Shamrock Foods Company

National Labor Relations Board - Board Decisions

Jun 22, 2018

366 NLRB No. 107 (N.L.R.B. 2018)

366 NLRB No. 107
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–169970
June 22, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND KAPLAN
On September 28, 2016, Administrative Law Judge
Amita Baman Tracy issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply brief. In addition, the General
Counsel filed cross-exceptions with supporting argu-
ment, the Respondent filed an answering brief, and the
General Counsel filed a reply brief. The Charging Party
filed separate cross-exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We agree with the judge’s findings that the Respondent violated Sec.
8(a)(3) and (1) by: (i) subjecting its employees to stricter enforcement
of its previously unenforced break schedule; (ii) subjecting Steve
Phipps to closer supervision; (iii) counseling Steve Phipps; and (iv)
issuing a verbal warning to Michael Meraz. The judge correctly found
that the General Counsel demonstrated, under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), that the Respondent’s animus toward Phipps’ and Meraz’
protected union activity was a motivating factor in its decision to take
these actions, and that the Respondent failed to show that it would have
taken these actions in the absence of their protected activity. In addi-
tion to evidence of animus discussed in the judge’s decision, we rely on
the substantial background evidence of animus demonstrated by the
Respondent’s numerous violations of Sec. 8(a)(3) and (1) found in
Shamrock Foods Co., 366 NLRB No. 117, issued this same day.
We note, however, that the General Counsel’s burden under Wright
Line requires him to establish three elements, not four as set forth in the
“Legal Standards” section of the judge’s decision. The showing re-
quired is that (1) the employee engaged in protected activity, (2) the
employer had knowledge of the protected activity, and (3) the employer
bore animus toward the activity. See, e.g., Advanced Masonry Associ-
ates, LLC d/b/a Advanced Masonry Systems, 366 NLRB No. 57, slip
op. at 4 fn.8 (2018); Libertyville Toyota, 360 NLRB 1298, 1301 fn. 10
(2014), enfd. 801 F.3d 767 (7th Cir. 2015).
to adopt the recommended Order as modified and set
forth in full below.2
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) More strictly enforcing its break schedule because
of employees’ support for and activities on behalf of the
Bakery, Confectionery, Tobacco Workers’ and Grain
Millers International Union, Local Union No. 232, AFL–
CIO–CLC (Union).
(b) Subjecting employees to closer supervision be-
cause of their support for and activities on behalf of the
Union.
(c) Counseling employees because of their support for
and activities on behalf of the Union.
(d) Issuing employees verbal warnings because of their
support for and activities on behalf of the Union.
(e) 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, remove
from its files any reference to the unlawful counseling of
Steve Phipps and verbal warning of Michael Meraz, and

With respect to the Respondent’s discipline of Meraz, we agree for
the reasons stated by the judge that the Respondent harbored animus
toward Meraz’ protected union activity. In particular, we note that the
Respondent’s animus is demonstrated by its disparate treatment of
Meraz. As explained by the judge, the Respondent’s witnesses’ testified
that other employees made mistakes similar to Meraz’ misplacement of
merchandise, but they could not provide any examples of such disci-
pline. The Respondent’s disparate treatment of Meraz, therefore, “sup-
ports an inference that animus against [his protected] activity was a
motivating factor in his [discipline].” Camaco Lorain Mfg. Plant, 356
NLRB 1182, 1185 (2011).
With respect to the Respondent’s discipline of Phipps, Member
Kaplan affirms the judge’s finding of animus but does not rely on Op-
erations Manager O’Meara’s letter to employees stating that the Un-
ion’s failure to obtain a showing of interest to petition for an election
was a “pretty strong statement” as evidence of animus.
Having adopted the judge’s finding that the above-mentioned con-
duct violated Sec. 8(a)(3), we find it unnecessary to pass on the judge’s
additional findings that the same conduct violated Sec. 8(a)(4), because
the remedy for such violations would be essentially the same. See
generally United Parcel Service, 327 NLRB 317, 317 fn. 4 (1998).
2 The Charging Party has requested numerous additional remedies
for the violations found. We deny this request because the Charging
Party has not demonstrated that the Board’s traditional remedies are
insufficient to ameliorate the effects of the Respondent’s unfair labor
practices. Fallbrook Hospital, 360 NLRB 644, 644 fn. 3 (2014), enfd.
785 F.3d 729 (D.C. Cir. 2015). We shall, however, modify the judge’s
recommended Order and substitute a new notice to conform to the
Board’s standard remedial language.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
within 3 days thereafter, notify the employees in writing
that this has been done and that the discipline will not be
used against them in any way.
(b) Within 14 days after service by the Region, post at
its Phoenix, Arizona facility copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since January 24, 2016.
(c) 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.
Dated, Washington, D.C. June 22, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

3 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.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist 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 more strictly enforce our break schedule
because of your support for and activities on behalf of
the Bakery, Confectionery, Tobacco Workers’ and Grain
Millers International Union, Local Union No. 232, AFL–
CIO–CLC (Union).
WE WILL NOT subject you to closer supervision be-
cause of your support for and activities on behalf of the
Union.
WE WILL NOT counsel you because of your support for
and activities on behalf of the Union.
WE WILL NOT issue you verbal warnings because of
your support for and activities on behalf of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful counseling of Steve Phipps and verbal warning of
Michael Meraz, and WE WILL within 3 days thereafter,
notify each of them in writing that this has been done and
that the discipline will not be used against them in any
way.
SHAMROCK FOODS COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/28–CA–169970 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
SHAMROCK FOODS CO. 3
Sara S. Demirok, Esq., for the General Counsel.
Todd A. Dawson, Esq. and Nancy Inesta, Esq., for the Re-
spondent.
David A. Rosenfeld, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case
was tried in Phoenix, Arizona, from May 24–27, 2016, and on
June 9, 2016. 1 Bakery, Confectionery, Tobacco Workers’ and
Grain Millers International Union, Local Union No. 232, AFL–
CIO–CLC (Charging Party or Union) filed the charge on Feb-
ruary 18. The General Counsel issued the complaint on March
30, and consolidated complaint on April 25.2 Shamrock Foods
Company (Respondent or Employer) filed timely answers to
the complaint and consolidated complaint.
The complaint and amended complaint alleges that Respond-
ent violated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act (the Act) (1) when on January 24, it subjected its
employees including Steve Phipps (Phipps) to stricter enforce-
ment of its previously unenforced break schedule; (2) when on
January 26 and February 11, it subjected Phipps to closer su-
pervision; (3) when on February 1, it issued a verbal warning to
Michael Meraz (Meraz); and (4) when on February 11, it ver-
bally disciplined Phipps. The General Counsel further alleges
that Respondent violated Section 8(a)(4) and (1) for these same
actions because Phipps and Meraz gave testimony to the Na-
tional Labor Relations Board (the Board) in the form of affida-
vits and/or testified at a Board hearing in case 28–CA–150157.
As discussed below, I find that Respondent violated the Act
as alleged.
On the entire record,3 including my observation of the de-

1 All dates are 2016 unless otherwise indicated.
2 At the hearing, the General Counsel moved to withdraw complaint
pars. 5(a) through (c), and 6(a) through (c), and 6(g) (Tr. 251). I grant-
ed the motion and severed case 28–CA–167910, and remanded those
allegations to the Region 28 Regional Director (Tr. 252, 754). At the
hearing, the General Counsel also initially sought to amend the com-
plaint but then essentially withdrew the request (Tr. 252–254). In addi-
tion, a ruling on Respondent’s motion to dismiss relating to some of the
aforementioned complaint paragraphs is moot (GC Exh. 1(n)).
3 Although I have included citations to the record to highlight par-
ticular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations but rather on my review and
consideration of the entire record for this case. Furthermore, the tran-
scripts in this case are generally accurate, but I make the following
corrections to the record: “Tr.” for transcript; “L.” for line: Tr. 50, L. 5:
“air raid” should be “error rate”; Tr. 95, L. 22: the speaker is Ms. Demi-
rok, not Ms. Inesta; Tr. 123, L. 20: “can” should be “scan”; Tr. 126–
127, L. 25–L. 1: “this service” should be “disservice”; Tr. 138, L. 3: the
meanor of the witnesses,4 and after considering the briefs filed
by the General Counsel and Respondent,5 I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent, an Arizona corporation, maintains an office and
place of business in Phoenix, Arizona, from which it is engaged
in the wholesale distribution of food products. During the 12-
month period ending February 18, Respondent purchased and
received at its facility goods valued in excess of $50,000 direct-
ly from points outside the State of Arizona. Accordingly, I find
that Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Further, Respondent admits, and I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Organization
Respondent employs approximately 800 employees in a
Phoenix warehouse (Tr. 418–419).6 These employees include
order selectors, loaders, forklift operators, sanitation, inventory
control, and runners.
Respondent admits that the following individuals are super-
visors within the meaning of Section 2(11) of the Act and
agents within the meaning of Section 2(13) of the Act: Daniel
Santamaria (Santamaria), human resources business partner;
Richard Gomez (Gomez), David Garcia (Garcia), and Johnny
Banda (Banda), inbound warehouse supervisors; Brian Nicklin
(Nicklin), inbound warehouse manager; Ivan Vaivao (Vaivao),

