nonworking
areas, citing Brunswick Corp., 282 NLRB 794, 795 (1987).
However, Brunswick involved a no-solicitation rule, not a no-
posting rule. Unlike with solicitation/distribution, the law per-
mits an employer to prohibit employees from posting materials
anytime and anywhere in the facility as long as the employer
does not apply the ban in a discriminatory manner. Flamingo
Hilton, 330 NLRB 287, 293 (1999). See also St. Francis Medi-
cal Center, 347 NLRB 368, 370 (2006) (“The comparison be-
tween solicitation/distribution and posting is a comparison of
‘apples to oranges’.”). The General Counsel does not contend
or cite any record evidence that the Company has applied its
no-posting rule in a discriminatory manner. Accordingly, this
allegation is dismissed.
13. Cell phone use
Finally, the General Counsel also alleges that the
Company has unlawfully promulgated and maintained an over-
broad cell phone rule (Tr. 750, 844). The rule is set forth in a
January 2, 2015 memorandum that the Company posted entitled
“Head/Ear & Cell Phone Use.” The memo states:
In an effort to improve the workplace safety environment, en-
sure the safety of our associates and to maintain compliance
with State, Federal and regulatory agencies, the use of all mu-
sical devices to include, but not limited to cell phones and
head/ear phone use within the warehouse is being discontin-
ued effective January 4, 2015.
Beyond the impact of the individual noise level, personal mu-
sic devices create a potential hazard. They impair a worker’s
ability to hear surrounding sounds and compromise the user’s
general alertness and concentration; therefore they may be
considered a hazard within the workplace. This is especially
true if working around moving equipment or in circumstances
where a worker must be able to hear warning sounds.
An EMERGENCY phone line is in place should a family
member need to be contacted while at work and the message
will be relayed to you. This line is for emergency use ONLY.
[GC Exh. 27].
The General Counsel argues that the foregoing memo sets
forth a “a sweeping prohibition on the use of cell phones,”
which would reasonably be interpreted “to ban the use of cell
phones for any purpose whatsoever, including recording work-
ing conditions for any number of reasons protected under the
Act.” The General Counsel contends that it is therefore unlaw-
ful, citing Rio All-Suites Hotel, 362 NLRB No. 190, slip op. at
4 (employer’s rule banned use of cameras or any other type of
audio visual recording equipment unless authorized for busi-
ness purposes). (Br. 87.)
As indicated by the Company, however, the rule on its face
does not ban employees from carrying cell phones or using
them to take pictures or videos. Rather, it is clear from both the
rule and the accompanying explanation/justification in the
memo that the ban is limited to the use of cell phones for listen-
ing to music or making or receiving calls.87 Accordingly, this

87 Again, the General Counsel’s posthearing brief omits and entirely
ignores the second and third paragraphs of the memo.
SHAMROCK FOODS CO. 37
allegation is dismissed.
CONCLUSIONS OF LAW
1. The Respondent Company engaged in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act by:
(a) Threatening employees at a January 28, 2015 town hall
meeting that they would lose benefits if they supported a union.
(b) Soliciting employees’ complaints and grievances and
promising to remedy them at a January 28 roundtable meeting
if employees refrained from supporting a union.
(c) Soliciting employees’ complaints and grievances and
promising to remedy them at a February 5 communication
meeting if employees refrained from supporting a union.
(d) Telling employees at a February 24 union education
meeting to report to management if union supporters solicited
them to sign a union card.
(e) Promising or granting benefits to employees on April 29
by committing, both at a communication meeting and in writ-
ing, that employees would not be laid off, to discourage support
for a union.
(f) Threatening employees at the April 29 communication
meeting with unspecified reprisals if they supported a union.
(g) Informing employees at the April 29 communication
meeting that it would be futile for them to support a union.
2. The Company also engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act by:
(a) Interrogating an employee on January 28, 2015 about
whether he supported a union.
(b) Surveilling employees’ union activities on January 28.
(c Creating the impression of surveilling an employee’s un-
ion activities on April 27.
(d) Surveilling employees’ union activities on April 29.
(e ) Interrogating employees about their union activities on
April 29.
(f) Surveilling and creating the impression of surveilling an
employee’s union activities on May 1.
(g) Orally promulgating a discriminatory and overbroad rule
at a May 5 meeting with an employee that prohibited union
supporters from “heckling” or “insulting” employees or solicit-
ing in a manner “where somebody could perceive it as intimi-
dation” or “feel threatened or intimidated,” and threatening the
employee with reprisals if he violated the above rule.