speaker is not Ms. Demirok, but is Ms. Inesta or Mr. Dawson; Tr. 145,
L. 17: “imitated” should be “initiated”; Tr. 164, L. 7–8: “June 6” should
be “GC”; Tr. 256, L. 21: the speaker is Judge Tracy, not “the witness”;
Tr. 311, L. 8: the speaker after the number “22” should be Judge Tracy,
not Ms. Demirok; Tr. 341, L. 2: “Santa-Marina” should be “Santama-
ria”; Tr. 664, L. 20: “884” should be “8(a)(4)” and “883” should be
“8(a)(3)”; Tr. 670, L. 1” 884” should be “8(a)(4)”; Tr. 724, L. 21: “can-
celing” should be “counseling”; Tr. 727, L. 11: “two” should be “you.”
In addition, throughout the record the term “pallet” is misspelled as
“palette.”
4 I further note that my findings of fact encompass the credible tes-
timony and evidence presented at trial, as well as logical inferences
drawn therefrom. A credibility determination may rely on a variety of
factors, including the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or admit-
ted facts, inherent probabilities and reasonable inferences that may be
drawn from the record as a whole. Double D Construction Group, 339
NLRB 303, 305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001)
(citing Shen Automotive Dealership Group, 321 NLRB 586, 589
(1996)), enfd. 56 Fed.Appx. 516 (D.C. Cir. 2003). Credibility findings
need not be all-or-nothing propositions—indeed nothing is more com-
mon in all kinds of judicial decisions than to believe some, but not all,
of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. I have
carefully considered the testimony in contradiction to my factual find-
ings, but I have discredited such testimony.
5 The Charging Party joined the General Counsel’s brief. Other ab-
breviations used in this decision are as follows: “GC Exh.” for General
Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “GC Br.” for the
General Counsel’s brief; and “R. Br.” for the Respondent’s brief.
6 Respondent refers to its employees as associates (Tr. 104). In this
decision, I use the statutory term “employee.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
warehouse manager; Tim O’Meara (O’Meara), operations man-
ager, and Mark Engdahl (Engdahl), vice-president of opera-
tions. Gomez, Garcia, and Banda, whose supervisor is Nicklin,
directly supervise the receivers and forklift operators including
Phipps and Meraz (Tr. 336, 661–662). Nicklin reports to
Vaivao, who reports to O’Meara. O’Meara transitioned to the
Phoenix warehouse from an Albuquerque warehouse operated
by Respondent in December 2015, and formally began on Jan-
uary 1 (Tr. 667, 783). Finally, O’Meara reports to Engdahl (Tr.
95).
At all relevant times, Respondent utilized a progressive dis-
cipline policy at the Phoenix warehouse (Tr. 29). Respondent’s
Associate Handbook lists the progressive discipline steps as
follows: Step 1 Counseling, Step 2 Verbal Warning, Step 3
Written Warning, Step 4 Final Warning/3-Day Suspension, and
Step 5 Termination (GC Exh. 2).7 However, discipline may
start at any level. When an employee is issued a verbal warn-
ing on a constructive performance discussion record (CPDR or
C.P.D.R.), he is given 7 weeks to remain error free of the same
violation. If the 7 weeks pass without the same violation, then
the verbal warning “falls off” and future disciplinary matters
begin at the first step of progressive discipline, rather than pro-
ceeding to the subsequent step in progressive discipline (Tr.
32). If during the 7 weeks, the employee commits the same
category of violation, then Respondent issues the next step of
the discipline (Tr. 31–33).
B. Respondent’s Operations
On January 24, due to a variety of business reasons, Re-
spondent divided operations at the Phoenix warehouse by in-
bound (receiving) and outbound (shipping) teams (Tr. 42–44,
158, 227; R. Exh. 9).8 In anticipation of the change in opera-
tions, beginning on Monday, January 4, the employees “rebid”
or submitted bids for their shifts (R. Exh. 10; Tr. 229). Leading
up to the January 24 change in operations, Respondent’s man-
agers and supervisors held several meetings to discuss the
schedule change and the rebidding process (Tr. 446).
In inbound (receiving) work, warehouse employees receive
products from vendors delivered by truck drivers. Third-party
individuals unload products from the trucks and break down the
pallets (Tr. 138). Receivers verify the accuracy, quality and
quantity of products received (Tr. 138). Thereafter, the receiv-
er creates a 20-digit license plate number (LPN) for each prod-
uct which is then placed on a pallet to be put away (Tr. 138–
139). Forklift operators (put away forklift operators) then scan
each product, location and level and put away products in des-
ignated locations including reserve slots within the warehouse

7 Contrary to the terms in the employee handbook, O’Meara and
Vaivao testified that although counseling is the first step of discipline in
the disciplinary policy, they both begin any disciplinary penalty at a
verbal warning on a CPDR (Tr. 783–784, 811, 816). Furthermore,
O’Meara and Vaivao admitted that the first step for discipline is actual-
ly counseling which they learned when testifying as Federal Rules of
Evidence 611(c) witnesses (Tr. 783, 811).
8 Previously, from February 8, 2015 through January 24, Respond-
ent operated on a 24-hour basis, with three shifts per day (Tr. 221). All
forklift operators reported to Nicklin (Tr. 157, 224). The forklift opera-
tors and receivers took their breaks all together (Tr. 224).
(Tr. 138, 451, 456, 499, 555–556); this process is part of the
“put away” procedures (Tr. 453). These designated locations
are not specific and precise for each product but are rather cer-
tain areas within the warehouse (Tr. 455–456). Forklift opera-
tors may also replenish products for the order selectors (Tr.
452).
When performing their duties, inbound forklift operators use
an electronic system to determine which pallet of product needs
to fill an empty pick slot (Tr. 52). Thereafter, the forklift op-
erator scans the label on the product and then scans the loca-
tion, such as a reserve slot, where the pallet is being moved (Tr.
143). The computer system asks again to confirm the location,
and the pallet is rescanned (Tr. 141–143).
In outbound (shipping) work, warehouse employees ship
products to customers. Forklift operators (replenishment fork-
lift operators) move products from reserve slot to a pick slot
(Tr. 452–454). Pickers (order selectors) select cases based on
work orders, label the products and move the products from the
pick slot to the conveyer belts or to a cart to cross docking, and
then loaders move the product to the trucks (Tr. 99–101, 175;
R. Exh. 6). If there is a full pallet pull, the picker is bypassed by
the forklift operator who pulls the pallet and moves it to the
loading dock (Tr. 371, 454).
If a product cannot be found, a forklift operator will call in-
ventory control on his radio to find the product (Tr. 454).
When a pallet of product becomes missing, an inventory con-
trol clerk is tasked with trying to find the missing pallet (Tr.
66–67, 562).
If a case of product is not delivered to a customer, it is de-
fined as a “short” or “out” error (Tr. 38, 345, 363, 476).9 These
errors can affect the employees’ pay as well (Tr. 117, 203). A
mispick occurs when a picker selects and sends to a customer a
product that he did not order (Tr. 38).
C. Recent Litigation History
This case arises out of the latest union organizing campaign
at the Phoenix warehouse.10 Subsequently, the Union filed
numerous unfair labor practice charges against Respondent.
From September 8 through 16, 2015, Administrative Law
Judge Jeffrey Wedekind presided over an unfair labor practice
hearing, and on February 11, issued a decision finding that
Respondent committed 20 violations of the Act during the
course of the Union’s organizing campaign, including unlaw-
fully discharging and disciplining employees (Tr. 771–772).

9 Various types of shorts to customers can occur. Examples include
a warehouse short when a vendor does not provide the item to the Em-
ployer who must subsequently short the customer. The customer then
has the option of taking a reduced number of items or substituting the
missing item with another item (Tr. 111–113, 345–346). A trans short
or inventory control short occurs when a customer orders an item, a
picker selects the item and confirms that the warehouse has the item,
but the customer does not receive the product (Tr. 114–116).
10 Previously, the Teamsters attempted to organize Respondent’s
employees in the Phoenix warehouse. At that time, the Board deter-
mined that Respondent committed several violations of the Act. See
Shamrock Foods Co., 337 NLRB 915 (2002), enfd. 346 F.3d 1130
(D.C. Cir. 2003). The Teamsters organizing campaign was unsuccess-
ful.
SHAMROCK FOODS CO. 5
Shamrock Foods Co., JD(SF)-05–16, 2016 WL 555903 (Feb.
11, 2016). The parties filed exceptions and cross-exceptions to
Judge Wedekind’s decision, and thus, the decision is not final.
Simultaneously, on September 8, 2015, the General Counsel
filed an action seeking relief pursuant to Section 10(j) of the
Act in the United States District Court for the District of Arizo-
na, which was granted on February 1 (Tr. 771). Overstreet v.
Shamrock Foods Co., CV-15-01785-PHX-DJH. In support of
the petition, the General Counsel filed affidavits from Meraz,
dated June 17, 2015, and from Phipps, dated May 21, 2015,
May 28, 2015, and August 31, 2015 (Tr. 508, 700–703, 771; R.
Exh. 15).11
Thereafter, on June 10, Administrative Law Judge Keltner
Locke issued a decision dismissing a complaint because the
credited evidence failed to establish that Respondent knew
about union activities or the existence of antiunion animus.
Shamrock Foods Co., 2016 WL 3213011 (June 10, 2016).
Again, the decision is not final as the parties filed exceptions
and cross-exceptions.
Judge Wedekind and Judge Locke’s decisions, which are
pending before the Board on exceptions, are not binding au-
thority on me. See Long Ridge of Stamford, 362 NLRB No. 33,
slip op. at 1 fn. 3 (2015), citing St. Vincent Medical Center, 338
NLRB 888 (2003). These decisions cannot be used to support a
showing of antiunion animus or lack thereof.
D. The Union Organizing Campaign
Phipps began organizing the Union in the Phoenix ware-
house in late 2014 (Tr. 662–663).12 As he had throughout most
of 2015, Phipps continued to pass out Union flyers in February
and April, as well as talking about the Union to his colleagues
during breaks (Tr. 664–665). Throughout 2015, Phipps passed
out union flyers and met with employees during the breaks
(adjusting his break times as needed) (Tr. 663–664). Recently,
Phipps and Meraz passed out a December 2015 flyer which
indicated that there was a change in upper management, and
that although Respondent changed the warehouse manager,
Respondent had not changed its antiunion fundamental policies
(Tr. 666; GC Exh. 19). Also in December 2015, Phipps and
others protested outside the Phoenix warehouse (GC Exh. 24).
From February 9 through 11, Phipps passed out a union flyer
highlighting the District Court’s decision to grant the Board’s
request for 10(j) relief (Tr. 673–674; GC Exh. 9). Phipps testi-
fied during the September 2015 trial, and his affidavits were
used to support the Board’s request for injunctive relief. Phipps
also attended the January 6 oral arguments for the 10(j) injunc-
tion (Tr. 703, 771).
Meraz learned about the union organizing campaign in No-
vember 2014 from Phipps, and became actively involved in the
union campaign in April 2015 when he signed an authorization
card (Tr. 501, 504). Like Phipps, Meraz passed out union fly-
ers throughout most of 2015 and discussed the benefits of union