(h) Promulgating a discriminatory and overbroad rule in a
May 8 letter to all employees that prohibited union supporters
from engaging in “unlawful bullying” or “unlawfully coercive
behavior,” requesting employees to report to management if the
rule was violated, and threatening to refer violations of the rule
to law enforcement for prosecution.
(i) Taking union flyers away from employees on May 25.
(j) Interrogating employees on May 25 about whether they
supported the union.
(k) Granting wage increases to employees on May 29 to dis-
courage support for the union.
3. The Company also engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act by:
(a) Maintaining an overbroad rule in its Associate Handbook
on “Protecting the Company’s Confidential Information” since
at least October 15, 2014 that designates as confidential any
“information, knowledge, or data” concerning “associates,”
“Company manuals and policies,” and “compensation sched-
ules.”
(b) Maintaining an overbroad rule in the handbook on
“Blogging” since the same date that:
1. Discourages employees from publicly discussing on the
internet “any work-related matters, whether confidential or
not.”
2. Requires employees to “protect” their coworkers’ “home
addresses” and “other personal information,” and the confiden-
tiality of accessible company “financial information” and “non-
public information.”
3. Prohibits employees from using blogs to “malign” or “dis-
parage” coworkers or managers.
4. Prohibits or requires company approval for employees to
use the company logo or trademarks, or post copyrighted in-
formation in documents containing its name, trademark, or
logo, on any personal blogs or other online sites.
5. Requires company permission to post on personal blogs
photos of company events, coworkers or company representa-
tives engaged in company business, or company products.
6. Discourages employees from linking to the Company’s
external website from personal blogs.
(c) Maintaining an overbroad rule in the handbook on “Re-
porting Violations” since the same date that solicits employees
to report any of the above prohibited blogging activities to the
Company.
(d) Maintaining an overbroad rule in the handbook on
“Guidelines to Appropriate Conduct” since the same date that
prohibits “any act” that “prevents an associate’s enjoyment of
work,” including “conduct that creates a disturbance in the
workplace.”
(e) Maintaining an overbroad rule in the handbook on “No
Solicitation, No Distribution” since the same date that bans
soliciting or distributing in customer or public areas at any
time.
(f) Offering a “Separation Agreement and Release and
Waiver” to an employee on April 6, 2015 that prohibited dis-
closing “confidential information,” including any “personnel or
corporate information,” and making remarks or taking actions
that are disparaging or detrimental to the Company, following
termination of employment.
4. The Company engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act by discharging Thomas Wallace
on April 6, 2015 because of his protected concerted and union
activities and to discourage employees from engaging in such
activities.
5. The Company engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(3) and (1) and
Section 2(6) and (7) of the Act by disciplining Mario Lerma on
May 5, 2015 because of his protected union activities and to
discourage employees from engaging in such activities.
6. The Company did not otherwise violate the Act as alleged
in the complaint.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD38
REMEDY
The appropriate remedy for the foregoing violations is an or-
der requiring the Company to cease and desist and to take cer-
tain affirmative action. Specifically, in the event Wallace has
not already been reinstated, the Company will be required to
offer him immediate and full reinstatement to his former posi-
tion.88 In addition, the Company will be required to make him
whole for any loss of earnings and other benefits as a result of
his unlawful termination. Backpay shall be computed in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed and compounded daily as prescribed in
New Horizons, 283 NLRB 1173 (1987), and Kentucky River
Medical Center, 356 NLRB 6 (2010).
As set forth in Don Chavas d/b/a Tortillas Don Chavas, 361
NLRB 110 (2014), the Company will also be required to com-
pensate Wallace for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and to file a report with
the Social Security Administration allocating the backpay
awards to the appropriate calendar quarters.89
In addition, the Company will be required to remove from its
files any reference to the unlawful termination of Wallace and
discipline of Lerma, and to notify them in writing that this has
been done and that the termination or discipline will not be
used against them in any way.
The Company will also be required to rescind, in writing, the
discriminatory and overbroad rule it orally promulgated at the
May 5 meeting with Lerma, the discriminatory and overbroad
rule set forth in its May 8 letter to all employees, and the over-
broad separation agreement it offered to Wallace on April 6.
The Company will likewise be required to rescind the over-
broad handbook rules, and furnish all current employees with
inserts for their current employee handbooks that (1) advise that
the unlawful rule has been rescinded, or (2) provide a lawfully
worded rule on adhesive backing that will cover the unlawful
rule; or publish and distribute to all current employees revised
employee handbooks that (1) do not contain the unlawful rule,
or (2) provide a lawfully worded rule.