11 Some, if not all, these affidavits formed a part of the investigation
in case 28–CA–150157.
12 As background, in April 2015, Phipps announced to his coworkers
and supervisors during the lunchbreak that he was on the union organ-
izing committee, and would answer any questions (Tr. 663).
representation (Tr. 506, 513, 516–517, 568; GC Exh. 19). Alt-
hough Meraz did not testify in the September 2015 trial, he
attended the trial for 2 days (Tr. 508). In addition, his affidavit
was used as a supporting document for the Board’s request for
injunctive relief.
As for Respondent’s knowledge of union activity, Santama-
ria, Vaivao, and Nicklin admitted to being aware of the union
organizing campaign and that some employees were interested
in being represented by the Union at the warehouse (Tr. 25,
104, 436). Vaivao testified that employees approached him,
complaining that union organizers were “harassing” the em-
ployees, and asked, “hey, how can you make it stop, how can
you tell these guys to stop” (Tr. 104–105). Since at least April
2015, Vaivao also admitted that he knew Phipps was involved
in Union activities (Tr. 105, 107, 151). Vaivao knew that
Phipps along with other employees handed out flyers promot-
ing the Union (Tr. 108–109, 167–168). Gomez also seemed
generally aware through “hearsay” that Phipps was organizing
on behalf of the Union but he denied knowing that Meraz was
involved (Tr. 388–389, 858). Vaivao admitted that he knew
Meraz favored the Union after the unfair labor practice hearing
in September 2015 as well as knowing that Meraz had written a
statement for the Board (Tr. 804, 813).
In addition, Vaivao admitted to being aware in September
2015 that the General Counsel made a request for Section 10(j)
relief under the Act, and that the request was granted in Febru-
ary (Tr. 186, 190).13 Vaivao’s knowledge came from the post-
ing Respondent was ordered to place in the warehouse (Tr.
190).
E. January 24: Employees’ Breaks
Respondent always provides a meal break and two 15-
minute breaks to its warehouse employees (Tr. 90). Since the
January warehouse reorganization, Respondent requires em-
ployees on the inbound and outbound teams to take their breaks
with their teams (Tr. 215–216, 231, 273, 279–280, 785). In
fact, for years, Respondent has scheduled breaks for employees,
and these break times rarely varied, but could fluctuate based
upon the decision of a supervisor (Tr. 103, 276, 303, 327, 445,
789, 808–809, 827–828). Generally, employees should take
their breaks at the same time (Tr. 157). Employees commonly
know the break times for each shift, and tickers and electronic
message boards announce break start and end times (Tr. 102,
159, 272).
However, since the January warehouse reorganization, Re-
spondent began posting and enforcing the schedules for breaks
for each shift for the employees (Tr. 156, 158, 389–390; R.
Exh. 8; GC Exh. 11(a) and 11(b)). Also Respondent began

13 Incredulously, O’Meara denied being aware of the district court
injunction, and denied reading the notice posting required by the dis-
trict court order (Tr. 420–421). I did not find O’Meara to be a credible
witness. O’Meara testified in a defensive manner, and denied
knowledge of adversarial matters affecting the Phoenix warehouse (Tr.
421). As the newly appointed Phoenix operations manager, one would
expect O’Meara to have more knowledge than knowing “some things
are going on” of the legal matters affecting his warehouse. In response
to whether he has seen any union flyers, O’Meara cavalierly responded
that he has seen “stuff that’s been thrown in the break room” (Tr. 421).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
posting the breaks on the weekly schedule (GC Exh. 12; Tr.
157–158, 270).
On January 24, at the beginning of the new shift schedules,
Banda met with Phipps and two other inbound forklift operators
(Tr. 676–677, 718, 778). Banda told them that breaks and
lunch times were now posted, and needed to be taken at sched-
uled times (Tr. 676, 779). Phipps told Banda that it was a
change in policy to postbreaks on the schedule and to enforce
that employees take breaks during the scheduled times (Tr.
676). Phipps testified that Banda replied that there was a
change in policy enforcement (Tr. 676).14 The meeting lasted
only a few minutes (Tr. 780).
With regard to enforcing the break rules, Phipps credibly tes-
tified that prior to the January reorganization, “[W]e are al-
lowed to take those as long as we didn’t exceed the timeframes
pretty much wherever we wanted to as long as it didn’t interfere
with what was going on the floor. And everybody was very
careful about that. So I would just wait, for example, instead of
taking my second break at 1 p.m., I would take it at 1:20 or
1:30 p.m. when the other crews went to lunch.” (Tr. 665, 693,
716.) Phipps altered his break schedule so he could distribute
union flyers and talk to employees on other breaktimes. Phipps
described how he would begin the week by taking his breaks as
designated but as the week progressed would alter the times of
his breaks so he could speak to the employees who took breaks
during other times (Tr. 664–665). Phipps testified that in Janu-
ary with the new schedules and shifts, Respondent began en-
forcing the break schedule for all inbound forklift operators (Tr.
716–717).15
Current forklift operator Matt Sheffer (Sheffer) testified that
break times have been designated for the many years he has
worked at the Phoenix warehouse (Tr. 650–651).16 But Sheffer
explained that prior to January, he had always had flexibility of
when to take his breaks depending on the urgency of his work-
load (Tr. 652). In January, Banda and Gomez told Sheffer that
he must take his breaks during designated times (Tr. 652).
However, prior to January, Sheffer testified that there was no
discussion of breaktimes, and that he had never been disci-
plined for taking his breaks during nondesignated times (Tr.
652).17

14 Banda denied telling Phipps that there would be a change in en-
forcement of the break policy (Tr. 779). I credit Phipps’ version of this
conversation as Banda’s statement contradicts Respondent’s actions
subsequent to the organization change where the break policy was
communicated in writing on the schedules and where Respondent en-
forced the policy that breaks should be taken by employees at the times
designated. Furthermore, Sheffer also confirmed that Respondent told
him that he must take his breaks during the designated time periods.
15 I credit Phipps’ testimony regarding the enforcement of the break
policy as it was corroborated by the testimony of current employee
Matt Sheffer, who I found credible and sincere.
16 Sheffer was a supervisor for 18 years before he voluntarily
stepped down and has been an inbound forklift operator for the past 4
years (Tr. 833).
17 I found Sheffer to be a highly credible witness. Sheffer has no
obvious interest in this proceeding. Furthermore, Sheffer’s prior expe-
rience as a supervisor for many years at Respondent further bolsters his
testimony. Finally, as a current employee who testifies in a manner
which contradicts statements by his supervisors, Sheffer’s testimony
F. January 26 and February 11: Respondent’s closer supervi-
sion and discipline of Phipps
On January 26, Phipps took his lunchbreak at 11:15 a.m. ra-
ther than 11 a.m. due to workload issues (Tr. 677–678). There-
after, Gomez sent an email with the subject line of
“Break/Lunch” to Vaivao and other supervisors and managers
(GC Exh. 16). Gomez wrote, “Inbound 1st shift lunch is
11:00–11:30. Walking by the upstairs break room I noticed
Steve Phipps & [receiver] Roy Aja in there at 11:40am.”
Gomez continued, “I went in and told them individually it was
time to get back. Roy told me he went up late cause he was
receiving specialty. I told him let’s stick to the assigned times
and we may have to stop receiving a truck for lunch. Steve told
me he was helping shipping and was getting bulk. I told him
lets stick to the assigned times. He said shall I just drop every-
thing. I told him communicate with the shipping dock captain
that he would be gone for 30min if situation arises again” (GC
Exh. 16; Tr. 679). Gomez testified that he sent the email to all
supervisors to communicate the information conveyed due to
the recent reorganization of the warehouse (Tr. 390–393,
397).18 Vaivao and Nicklin testified similarly (Tr. 306–307,
463–465).19
On February 11, Nicklin and Gomez saw Phipps on the re-
ceiving dock around break time (Tr. 153, 406, 745; R. Exh.
16).20 Phipps decided to work through his break that day, and
visit the employees on break in the break room (Tr. 674).
Nicklin and Gomez approached Phipps, asking him if he knew
when break time was and reminding him to take his break (Tr.
153, 155). Phipps testified that the break time was actually
over, and Gomez asked him if he had taken his break (Tr. 675).
Phipps told Nicklin and Gomez that Respondent never enforced

was particularly reliable since he is testifying against his own economic
interest. Avenue Care & Rehabilitation Center, 360 NLRB 152, 152
fn. 2 (2014); Bloomington-Normal Seating Co., 339 NLRB 191, 193
(2003). See also Flexsteel Industries, 316 NLRB 745 (1995), enfd. 83
F.3d 419 (5th Cir. 1996).
18 On January 27, Gomez replied to an email sent by Gutierrez to
Banda and him, informing them that they asked an employee to take his
scheduled breaks and lunch (GC Exh. 18). On February 5, Gomez sent
an email to Nicklin and Banda describing how he enforced the break
and lunch times for two employees who exceeded the time permitted or
the time that the break/lunch needed to be taken (GC Exh. 17). Nicklin
responded to Garcia, Banda, Gomez and Shreeve, stating “We need to
make sure everyone is breaking at the times set by the supervisors.”
(GC Exh. 17). Nicklin commented that further incidents of not taking
breaks as scheduled would result in these employees receiving verbal
CPDRs.
19 Vaivao testified that he has received emails similar to the one sent
by Gomez, copying other supervisors and managers, concerning em-
ployees not taking their breaks when scheduled (Tr. 317–321). How-
ever, Vaivao could not recall specific examples (Tr. 324–326). Nicklin
similarly could not recall specific examples (Tr. 466–467, 475–476).
20 Nicklin, Gomez and Phipps provided differing accounts of when
the conversation took place on February 11, and what was actually said.
These differences are to be expected, and determining what was actual-
ly said and when is not relevant to the outcome in this decision. What
is relevant is that Nicklin and Gomez observed Phipps not taking his
break, and based on Phipps’ comments, they spoke to their superiors
about their interaction with Phipps.
SHAMROCK FOODS CO. 7
its break policy, and that they were changing its enforcement
(Tr. 675). Phipps also told them that he takes his breaks as
needed so he can speak to employees about the Union and that
Nicklin and Gomez may verify this with the attorneys (GC Exh.
8; Tr. 676, 721–722).21 Phipps told them that Nicklin was not
allowed to change or enforce policy while there was a union
campaign (Tr. 676).22
Thereafter, Phipps took his break with other employees (Tr.
681). Phipps passed out the union flyer regarding the Section
10(j) injunction, and made comments about the results (Tr.
681). After 10 minutes on break, Phipps went back to work
(Tr. 681). A couple hours later, Gomez told Phipps to go to
O’Meara’s office (Tr. 681).
Meanwhile, Nicklin and Gomez reported their encounter
with Phipps to Vaivao who then called Engdahl and Karen
Williams (Williams) (GC Exh. 8; Tr. 406, 460).23 Vaivao
spoke to human resources, and then informed O’Meara about
the situation (GC Exh. 8). O’Meara asked that Phipps be
brought into his office for a coaching opportunity. Vaivao told
Gomez to tell Phipps to come to the administrative offices (Tr.
408).
Then, Vaivao and O’Meara met with Phipps in O’Meara’s
office (Tr. 151–152; GC Exh. 8).24 At the start of the meeting,
Phipps placed his cell phone on the table to record the conver-
sation (GC Exh. 8, 22(a) and (b); Tr. 423).25
O’Meara asked Phipps about not taking his breaks as posted.
Phipps responded that Respondent changed the break policy as
to how Respondent enforced this schedule. O’Meara stated that
he did not know what Phipps was speaking about with regard to
policy and enforcement (GC Exh. 9 and 22(b)). Phipps
acknowledged the break times and that they were posted on the
schedule. O’Meara told Phipps that the break schedule was
posted and if employees do not follow the schedule then “we
have to counsel them and coach them to make sure they follow

21 Vaivao created a statement, signed on February 17 but drafted on
February 12, memorializing the incident on February 11 involving
Phipps (GC Exh. 8; Tr. 165). This statement differs significantly from
Vaivao’s testimony. In contrast to his statement, Vaivao testified that
when Nicklin and Gomez came to talk with Vaivao about Phipps com-
ments’ regarding breaks, O’Meara overheard and asked them to send
Phipps to talk with Vaivao and him (Tr. 153–154). Furthermore,
Vaivao failed to provide significant details as to his next steps after
learning of Phipps’ comments. I do not credit Vaivao’s testimony nor
do I credit his contemporaneous notes due to Phipps’ audio recording.
22 After his encounter with Phipps, Nicklin wrote a statement docu-
menting the incident (R. Exh. 14). Gomez also wrote a statement that
same day about the incident (R. Exh. 20; Tr. 832). Gomez noted that it
was 1:10 pm, and that Phipps said he takes his break when he sees fit,
and that in the middle of a union campaign Respondent cannot change
policy (R. Exh. 20). Phipps denied saying that he takes breaks when he
wants to or when he sees fit (Tr. 721–722).
23 Williams’ position was not identified in the record.
24 This meeting with Phipps was the first meeting where O’Meara
called a Phoenix warehouse employee into his office (Tr. 161–162,
426–427). O’Meara later added that when he was operations manager
in Albuquerque, he had many discussions with employees in his office
as he had an open door policy (Tr. 788).
25 Phipps’ testimony corroborated the audio recording of the meet-
ing.
the schedule” (GC Exh. 22(b)). Phipps asked if this meeting
was a disciplinary action but O’Meara denied as such but said
this was a “counseling session” for Phipps to know when to
take his breaks (Tr. 160; GC Exh. 8).26 Phipps told O’Meara
and Vaivao that Respondent was changing the enforcement of
its break policy in the middle of a union organizing campaign
(GC Exh. 8). Again, O’Meara denied knowing what Phipps
was referring to, but said he must adhere to posted break
schedules and that he could do what he wanted during the des-
ignated break time (GC Exh. 8). Phipps explained that Re-
spondent had changed the enforcement of the break policy as it
was not enforced in December 2015. Vaivao stated that noth-
ing changed with the break policy and Phipps needed to take
breaks with the rest of the team. Thereafter, the meeting con-
cluded (GC Exh. 22(b)).
On February 11, and after the District Court granted the
Board’s request for 10(j) relief, O’Meara sent a letter addressed
to Phipps, although the contents of the letter are addressed to all
Phoenix warehouse operations employees (GC Exh. 23). In
relevant part, O’Meara writes, “I also wanted to say a few quick
things about the prior situation with the Bakery, Confectionery,
Tobacco Workers and Grain Millers Union. Obviously, every-
thing that happened last year took place a long time before I
came back here, so I don’t know much about what happened or
what was said or done. I will say it’s pretty remarkable that
after more than a year, the union apparently still doesn’t have
the cards from enough people to get an election. In my opin-
ion, that’s a pretty strong statement” (GC Exh. 23).
G. February 1: Respondent Issues Verbal Warning to Meraz
On Wednesday, January 13, Meraz worked as an inbound
forklift operator on the second shift (Tr. 53, 123). On this day,
Meraz explained that he was refilling a selection slot for the
outbound portion of the warehouse (Tr. 558). Included as part
of his duties was to place a full pallet or 30 cases of ranch but-
termilk dressing which was special ordered for a catering com-
pany. Meraz could not recall specific details of the special
order pallet move, but denied that he could have placed it in the
wrong slot (Tr. 586–587). Respondent’s warehouse had no
further items of this special order product.
On Saturday morning, January 16, after reviewing from his
home the reports from the prior evening, Vaivao noticed 30
cases of one item, or one pallet, was missing and not delivered
to a customer, causing a short of 30 items (Tr. 111, 119, 146–
148, 283, 799). The missing pallet was the same special order
pallet Meraz refilled in a selection slot on January 13. Vaivao
began inquiring as to how the 30 shorts occurred. Vaivao testi-
fied that it is rare to short a customer 30 cases of one item that
was specifically ordered for a catering company (Tr. 111, 146,
211–212).

26 I do not credit Vaivao and O’Meara’s testimony regarding the
February 11 meeting with Phipps. Vaivao and O’Meara repeatedly
denied that they told Phipps that the meeting was a counseling session
but the audio recording directly contradicts their testimony (Tr. 160–
161, 424; GC Exh. 22(b)). Furthermore, in direct contrast to the audio
recording, O’Meara denied having any knowledge of Phipps mention-
ing during their conversation his talking with employees about the
Union during his breaks (Tr. 423).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Thereafter, Vaivao called Gomez and Nicklin, asking them
to find out what happened to the pallet (Tr. 118–119, 268, 485).
Gomez had already noticed from the reports that Respondent
had shorted a customer 30 items the day before (Tr. 365–366).
Gomez testified that he ultimately found the pallet after investi-
gating for 1 hour where the pallet was supposed to be placed
and by whom it was incorrectly placed (Tr. 365–367, 372–374).
Of Respondent’s managers and supervisors at Respondent,
Gomez was the first to learn that Meraz last handled the miss-
ing pallet (Tr. 859). Gomez reported to Vaivao that Meraz
scanned one location but that the pallet was missing from the
location scanned and in a different location (Tr. 120, 268).
Vaivao told Gomez to proceed with a C.P.D.R. (Tr. 122, 132,
284, 374–375).
Vaivao testified that he recommended a C.P.D.R. due to
“special circumstances” and a “perfect storm” (Tr. 122, 282–
283, 798). Vaivao stated, “This is a real special circumstances
that this pallet came in the same day, was put away the same
day, and we lost it that same day” (Tr. 122, 214).27 Vaivao also
explained that before inventory control could research where
the missing pallet went, the truck needed to leave the ware-
house for other deliveries (Tr. 126–127). Vaivao testified that
the timing also created these “special circumstances” where
there were no additional pallets of this product and the product
needed to be delivered that day (Tr. 127). Vaivao stated that he
did not consider whether Meraz’ scanner malfunctioned, ex-
plaining that if the scanner failed to work, then no location
could have been scanned (Tr. 124–125).
Before he made the decision to discipline Meraz, Vaivao tes-
tified that he did look into the possibility of another forklift
operator moving the pallet but Nicklin reviewed the video foot-
age which shows that Meraz operated the only forklift in the
area and the “transaction was very, very clean” showing that
Meraz put the pallet in the wrong location (Tr. 125, 283, 485–
486).28 Vaivao testified, “I think I looked at the video. It was
like, ‘Well. Yes, go ahead and administer a CPDR. It’s con-
sistent with what I see’” (Tr. 285).
After the investigation, on January 16, Gomez sent an email
to human resources, copying Vaivao, Nicklin, Banda and Gar-
cia, stating, “I need a CPDR on Mike Merz [sic] for not follow-
ing putaway procedures. On 1/13 he moved LPN 634319637
logically to CL2023105 but pallet was physically placed in
CL2022505. This error resulted in 30 shorts” (GC Exh. 7; Tr.
375–376).29