In addition, the Company will be required to post a notice to
employees, in both English and Spanish, stating that it will not
continue to engage in the same or any like or related unlawful
conduct and that it will affirmatively remedy its unlawful con-
duct as ordered.
Given the severity and scope of the Company’s unfair labor
practices, and the fact that many of them were committed by
high-level officials and/or at large and small mandatory meet-
ings, the notice must also be read aloud to the employees. Spe-
cifically, President/CEO Kent McClelland or Operations VP

88 See, e.g., Kellogg Co., 362 NLRB No. 86, slip op. at 8 (2015). On
February 1, 2016, the U.S. District Court in Arizona (Humetewa, J.)
granted the General Counsel’s request for a temporary injunction under
Section 10(j) of the Act requiring the Company to offer Wallace rein-
statement pending a final decision by the Board. Overstreet v. Sham-
rock Foods Co., CV-15-01785-PHX-DJH.
89 The General Counsel also requests search-for-work expenses, i.e.
that the Company be required to reimburse Wallace for all expenses he
incurred searching for interim work. This remedy is denied as it would
involve a change in Board law. See Katch Kan USA LLC, 362 NLRB
No. 162, slip op. at 1 n. 2 (2015).
Engdahl, or, if the Company chooses, a Board agent in their
presence, must read the remedial notice aloud to all warehouse
employees at one or more mandatory meetings scheduled dur-
ing working time to ensure the widest possible attendance. A
Spanish-language interpreter must be present as well to trans-
late the reading for employees who are not fluent in both Eng-
lish and Spanish. See OS Transport LLC, 358 NLRB 1048,
1049 (2012), reaffd. 362 NLRB No. 34 (2015); and Homer D.
Bronson, 349 NLRB at 515, and cases cited there.
According, based on the above findings of fact and conclu-
sions of law and on the entire record, I issue the following rec-
ommended90
ORDER
The Respondent, Shamrock Foods Company, Phoenix, Ari-
zona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or disciplining employees because of their
protected concerted or union activities and to discourage em-
ployees from engaging in such activities.
(b) Threatening employees that they would lose benefits if
they supported a union.
(c) Soliciting employees’ complaints and grievances and
promising to remedy them if employees refrained from support-
ing a union.
(d) Promising or granting benefits to employees by commit-
ting that they would not be laid off to discourage support for a
union.
(e) Granting wage increases to employees to discourage sup-
port for the union.
(f) Telling employees to report to management if union sup-
porters solicited them to sign a union card.
(g) Threatening employees with unspecified reprisals if they
support a union.
(h) Informing employees that it would be futile for them to
support a union.
(i) Interrogating employees about whether they support a un-
ion.
(j) Surveilling employees’ union activities.
(k) Creating the impression of surveilling employees’ union
activities.
(l) Taking union flyers away from employees.
(m) Promulgating discriminatory or overbroad rules, either
orally or in writing, that restrict employees’ right to engaged in
protected union activities.
(n) Requesting employees to report to management if the
discriminatory or overbroad rules are violated.
(o) Threatening employees with discharge or other unspeci-
fied reprisals, and to refer the matter to law enforcement for
prosecution, if they violate the discriminatory or overbroad
rules.
(p) Maintaining overbroad rules in the Associate Handbook
that prohibit, restrict, or discourage employees from engaging

90 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
SHAMROCK FOODS CO. 39
in protected union and other concerted activities.
(q) Offering a “Separation Agreement and Release and
Waiver” to employees that includes provisions prohibiting em-
ployees from engaging in protected union and other concerted
activities following termination of employment.
(r) In any like or related manner interfering with, 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 effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Thomas Wallace full reinstatement to his former job or, if that
job no longer exists, to substantially equivalent positions, with-
out prejudice to his seniority or any other rights or privileges
previously enjoyed.
(b) Make Wallace whole for any loss of earnings and other
benefits suffered as a result of the discrimination against him,
in the manner set forth in the remedy section of the decision.
(c) Compensate Wallace for any adverse tax consequences of
receiving a lump-sum backpay award, and file a report with the
Social Security Administration allocating the backpay awards
to the appropriate calendar quarters.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days from the date of the Board’s Order, re-
move from the Company’s files any reference to the unlawful
April 6, 2015 termination of Wallace, and within 3 days there-
after notify him in writing that this has been done and that the
termination will not be used against him in any way.
(f) Within 14 days from the date of the Board’s Order, re-
move from the Company’s files any reference to the unlawful
May 5, 2015 discipline of Mario Lerma, and within 3 days
thereafter notify him in writing that this has been done and that
the discipline will not be used against him in any way.