27 Gomez, Nicklin, and Vaivao testified that the pallet came to the
warehouse on Friday, January 15, and went missing the same date. The
record does not support their testimony, and thus, I will not credit their
version of events regarding Meraz’ discipline. Both Meraz’ CPDR
explanation as well as the task sheet from January 13 shows that the
missing pallet was moved by Meraz on January 13. No other evidence
was presented to show that Meraz or any other employee moved the
pallet again between January 13 and 16.
28 The video could not be opened by any of the parties, and could not
be entered into evidence (Tr. 879). Garcia and Vaivao testified that
they reviewed the video footage before issuing the C.P.D.R. to Meraz
(Tr. 283, 285, 343–344).
29 Many of the witnesses testified regarding “put away procedures.”
Put away procedures are not written in any of Respondent’s rules,
Also on January 16, inventory control clerk Robert “Lyric”
Coleman (Coleman) sent an email to Vaivao along with others
regarding the same missing pallet Meraz refilled in a selection
slot on January 13 (GC Exh. 7; Tr. 135). Coleman reported that
a pallet of ranch buttermilk dressing was received on January
15 by a receiver (GC Exh. 7; Tr. 138). Coleman explained,
“Pallet was received on 1/15/2016 by Tim Franks physically
but couldn’t be found in the reserve it was scanned into or the
previous reserve it was scanned in before this one. This is a
full pallet pull of 30CS so it’s quite frustrating I couldn’t locate
this pallet ALL night. Is there any way for future I can track
FTO’s for the night to see if or when they actually make the
truck or not??? That way I’m not potentially looking for pallet
that may have physically already left the entire warehouse! All
30 cases have been locked in CORPCTLR1. We took 30 outs
on this as a result” (GC Exh. 7).30 Coleman further explained
that he checked numerous pick slots including the slot where
the item was physically scanned, and also up and down aisle 20
around the pick slot (GC Exh. 7).
On or about Thursday, January 21, Gomez and Garcia met
with Meraz and gave him a verbal written warning completed
on a CPDR (Tr. 54, 337).31 Vaivao made the final decision to
issue the C.P.D.R. to Meraz (Tr. 110). The C.P.D.R. form stat-
ed that Meraz “failed to follow proper putaway procedures on
1/13/2016. Associate moved LPN 634319637 logically to
CL2023105, but physically placed pallet in CL2022505. This
error resulted in 30 shorts” (GC Exh. 5).32 In other words, Re-
spondent alleged that Meraz failed to put away a pallet in the
proper cooler location (CL) which caused the pallet to be miss-
ing and created a short, or unavailability, to the customer (Tr.
52–53; 61, 338).33 Meraz allegedly placed the pallet one bay
over from where the pallet belonged (Tr. 65). The distance
between where the pallet was scanned and where it was located
was approximately 10 feet apart (Tr. 134). The C.P.D.R. form
also stated that “any future occurrence of this kind within the
next 7 weeks may result in further disciplinary action” (GC
Exh. 5).
Meraz initially refused to sign the C.P.D.R. form, and told
Gomez and Garcia that he wanted to speak with Santamaria

procedures, manuals or handbooks (Tr. 143). Based on witness testi-
mony, improper put away procedures refers to many examples such as
failing to properly put away a product which then is crushed due to
falling (Tr. 381–382), or placing a pallet of produce in the wrong tem-
perature zone which is then a product loss (Tr. 382).
30 Coleman did not testify. The record lacks an explanation for why
Coleman used the date of January 15 as when this pallet came into the
warehouse; Tim Franks worked as a receiver, who reviews products
received in the warehouse.
31 Garcia testified that his investigation of the incident involving Me-
raz consisted of only reviewing a report which indicated that Meraz
was the last employee to handle the missing pallet (Tr. 340).
32 Santamaria described the “put away procedures” as taking the pal-
let of product, scanning the pallet and putting the pallet in the appropri-
ate location (Tr. 72).
33 In this situation, the CL number referenced in the C.P.D.R. refers
to a location in the warehouse (Tr. 64, 133). For example, CL2023105
refers to cooler location, aisle 20, 231 is the bay location, and 05 is the
level in the bay (bays go up to level 6, 30 feet in the air) (Tr. 64–65,
134, 205). Bay 231 has three slots within the bay (Tr. 134).
SHAMROCK FOODS CO. 9
(Tr. 342–343, 519).34 Garcia called Santamaria and told him
that Meraz was coming to speak to him about the C.P.D.R. and
that he would scan the C.P.D.R. and the task sheet, which
shows Meraz’ pallet moves on January 13 (Tr. 343). After
leaving the meeting with Gomez and Garcia, Meraz then went
to Santamaria who was in his office. Meraz complained that he
incorrectly received a C.P.D.R. for allegedly failing to follow
proper put away procedures (Tr. 55). Meraz recorded the entire
conversation (GC Exh. 20(a) and (b)). Meraz explained how he
believed he could not be responsible for the missing pallet,
since he worked as an inbound forklift operator and “30 shorts
is for outbound side of work” (Tr. 523, 561; GC Exh. 20(a) and
(b)). Furthermore, Meraz told Santamaria that no one contacted
him that evening about the missing pallet, and he would have
looked for it as well (Tr. 525–526). Meraz disagreed that the
inventory control employee could not have found the missing
pallet since it was found only two bays over (Tr. 526). Meraz
told Santamaria that he planned to “file” allegations with out-
side agencies because he disagreed with the discipline (Tr. 56,
524).
Santamaria went with Meraz to the warehouse floor to phys-
ically review the locations at issue (Tr. 59, 61, 527). After
seeing the location where the pallet was found, Santamaria
stated that inventory control should have been written up (Tr.
528; GC Exh. 20(a) and (b) at 7 (“Ok, hey, if anything why
isn’t the inventory guy written up as well?”)). Meraz com-
plained that there were issues with the scanners which could
have caused the error (Tr. 68, 528–529). On the way back to
Santamaria’s office, Santamaria and Meraz called over another
forklift operator, and asked the employee to confirm that the
scanner system sometimes kicks the locations from the forklift
operators’ scanners when they are in aisle 18 through 20 (Tr.
67–68, 70, 79–80, 530, 587–588). Thereafter, Santamaria told
Meraz he needed to “do some research” and investigate such as
speaking with inventory control, and would get back with Me-
raz (Tr. 52–53, 61–62).
Subsequently, Santamaria reviewed Meraz’ pallet move-
ments on January 13 (Tr. 70, 74). Santamaria testified that he
did not speak to Gomez or Garcia about the C.P.D.R. they is-
sued to Meraz (Tr. 71). Despite stating that he would do so,
Santamaria did not speak to Inventory Control Clerk Coleman
who looked for the missing pallet (Tr. 70, 74, 76–77).
On January 25, Vaivao sent an email to Nicklin telling him
to send to Santamaria all information he had regarding the issue
of the missing pallet, and to copy O’Meara on the email (GC
Exh. 7).35 Vaivao explained that after learning that Meraz re-
fused to sign the C.P.D.R., he asked Nicklin to send the infor-
mation to Santamaria since Meraz mentioned to Garcia that he
would be going to Santamaria (Tr. 136). Thereafter, Santama-
ria, along with O’Meara, received an email from Nicklin on
January 25 with the subject line, “FW: CPDR—Mike Me-
raz/FW: Missing Pallet Item #2263551” (GC Exh. 6). The

34 Vaivao testified that he received a phone call informing him that
Meraz refused to sign the C.P.D.R. (Tr. 137).
35 Vaivao testified that he told Nicklin to copy O’Meara on the email
because “he’s my boss. I normally copy him on everything that comes
my way. I make sure that he understands” (Tr. 137).
email included as an attachment a screen shot of Meraz’ tasks
on January 13 (GC Exh. 6). This screen shot shows that Meraz
pulled the special pallet order at 18:30, and at 18:32 Meraz
scanned that product into CL2023105 which was not the loca-
tion where the special order pallet was ultimately found (Tr. 79;
GC Exh. 6).
After his investigation, Santamaria recommended disciplin-
ing Meraz because he determined that Meraz was the last em-
ployee to handle the pallet, and inventory control could not find
the pallet at the location where it was scanned (Tr. 77–78, 85,
88). Santamaria did not consider the possibility that Meraz’
scanner failed to function properly at the time of the incident
(Tr. 78–79).36 Santamaria also did not consider whether anoth-
er forklift operator moved the product to the location where it
was ultimately found, not where it was scanned (Tr. 80). San-
tamaria explained that because forklift operators are paid by
their “moves” of pallets, a forklift operator would not move a
product without scanning the item (Tr. 80–81).
Before Santamaria met with Meraz, Meraz approached
Vaivao about the C.P.D.R. (Tr. 139, 266). Vaivao told Meraz
that Santamaria planned to talk with him, and that Santamaria
and Vaivao would both go over the C.P.D.R. with Meraz (Tr.
139–140, 266–267).
On February 1, Santamaria and Vaivao met with Meraz to
discuss the C.P.D.R. (Tr. 78, 128–129; GC Exh. 21(b)). Meraz
recorded this conversation as well (GC Exh. 20(b)). Santama-
ria testified that this was the first time he spoke to Vaivao about
this incident with Meraz (Tr. 128).37 Santamaria told Meraz
that he would be receiving discipline for the incident because
Meraz was the last employee to “touch” the pallet; Meraz disa-
greed (Tr. 553). Meraz told Vaivao and Santamaria that he
spoke with Coleman after he was initially presented the
C.P.D.R (Tr. 619–620). Coleman told Meraz that the pallet
was not physically located as indicated in the C.P.D.R. (GC
Exh. 21(b)). During this meeting, Santamaria and Vaivao told
Meraz that Coleman would be addressed separately (GC Exh.
21(b)).
Meraz ultimately signed the C.P.D.R. (GC Exh. 5). San-
tamaria testified that he could recall only one other inbound
forklift operator being disciplined for failing to follow proper
putaway procedures but he could not recall any details (Tr. 82–

36 Garcia and Gomez testified that a couple of months prior to the
hearing, Respondent repaired the warehouse antennas that transmit
information from the scanners to the computer system (Tr. 348, 385).
Respondent repaired the signals on these antennas many times in the
past year because the forklift operators complained that they were
losing signal (Tr. 348, 385). When the scanners lose the signal, the
forklift operators are frozen out of the computer system (Tr. 348).
Gomez admitted that the forklift operators complained to him about the
scanner system kicking them out (Tr. 385).
37 Vaivao’s testimony is inconsistent, and not credible as to whether
he knew Santamaria was investigating the incident involving Meraz
after Vaivao recommended disciplining Meraz (Tr. 130). At one point
in his testimony, Vaivao explained that he did not know about the in-
vestigation until Santamaria sought to meet with Meraz. At another
point in his testimony, Vaivao appears to admit that he knew Santama-
ria was investigating this incident but Vaivao denied speaking with
Santamaria during the investigation (Tr. 130, 266–267).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
84). Respondent did not discipline any other employees over
this incident with Meraz, including the inventory control clerks
(Tr. 801–802).
Vaivao provided an example of a disciplinary action issued
to a forklift operator. Respondent issued a verbal warning to
Carl McCormack, on March 24, 2015, when he mislabeled 24
apple juice cases which resulted in a mispick and ultimately, a
short to a customer (R. Exh. 18). Shortly thereafter, Respond-
ent suspended McCormack for excessive mispicks which re-
sulted in shorts to customers (R. Exh. 19).
Nicklin testified that previously, inbound forklift operators
have been disciplined for failing to follow putaway procedures
(Tr. 477). When asked to provide details, Nicklin could not
provide any specifics, and stated, “I know it’s happened. I
don’t recall exactly when” (Tr. 477).
Gomez explained that he issued verbal warnings in February
2014 to forklift operators/receivers for a break down in proce-
dures when the incorrect expiration date for a product was en-
tered into the system (R. Exh. 21, 22, 23). However, the disci-
pline concerned the receiver function, not as a forklift operator
(Tr. 861–862). In addition, Gomez issued a verbal warning to
another receiver/forklift operator in January 2013 when he
mistagged pallets which resulted in mispicks (R. Exh. 24, 25).
But again, this discipline concerned the receiver function, not
forklift operation (Tr. 862). Finally, in April 2014, Gomez
issued a verbal warning to another forklift operator for failure
to follow putaway procedures when he improperly stacked
pallets causing the product to be crushed (R. Exh. 27a–27e, 28).
Gomez included photos of the aisle in which the forklift opera-
tor improperly stacked the pallets. Gomez also testified that
other forklift operators have been disciplined for similar inci-
dents as Meraz but could not provide any specific details (Tr.
866).
III. ANALYSIS
A. Legal Standards
Under Section 8(a)(3) of the Act, an employer may not dis-
criminate with regard to the hire, tenure, or any term or condi-
tion of employment in order to encourage or discourage mem-
bership in a labor organization. See Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied,
455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). To establish unlaw-
ful activity under Wright Line, the burden is on the General
Counsel to initially establish that a substantial or motivating
factor in the employer’s decision to take an adverse employ-
ment action against an employee was the employee’s union or
other protected activity. In order to establish this initial show-
ing of discrimination, the evidence must prove: (1) the employ-
ee engaged in union or concerted activity; (2) the union or con-
certed activities were protected by the Act; (3) the employer
knew of the concerted nature of the activities; and (4) the ad-
verse action taken against the employee was motivated by the
activity.38

38 To be protected under Section 7 of the Act, the employee conduct
must be both “concerted” and engaged in for the purpose of “mutual aid
or protection.” These elements are analytically distinct, and must be
The Board will consider circumstantial evidence as well as
direct evidence to infer discriminatory motive or animus, such
as (1) timing or proximity in time between the protected activi-
ty and adverse action; (2) delay in implementation of the disci-
pline; (3) departure from established discipline procedures; (3)
disparate treatment in implementation of discipline; (4) inap-
propriate or excessive penalty; and (4) employer’s shifting or
inconsistent reasons for discipline. Camaco Lorain Mfg. Plant,
356 NLRB 1182, 1185 (2011); Ronin Shipbuilding, 330 NLRB
464 (2000); CNN America, Inc., 361 NLRB 439 (2014) (citing
W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995));
Brink’s, Inc., 360 NLRB 1206, 1206 fn. 3 (2014).
Once the General Counsel has met its initial burden that the
protected conduct was a motivating or substantial reason in the
employer’s decision to take the adverse action, the employer
has the burden of production by presenting evidence the action
would have occurred even absent the protected concerted activ-
ity. Bally’s Atlantic City, 355 NLRB 1319, 1321 (2010) (ex-
plaining that where the General Counsel makes a strong initial
showing of discriminatory motivation, the employer’s rebuttal
burden is substantial), enfd. 646 F.3d 929 (D.C. Cir. 2011).
The General Counsel may offer proof that the employer’s artic-
ulated reason is false or pretextual. Pro-Spec Painting, 339
NLRB 946, 949 (2003) (noting that where an employer’s rea-
sons are false, it can be inferred that the real motive is one that
the employer desires to conceal—an unlawful motive—at least
where the surrounding facts tend to reinforce that inference).
Under Section 8(a)(4) of the Act, it is unlawful for an em-
ployer to discipline or otherwise discriminate against an em-
ployee because he/she has filed charges with the Board, has
testified in Board proceedings and/or has provided testimony in
Board investigations. NLRB v. Scrivener, 405 U.S. 117 (1972).
In cases where motive is an issue, the Board analyzes Section
8(a)(4) and (1) violations under the Wright Line framework.
B. The 8(a)(4), (3), and (1) allegations regarding Phipps
1. Phipps’ Protected, Concerted Activity, and the
Employer’s knowledge
The record is undisputed that since April 2015, Respondent
was well aware of Phipps’ activity of promoting the Union at
the Phoenix warehouse, including his role in the prior unfair
labor practice proceeding and request for injunctive relief.
Vaivao and Gomez admitted that they knew about the union
organizing campaign and Phipps’ public role in recruiting em-
ployees to support union representation. Furthermore, due to
Phipps’ high profile role in the union campaign, Respondent
knew that Phipps spoke to employees about the union organiz-
ing campaign and passed out flyers. These flyers included
information about the change in upper management when
O’Meara came in to manage the warehouse, and when the Dis-
trict Court granted the Board’s request for injunctive relief. In
addition, Phipps testified in the September 2015 unfair labor
practice hearing, and provided affidavits to support the Board’s
request for injunctive relief. In total, Phipps’ engaged in union
activity which was protected by the Act, and this activity was

analyzed under an objective standard. Fresh & Easy Neighborhood
Market, 361 NLRB 151, 153 (2014).
SHAMROCK FOODS CO. 11
well known by Respondent.
2. Respondent violated Section 8(a)(4), (3), and (1) when on
January 24 it strictly enforced the employee break schedule
The General Counsel alleges that Respondent strictly en-
forced its break schedule on January 24 because employees
including Phipps engaged in protected activity. Respondent
does not appear to dispute that it enforced its break schedule
but instead argues that employees including Phipps would have
been treated the same absent the protected activity. Respondent
insists that the break schedule has always been enforced.
The Board has found that changes in enforcing an existing
policy such as a break schedule can violate the Act. Print Ful-
fillment Services, 361 NLRB 1243, 1246 (2014) (employer’s
stricter enforcement of work rules in response to employee’s
union activity violated Section 8(a)(3) of the Act). As dis-
cussed further, the timing as well as Respondent’s demonstrat-
ed animus strongly points to unlawful motivation for the en-
forcement of the break schedule.
All witnesses in this proceeding testified consistently that
Respondent provides two 15-minute breaks and one meal break
per shift. Furthermore, all witnesses testified that breaks should
be taken at the designated time with exceptions permitted only
by supervisors. This break schedule has been in existence for
many years. However, the testimony diverges at this point as to
whether Respondent permitted employees to take their breaks
at other times prior to January 24. Both Phipps and Sheffer
credibly testified that prior to January 24 the employees could
adjust their break schedules as long as these variations did not
interfere with the operations of the warehouse. Sheffer further
explained that he had never been disciplined for not taking his
break during the designated time periods, nor was there any
discussion about the break schedule with employees. On Janu-
ary 24, however, Respondent changed its work operations, and
began to enforce the previously unenforced break schedule.
Although denied by Banda, I find that he held a meeting with
Phipps and other forklift operators confirming that the break
schedule would now be enforced. Respondent’s break schedule
was now enforced for all employees, and Respondent spoke to
several employees about taking their breaks when designated.
Respondent also began to place the breaktimes on the employ-
ees’ work schedule.
The question then becomes whether Respondent strictly en-
forced its break schedule for all employees in response to union
activity, including Phipps’ union activity. I find that the record
shows clear animus towards Phipps’ union activity and the
union activity by other employees, and that Respondent’s en-
forcement of its break schedule was due to the union activity at
the Phoenix warehouse.39 Timing is key. Reno Hilton Resorts
v. NLRB, 196 F.3d 1275, 1283 (D.C. Cir. 1999). Phipps began
organizing the warehouse in early 2015, and continued to do so