(g) Within 14 days of the Board’s Order, rescind, in writing,
the discriminatory and overbroad rule it orally promulgated at
the May 5 meeting with Lerma that prohibited union supporters
from “heckling” or “insulting” employees or soliciting in a
manner “where somebody could perceive it as intimidation” or
“feel threatened or intimidated.”
(h) Within 14 days of the Board’s Order, rescind, in writing,
the discriminatory and overbroad rule set forth in the May 8
letter to all employees that prohibited union supporters from
engaging in “unlawful bullying” or “unlawfully coercive be-
havior.”
(i) Within 14 days of the Board’s Order, rescind, in writing,
the “Separation Agreement and Release and Waiver” that pro-
hibits employees from disclosing “confidential information,”
including any “personnel or corporate information,” and mak-
ing remarks or taking actions that are disparaging or detri-
mental to the Company, following termination of employment.
(j) Within 14 days of the Board’s Order, rescind its over-
broad handbook rule on “Protecting the Company’s Confiden-
tial Information” that designates as confidential any “infor-
mation, knowledge, or data” concerning “associates,” “Compa-
ny manuals and policies,” and “compensation schedules.”
(k) Within 14 days of the Board’s Order, rescind its over-
broad handbook rule on “Blogging” that: (1) discourages em-
ployees from publicly discussing on the internet “any work-
related matters, whether confidential or not”; (2) requires em-
ployees to “protect” their coworkers’ “home addresses” and
“other personal information,” and the confidentiality of acces-
sible company “financial information” and “nonpublic infor-
mation”; prohibits employees from using blogs to “malign” or
“disparage” coworkers or managers; (4) prohibits or requires
company approval for employees to use the company logo or
trademarks, or post copyrighted information in documents con-
taining its name, trademark, or logo, on any personal blogs or
other online sites; (5) requires company permission to post on
personal blogs photos of company events, coworkers or com-
pany representatives engaged in company business, or company
products; and (6) discourages employees from linking to the
Company’s external website from personal blogs.
(l) Within 14 days of the Board’s Order, rescind its over-
broad handbook rule on “Reporting Violations” that solicits
employees to report any of the above prohibited blogging activ-
ities to the Company.
(m) Within 14 days of the Board’s Order, rescind its over-
broad handbook rule on “Guidelines to Appropriate Conduct”
that prohibits “any act” that “prevents an associate’s enjoyment
of work,” including “conduct that creates a disturbance in the
workplace.”
(n) Within 14 days of the Board’s Order, rescind its over-
broad handbook rule on “No Solicitation, No Distribution” that
bans soliciting or distributing in customer or public areas at any
time.
(o) Furnish all current employees with inserts for their cur-
rent employee handbooks that (1) advise that the above unlaw-
ful rules have been rescinded, or (2) provide lawfully worded
rules on adhesive backing that will cover the unlawful rules; or
publish and distribute to all current employees revised employ-
ee handbooks that (1) do not contain the unlawful rules, or (2)
provide lawfully worded rules.
(p) Within 14 days after service by the Region, post at its
warehouse in Phoenix, Arizona copies of the attached notice
marked “Appendix”91 in both English and Spanish. Copies of
the notice, on forms provided by the Regional Director for Re-
gion 28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on

91 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD40
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 Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since October 15,
2014.
(q) Within 14 days after service by the Region, hold a meet-
ing or meetings, scheduled to ensure the widest possible attend-
ance, at which the attached notice is to be read to the warehouse
employees by the Respondent's President/CEO Kent McClel-
land or Operations Vice President Mark Engdahl, or, if the
Company chooses, a Board agent in their presence, with trans-
lation available for Spanish-speaking employees.
(r) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., February 11, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge, discipline or otherwise discriminate
against any of you for supporting Bakery, Confectionary, To-
bacco Workers’ and Grain Millers International Union, Local
Union No. 232, AFL–CIO–CLC, or any other union.
WE WILL NOT threaten you with loss of benefits if you sup-
port a union.
WE WILL NOT solicit your complaints and grievances and
promise to remedy them if you refrain from supporting a union.
WE WILL NOT promise or grant benefits to discourage you
from supporting a union.
WE WILL NOT grant wage increases to discourage you from
supporting a union.
WE WILL NOT ask or tell you to report if union supporters so-
licit you to sign a union card.
WE WILL NOT threaten you with unspecified reprisals if you
support a union.
WE WILL NOT inform you that it would be futile for you to
support a union.
WE WILL NOT coercively question you about your union sup-
port or activities.
WE WILL NOT watch or monitor you in order to find out about
your union activities, or create the impression that we are doing
so.
WE WILL NOT take union flyers away from you.