39 The General Counsel urges me to give “persuasive authority” to
Judge Wedekind’s February 11 decision to establish evidence of prior
unfair labor practices which can support Respondent’s unlawful moti-
vation (GC Br. at 27). Because Judge Wedekind’s decision is not final,
I cannot give it persuasive authority or any consideration in this deci-
sion. Any unlawful motivation or animus, as I find in this decision, is
based upon the record in this proceeding alone.
throughout 2015 and into 2016. Phipps continued to place
flyers in the break room and continued to talk with employees
during their breaks. Less than 6 months prior to the warehouse
reorganization, Phipps testified in support of the Union at an
unfair labor practice proceeding. Phipps also provided affida-
vits in support of the Board’s request for injunctive relief.
Phipps placed flyers in the warehouse break room in December
2015 warning employees that even though Respondent replaced
the warehouse director with O’Meara, Respondent still main-
tained an antiunion stance. O’Meara also incredibly denied
knowing much, if anything, about union activity at the ware-
house. It is improbable that Respondent transferred O’Meara to
the Phoenix warehouse in late 2015 without informing him
about the union campaign. Phipps clearly used breaks to pass
out Union flyers and speak with the employees on the other
shifts. By enforcing this break schedule, which was previously
unenforced, circumstantial evidence shows that Respondent
sought to prevent Phipps from talking to employees about the
Union during break times other than his own. Under Wright
Line, Phipps engaged in union activity, Respondent had
knowledge of the activity, and Respondent bore animus to-
wards this activity. Thus, the General Counsel has established
a prima facie case.
The burden then shifts to Respondent. Respondent asserts
that pursuant to the January 24 schedule change, they sought to
make sure that all employees knew with whom and what times
they should take their breaks. Respondent claims that their
actions show no animus but rather “An intention to protect
associates from conflicting demands” (R. Br. at 13). Respond-
ent also asserts that they enforced the break schedule with all
employees which undermine the General Counsel’s theory of
animus towards Phipps. On the surface, it seems that Respond-
ent’s actions appear legitimate. However, looking at the entire
picture of what was occurring at the warehouse undermines
Respondent’s arguments. Phipps had been working for the past
year trying to organize the warehouse. Phipps did not relent in
his actions as indicated by his December 2015 union flyer. By
using a change in operations to enforce a previously unenforced
break schedule, Respondent sought to hide its unlawful motiva-
tion behind a business reason. Furthermore, for many years,
Respondent tolerated, or looked the other way, when employ-
ees altered their breaks. Under a totality of the circumstances,
Respondent’s actions were a pretext to prevent Phipps from
meeting with employees on other breaks. Respondent also
enforced its break schedule with all employees, ensuring that
they took their breaks as scheduled rather than allowing flexi-
bility as previously permitted. As such, I find that the General
Counsel has established, by a preponderance of the evidence,
that Respondent violated Section 8(a)(4), (3) and (1) of the Act.
3. Respondent violated Section 8(a)(4), (3), and (1) of the Act
when it subjected Phipps to closer supervision on January 26
and February 11
Closely supervising an employee due to union activity vio-
lates the Act. T & T Machine Co., 278 NLRB 970, 973 (1986).
Respondent alleges that the General Counsel failed to support
this claim whereas the General Counsel alleges that Respondent
singled out Phipps to supervise his break times.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
A Wright Line analysis needs to be performed with the bur-
den of proof on the General Counsel. As addressed above, I
find that Phipps engaged in protected union activity, and Re-
spondent was well aware of his actions. Furthermore, I find
that Respondent closely supervised Phipps with an illegal mo-
tive. On two occasions after the start of enforcing the break
schedule, Respondent noticed Phipps not taking his break dur-
ing the time allocated. On January 26, after speaking to Phipps,
along with another employee, Gomez sent an email to all su-
pervisors and managers in the warehouse reporting his observa-
tions. It was an unusual practice for Respondent to include all
managers and supervisors on such a communication.40 To fur-
ther support the General Counsel’s theory, Gomez reported on
other employees not taking their breaks as scheduled but he
sent those emails only to one to two other supervisors which
undermines Respondent’s claim that these emails were sent to
all managers and supervisors to keep them informed. Com-
municating Phipps’ whereabouts to all supervisors and manag-
ers can only lead to an inference that Respondent supervised
him more closely.
Also on February 11, soon after the District Court granted
the Board’s request for injunctive relief and Phipps began hand-
ing out flyers informing employees of the same, Nicklin and
Gomez again observed Phipps not taking his break as sched-
uled. They confronted him, which led to O’Meara and
Vaivao’s meeting with Phipps. As with the enforcement of the
break schedule, the timing of Respondent’s actions is suspect.
Since February 9, Phipps began handing out flyers publicizing
the District Court’s order. In so doing, Phipps also met with
employees during their breaks to discuss the injunction order.
Respondent failed to produce any evidence that prior to January
24 Phipps failed to take his break as scheduled thereby leading
me to infer that Respondent closely supervised Phipps in Janu-
ary and February. Palagonia Bakery Co., 339 NLRB 515, 528
(2003) (employer violated Sec. 8(a)(3) and (1) of the Act by
following a leading union adherent around the plant); Interna-
tional Paper Co., 313 NLRB 280 (1993) (employer illegally
followed an employee at a plant in an effort to thwart his sup-
port of the union).
I disagree with Respondent’s argument that the General
Counsel has failed to produce evidence concerning “the typical
level of supervision at the warehouse” thereby abandoning its
allegation (R. Br. at 10). The General Counsel does not need to
provide evidence contrasting the “typical level of supervision”
with “closer supervision.” Instead, the General Counsel, under
Wright Line only needs to prove that Respondent’s actions were
based on a discriminatory motive. Again, the overwhelming
evidence shows that Respondent sought to ensure that Phipps
took his own breaks which prevented him from meeting with
other employees to discuss the Union. See Stabilus, Inc., 355
NLRB 836 (2010) (finding that the employer violated the Act
when it told a union supporter he could not eat lunch where
previously permitted, telling employees who were normally
free to converse with coworkers they could not talk about the
union, and standing around watching and monitoring activities

40 Both Vaivao and Nicklin testified to the contrary but failed to pro-
duce any examples; thus I do not credit their testimony.
of union supporters amounted to an effort to crack down on
union supporters and inhibit their ability to organize their
coworkers). In addition, based on the credible testimony of
Phipps and Sheffer, employees were able to take their breaks
with some degree of flexibility, and the record is devoid of
evidence that Respondent spoke to employees before January
24 about their breaks or even sent emails to one another about
employee breaks.
Based on the above, I find that Respondent violated Section
8(a)(4), (3), and (1) of the Act by closely supervising Phipps on
January 26 and February 11.
4. Respondent violated Section 8(a)(4), (3) and (1) of the Act
by verbally disciplining Phipps on February 11
The General Counsel alleges that Respondent counseled
Phipps on February 11 after he told Nicklin and Gomez that he
was delaying his break that day to talk to employees with an-
other break time about the Union. Respondent argues that
Phipps was not disciplined on February 11.
Again, as set forth above, a Wright Line analysis applies.41
Phipps engaged in protected union activity which was well-
known to Respondent. Before addressing the issue of animus, I
must first address the issue of whether Phipps was disciplined
on February 11. O’Meara called Phipps into his office to talk
with Vaivao and him about why he did not take his break as
scheduled. Since Phipps told Nicklin and Gomez that he de-
layed taking his break to talk with the employees on another
break schedule about the Union, I reasonably infer that Nicklin
and Gomez told O’Meara and Vaivao what Phipps told them.
During this meeting, O’Meara and Vaivao repeatedly told
Phipps that he was being counseled about taking his breaks
with others. Respondent argues that the use of the term “coun-
seling” was mere semantics since O’Meara told Phipps he was
not being disciplined. Furthermore, Respondent argues that
O’Meara and Vaivao never used counseling as the first step of
discipline so even if they used the term counseling they were
not intending to discipline Phipps.
The circumstances presented indicate that Respondent disci-
plined Phipps by counseling him on February 11. First, Phipps
was called into O’Meara’s office with Vaivao. Although only
in the Phoenix warehouse for a short time, O’Meara’s meeting
with Phipps was the first time he called an employee into his
office. Furthermore, O’Meara is the highest ranking official
working at the warehouse. Rather than permitting Phipps’ first
level supervisor to speak with him about the break schedule,
O’Meara chose to talk with Phipps directly. Also, O’Meara
repeatedly told Phipps that he was being counseled, not
coached as O’Meara testified. Counseling is the first step in
Respondent’s disciplinary process. Even though no counseling
memos or any other forms of discipline were placed in Phipps’
personnel folder, the disciplinary policy does not indicate if
such notation is required. Respondent argues that Phipps knew
that counseling, although listed as the first level of discipline in