WE WILL NOT impose discriminatory or overbroad rules, ei-
ther orally or in writing, that restrict your right to engage in
protected union activities, request that you report if such rules
are violated, or threaten to discharge or take unspecified repris-
als against you, or to refer the matter to law enforcement for
prosecution, if you violate the rules.
WE WILL NOT maintain overbroad rules in the Associate
Handbook that prohibit, restrict, or discourage you from engag-
ing in protected union and other concerted activities.
WE WILL NOT offer you a “Separation Agreement and Re-
lease and Waiver” that prohibits you from engaging in protect-
ed union and other concerted activities following termination of
your employment.
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the National Labor Relations
Act.
WE WILL, within 14 days from the Board’s Order, offer
Thomas Wallace 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 privi-
leges previously enjoyed.
WE WILL make Wallace whole for any loss of earnings and
other benefits resulting from his unlawful discharge, less any
net interim earnings, plus interest compounded daily.
WE WILL compensate Wallace for the adverse tax conse-
quences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year.
WE WILL file a report with the Social Security Administration
allocating Wallace’s backpay to the appropriate calendar quar-
ters.
WE WILL, within 14 days from the Board’s Order, remove
from our files any reference to the unlawful April 6, 2015 dis-
charge of Wallace, and WE WILL, within 3 days thereafter, noti-
fy 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 from the Board’s Order, remove
from our files any reference to the unlawful May 5, 2015 disci-
pline of Mario Lerma, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the disci-
pline will not be used against him in any way.
WE WILL, within 14 days from the Board’s Order, rescind the
“Separation Agreement and Release and Waiver” we offered to
Wallace that prohibits disclosing “confidential information,”
including any “personnel or corporate information,” and mak-
ing remarks or taking actions that are disparaging or detri-
mental to the Company, following termination of employment.
WE WILL, within 14 days from the Board’s Order, rescind, in
writing, the discriminatory and overbroad rule we orally prom-
ulgated at our May 5 meeting with Lerma that prohibited union
SHAMROCK FOODS CO. 41
supporters from “heckling” or “insulting” employees or solicit-
ing in a manner “where somebody could perceive it as intimi-
dation” or “feel threatened or intimidated.”
WE WILL, within 14 days from the Board’s Order, rescind, in
writing, the discriminatory and overbroad rule set forth in our
May 8 letter to all employees that prohibited union supporters
from engaging in “unlawful bullying” or “unlawfully coercive
behavior.”
WE WILL, within 14 days from the Board’s Order, rescind the
overbroad handbook rule on “Protecting the Company’s Confi-
dential Information” that designates as confidential any “infor-
mation, knowledge, or data” concerning “associates,” “Compa-
ny manuals and policies,” and “compensation schedules.”
WE WILL, within 14 days from the Board’s Order, rescind the
overbroad handbook rule on “Blogging” that: (1) discourages
you from publicly discussing on the internet “any work-related
matters, whether confidential or not”; (2) requires you to “pro-
tect” your coworkers’ “home addresses” and “other personal
information,” and the confidentiality of accessible company
“financial information” and “nonpublic information”; prohibits
you from using blogs to “malign” or “disparage” coworkers or
managers; (4) prohibits or requires company approval for you
to use the company logo or trademarks, or post copyrighted
information in documents containing the company name,
trademark, or logo, on any personal blogs or other online sites;
(5) requires company permission for you to post on personal
blogs photos of company events, coworkers or company repre-
sentatives engaged in company business, or company products;
and (6) discourages you from linking to the Company’s exter-
nal website from personal blogs.
WE WILL, within 14 days from the Board’s Order, rescind the
overbroad handbook rule on “Reporting Violations” that solic-
its you to report any of the above prohibited blogging activities
to the Company.
WE WILL, within 14 days from the Board’s Order, rescind the
overbroad handbook rule on “Guidelines to Appropriate Con-
duct” that prohibits you from engaging in “any act” that “pre-
vents an associate’s enjoyment of work,” including “conduct
that creates a disturbance in the workplace.”
WE WILL, within 14 days from the Board’s Order, rescind the
overbroad handbook rule on “No Solicitation, No Distribution”
that prohibits you from soliciting or distributing in customer or
public areas at any time.
WE WILL furnish you with inserts for your current associate
handbooks that (1) advise that the above unlawful rules have
been rescinded, or (2) provide lawfully worded rules on adhe-
sive backing that will cover the unlawful rules; or publish and
distribute to you revised associate handbooks that (1) do not
contain the unlawful rules, or (2) provide lawfully worded
rules.
SHAMROCK FOOD CO.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-150157 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.