41 An analysis under Atlantic Steel Co., 245 NLRB 814, 816 (1979),
is unnecessary as Respondent is not arguing that Phipps’ actions lost
the protection of the Act. Furthermore, I independently find that an
Atlantic Steel analysis is not needed.
SHAMROCK FOODS CO. 13
the employee handbook, was never used as a first level of dis-
cipline. Even if Phipps knew that Respondent did not counsel
employees in the past as the first line of discipline, an employee
could reasonably assume that they were being disciplined.
Furthermore, O’Meara and Vaivao could also recall this meet-
ing for purposes of discipline in the future. See Altercare of
Wadsworth Center for Rehabilitation, 355 NLRB 565, 566
(2010) (finding verbal warnings not documented in employees’
personnel folder as required by employer’s policy were never-
theless discipline for purposes of progressive discipline where
supervisor would likely remember it). Thus, I find that the
February 11 meeting constituted an adverse action.
Now, turning to animus, much of the same animus as found
previously applies here. The same week that Phipps was close-
ly supervised, Phipps passed out flyers regarding the District
Court’s decision granting injunctive relief. Thus the timing of
this adverse action comes on the heels of Phipps’ latest union
activity. The Sheraton Anchorage, 363 NLRB No. 6 (2015)
(finding that an employee’s discharge which occurred 2 months
after giving testimony “substantially adverse” to his employer,
suggests that the motivation behind his termination was his
protected activity, his testimony). Respondent’s argument that
because Phipps had been distributing flyers for the past year
with no prior discipline that Respondent could not have been
motivated by animus on February 11 is nonsensical. The totali-
ty of the evidence shows that Respondent harbored animus
towards Phipps’ union activities. Also, Respondent did not
discipline any other employees for taking their breaks not at the
designated time, and in fact tolerated such behavior previously.
Discriminatory motive will often be inferred when the employ-
er has long tolerated similar conduct. Cadbury Beverages v.
NLRB, 160 F.3d 24 (D.C. Cir. 1998) (firing employee for
changing lunch schedule where written policy against doing so
previously never enforced). Furthermore, the same day that
O’Meara and Vaivao met with Phipps, O’Meara sent a letter to
all employees addressing the union organizing campaign, not-
ing that the Union still does not have the showing of interest to
have an election which in his opinion was a “pretty strong
statement.” This statement hints at animus towards the union
campaign. Respondent’s actions were a pretext to prevent
Phipps from discussing the Union with other employees. Ac-
cordingly, the discipline violated Section 8(a)(4), (3), and (1) as
alleged.
C. The 8(a)(4), (3) and (1) Allegations Regarding Meraz
1. Meraz’ protected, concerted activity, and the Employer’s
knowledge
The record is also clear that Respondent was aware of Me-
raz’ prounion stance. Although Meraz was not as vocal as
Phipps with regard to his union support, Meraz passed out un-
ion flyers and submitted an affidavit to the Board to support the
request for injunction. Also, Meraz attended 2 days of the Sep-
tember 2015 unfair labor practice hearing. Thus, Meraz en-
gaged in protected union activity. In addition, Vaivao, who is
second in command at the warehouse, admitted to knowing that
Meraz supported the Union. Thus, the employer had
knowledge of Meraz’ protected union activity.
2. Respondent violated Section 8(4), (3), and (1) of the Act
when on February 1 it issued a verbal warning to Meraz
The General Counsel argues that Respondent unlawfully is-
sued a verbal warning to Meraz as proven by its disparate
treatment of Meraz, poor investigation of the missing pallet,
and pretext. Respondent argues that no animus existed toward
Meraz and the discipline issued was justified.
Under the legal framework of Wright Line, the General
Counsel may prove animus by the record as a whole including
timing, disparate treatment, and failure to conduct an adequate
investigation. Brink’s, Inc., 360 NLRB 1206, 1206 1 fn. 3
(2014). I find that the General Counsel has proven its burden
for the following reasons.
First, Respondent’s investigation into the missing pallet was
poorly conducted. Vaivao and Santamaria admitted not seri-
ously considering whether any other forklift operator moved
the pallet. Vaivao relied upon the video recording of the inci-
dent. However, he testified in an uncertain manner as to
whether he reviewed the video himself but then later stated that
the video showed clearly that Meraz moved the missing pallet.
They also did not consider whether the scanners were not work-
ing that day even though there had been reports from other
forklift operators of problems with the scanners. Furthermore,
Santamaria, who conducted his own investigation after the
CPDR was initially issued, did not speak to inventory control
clerk Coleman. Coleman emailed Vaivao complaining about
not being able to find this missing pallet, which was received
the day before and moved by another employee. Coleman’s
email raises suspicion as to whether the missing pallet was only
moved by Meraz. However, Santamaria did not question
Coleman or any other inventory control clerk. American Crane
Corp., 326 NLRB 1401, 1417 (1998) (the Board held that an
employer’s investigation is evidence of discriminatory motive
when it fails to interview key witnesses). Even when Meraz
told Vaivao and Santamaria on February 1 that Coleman told
him that the missing pallet was not found where Respondent
claimed, neither Vaivao nor Santamaria questioned Coleman.
The weight of the evidence shows that Respondent failed to
conduct an adequate investigation to justify disciplining Meraz.
Secondly, the reasons provided by Vaivao for the discipline
are pretextual. Vaivao testified that the missing pallet created
“special circumstances” since it was received, moved and miss-
ing all the same day. Gomez and Nicklin testified similarly. In
contrast, Meraz’ task sheet shows that he moved the pallet 2
days prior to the item becoming missing. The CPDR issued to
Meraz listed the dates on the task sheet of when the item was
received and where it was placed. Vaivao failed to reconcile
any of these differences before deciding to discipline Meraz.
False reasons are evidence of unlawful motive. See Lucky Cab
Co., 360 NLRB 271, 277–278 (2014).
Third, based on the evidence presented, Meraz is the only
forklift operator Respondent disciplined for not following prop-
er put away procedures. Respondent claims that another fork-
lift operator committed a similar failure when he mislabeled a
case of juice which caused a short to a customer. Respondent
also provided an example of a forklift operator who failed to
stack pallets properly resulting in damage to product. Re-
spondent provided a few other examples but no other employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
ees’ alleged misconduct compares to that alleged against Me-
raz. When questioned regarding similar situations, Nicklin and
Gomez could not provide any other examples but were certain
they have disciplined employees for similar misconduct in the
past. Thus, Respondent engaged in disparate treatment of Me-
raz when it failed to prove it disciplined other employees for
failure to follow proper put away procedures. See Carpenters
Health & Welfare Fund, 327 NLRB 262 (1998) (finding dis-
parate treatment where employer offered no evidence that it had
ever discharged others for violating telephone policy); Consec
Security, 325 NLRB 453 (1998) (finding disparate treatment
where employer failed to demonstrate it had ever discharged an
employee for reason provided).
Furthermore, contrary to Respondent’s argument, the Gen-
eral Counsel need not prove specific animus toward Meraz, but
instead generalized animus towards protected concerted activi-
ty. In this instance, along with its other unfair labor practices,
Respondent’s action of enforcing its break schedule to ensure
that Phipps and other pro-union employees could not speak to
employees demonstrates Respondent’s animus towards the
union campaign. EZ Park, Inc., 360 NLRB 672, 672 fn. 3
(clarifying that Wright Line does not require a showing of par-
ticularized animus) (2014); Encino Hospital Medical Center,
360 NLRB 335, 337 fn. 6 (2014); EF International Language
Schools, Inc., 363 NLRB No. 20, slip op. at 1 fn. 2 (2015).
Respondent failed to satisfy its burden of proof that it would
have disciplined Meraz despite his protected conduct. “It is . . .
well settled . . . that when a respondent’s stated motives for its
actions are found to be false, the circumstances may warrant an
inference that the true motive is an unlawful one that the re-
spondent desires to conceal.” Fluor Daniel, Inc., 304 NLRB
970, 970 (1991), citing Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466 (9th Cir. 1966). In sum, based on the above anal-
ysis, I find that Respondent violated Section 8(a)(4), (3), and
(1) of the Act when it issued a verbal warning to Meraz on
February 1 for failing to follow proper put away procedures.
CONCLUSIONS OF LAW
Respondent, Shamrock Foods Company, has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Union has been a labor organization within the meaning
of Section 2(5) of the Act.
By subjecting its employees, including Steve Phipps, on Jan-
uary 24 to stricter enforcement of its previously unenforced
break schedule, Respondent violated Section 8(a)(4), (3), and
(1) of the Act.
By subjecting Steve Phipps to closer supervision on January
26 and February 11, Respondent violated Section 8(a)(4), (3),
and (1) of the Act.
By verbally disciplining Steve Phipps on February 11, Re-
spondent violated Section 8(a)(4), (3), and (1) of the Act.
By issuing a verbal warning to Michael Meraz on February
1, Respondent violated Section 8(a)(4), (3), and (1) of the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I recommend that Respondent cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act. In this regard, Respondent shall
expunge Meraz’ February 1 verbal warning and any discipline
related to Phipps’ February 11 verbal discipline from their rec-
ords. Respondent shall also cease and desist from more strictly
enforcing its employee break schedule and closer supervision
of Phipps. I will order that the Employer post a notice in the
usual manner, including electronically to the extent mandated
in J. Picini Flooring, 356 NLRB 11, 15–16 (2010). In accord-
ance with J. Picini Flooring, the question as to whether an elec-
tronic notice is appropriate should be resolved at the compli-
ance phase. Id. at 13.
The General Counsel requests that the notice be read aloud at
the Phoenix facility to further effectuate the policies and pur-
poses of the Act. Requiring an owner or high official of a
company or a Board agent to read aloud the notice to its assem-
bled employees has not been typically required except in unu-
sual circumstances. The reading aloud of a notice is an “ex-
traordinary” remedy, and has been ordered in egregious cir-
cumstances. Federated Logistics & Operations, 340 NLRB
255, 256–257 (2003); see also McAllister Towing & Transpor-
tation Co., 341 NLRB 394, 400 (2004) (ordered remedy in-
cluded Board agent to read aloud notice to the employees to
“ensure a free and fair rerun election”). In my opinion, look-
ing at the allegations underlying this decision alone, the con-
duct of Respondent in this case does not warrant the recom-
mendation of an “extraordinary” remedy. Respondent’s prior
unfair labor practice, which was affirmed by the Board, oc-
curred in 2003 thereby being too remote in time to recommend
such a remedy.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended42
ORDER
Respondent, Shamrock Foods Company, Phoenix, Arizona,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) More strictly enforcing its break schedule with employ-
ees, including Steve Phipps, because they engaged in protected
concerted activities.
(b) Closely supervising Steve Phipps due to his protected
concerted activities.
(c) Issuing a verbal discipline to Steve Phipps for engaging
in protected concerted activity.
(d) Issuing a verbal warning to Michael Meraz for engaging
in protected concerted activity.
(e) 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.

42 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. 15
(a) Within 14 days of the date of the Board’s Order, remove
from its files any reference to Steve Phipps’ verbal discipline
and Michael Meraz’ verbal warning and within 3 days thereaf-
ter, notify each individually in writing that this has been done
and that the discipline will not be used against them in any way.
(b) Within 14 days after service by the Region, post at its fa-
cility in Phoenix, Arizona, the attached notice marked “Appen-
dix”43 on forms provided by the Regional Director for Region
28, after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition
to physical posting of paper notices, the notices shall be distrib-
uted electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Respond-
ent 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. 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 Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees em-
ployed by the Respondent at any time since January 24, 2016.
(c) 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. September 28, 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 more strictly enforce the previously unen-
forced break schedule due to your protected concerted activity.
WE WILL NOT subject Steve Phipps to closer supervision
due to his protected concerted activity.

43 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.”
WE WILL NOT discipline Steve Phipps and Michael Meraz
for their protected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under Sec-
tion 7 of the National Labor Relations Act.
WE WILL, within 14 days from the date of this Order, re-
move from our files any references to the unlawful verbal dis-
cipline of Steve Phipps and verbal warning of Michael Meraz,
and notify each individually in writing that this has been done
and that the discipline will not be used against them in any way.
SHAMROCK FOODS COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28–CA–169970 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.